query_id
stringlengths 4
6
| query
stringlengths 75
2.13k
| positive_passages
listlengths 1
1
| negative_passages
listlengths 20
20
|
|---|---|---|---|
661439 | "which in capital cases include the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ('ABA Guidelines')."" Victor Hooks II , 689 F.3d at 1201 (quoting Young v. Sirmons , 551 F.3d 942, 957 (10th Cir. 2008) ). ""Among the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences."" Young , 551 F.3d at 957. ""Counsel has a duty to conduct a 'thorough investigation-in particular, of mental health evidence-in preparation for the sentencing phase of a capital trial.' "" Victor Hooks II , 689 F.3d at 1201 (quoting Michael REDACTED accord Littlejohn I , 704 F.3d at 860. ""[D]rawing on a trilogy of Supreme Court cases- [Terry]Williams v. Taylor , 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Wiggins v. Smith , 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard , 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) -involving ineffective assistance at capital-sentencing proceedings[,]"" Littlejohn I , 704 F.3d at 860, we divined the following three principles: First, the question is not whether counsel did something ; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which" | [
{
"docid": "2226674",
"title": "",
"text": "U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s performance must be “completely unreasonable” to be constitutionally ineffective, not “merely wrong.” Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.1997). When the issue is the adequacy of counsel’s investigation for the sentencing phase of a capital trial,, “hindsight is discounted by pegging adequacy to ‘counsel’s perspective at the time’ investigative decisions are made.” Rompilla v. Beard, 545 U.S. 374, 381, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). To assess the thoroughness of counsel’s investigation and counsel’s overall performance, the Court must conduct an objective review measured for “reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052). We are “highly deferential” to counsel’s decision, and a petitioner must “overcome the presumption that counsel’s conduct was not constitutionally defective.” Wallace, 191 F.3d at 1247. Our analysis today is guided by the Supreme Court’s recent jurisprudence emphasizing the importance of thorough investigation — in particular, of mental health evidence — in preparation for the sentencing phase of a capital trial. While initially, the Supreme Court applied Strickland rather narrowly, see, e.g., Burger v. Kemp, 483 U.S. 776, 789-92, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987), this is no longer the case. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), counsel conducted some inquiries, but the Court required a more robust, complete investigation, tethered at minimum to the norms of adequate investigation articulated by the American Bar Association Standards for Criminal Justice. Because of counsels’ deficient investigations, the Supreme Court overturned the petitioners’ death sentences in each case. In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court, for the first time under Strickland’s two-part test, reversed a death sentence based on an ineffective"
}
]
| [
{
"docid": "17262483",
"title": "",
"text": "539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)—involving ineffective assistance at capital-sentencing proceedings.” Victor Hooks, 689 F.3d at 1201 (referring to the discussion in Wilson, 536 F.3d at 1084-85). We set forth “three important principles” that are derived from these cases: First, the question is not whether counsel did something; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence. Wilson, 536 F.3d at 1084-85 (emphasis added) (internal quotation marks omitted) (citations omitted); see id. at 1085 (noting that “[o]ur own Circuit has emphasized this [due-diligence] guiding principle”). Moreover, in Victor Hooks, we underscored the importance of a specific type of mental-health evidence—that is, evidence relating to organic or physical brain injury: Evidence of organic brain damage is something that we and other courts, including the Supreme Court, have found to have a powerful mitigating effect.... And for good reason—the involuntary physical alteration of brain structures, with its attendant effects on behavior, tends to diminish moral culpability, altering the causal relationship between impulse and action. See Victor Hooks, 689 F.3d at 1205 (citations omitted). Because of its central significance, where the defendant’s circumstances put it in play, ordinarily it would be “patently unreasonable for [counsel] to omit this evidence from his case for mitigation.” Smith v. Mullin, 379 F.3d 919, 942 (10th Cir.2004); see id. (noting “evidence of [petitioner’s] mental retardation, brain damage, and troubled background constituted mitigating evidence” and, indeed, is “exactly the sort of evidence that garners the most sympathy from jurors”). If counsel’s performance at sentencing was deficient, we must then assess whether the petitioner was prejudiced as a result."
},
{
"docid": "17262481",
"title": "",
"text": "1140 (‘We approach these issues with ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’ and that ‘the challenged action might be considered sound trial strategy.’ ” (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052)). However, while we entertain “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Matthews, 577 F.3d at 1190 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052) (internal quotation marks omitted), we nevertheless apply “closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case,” Cooks v. Ward, 165 F.3d 1283, 1294 (10th Cir.1998); see also Osborn v. Shillinger, 861 F.2d 612, 626 n. 12 (10th Cir.1988) (“[T]he minimized state interest in finality when resentencing alone is the remedy, combined with the acute interest of a defendant facing death, justify a court’s closer scrutiny of attorney performance at the sentencing phase.”); cf. Wellons v. Hall, 558 U.S. 220, 130 S.Ct. 727, 728, 175 L.Ed.2d 684 (2010) (per curiam) (“From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”). Counsel must perform in accordance with “prevailing professional norms.” Young v. Sirmons (Julius Young), 551 F.3d 942, 956-57 (10th Cir.2008) (quoting Wiggins, 539 U.S. at 523, 123 S.Ct. 2527). In capital cases, we refer to the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (“ABA Guidelines”) in assessing those “professional norms.” Id. at 957. Generally, “[a]mong the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences.” Id. (emphasis added). Counsel must conduct a “thorough investigation—in particular, of mental health evidence—in preparation for the sentencing phase of a capital trial.” Wilson, 536 F.3d at 1083. “We recently had occasion to expound on this principle, drawing on a trilogy of Supreme Court cases—Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Wiggins v. Smith,"
},
{
"docid": "23311575",
"title": "",
"text": "Counsel in Death Penalty Cases (“ABA Guidelines”). Young v. Sirmons, 551 F.3d 942, 957 (10th Cir.2008) (citing Wiggins, 539 U.S. at 523, 123 S.Ct. 2527). “Among the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences.” Id. Counsel has a duty to conduct a “thorough investigation — in particular, of mental health evidence — in preparation for the sentencing phase of a capital trial.” Wilson, 536 F.3d at 1083. We recently had occasion to expound on this principle, drawing on a trilogy of Supreme Court cases—Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)—involving ineffective assistance at capital-sentencing proceedings. Surveying those cases, we divined “three important principles”: First, the question is not whether counsel did something; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence. Our own Circuit has emphasized this guiding principle. In Smith v. Mullin, 379 F.3d 919, 942 (10th Cir.2004), we held that it was “patently unreasonable” for trial counsel to fail to present evidence of Smith’s borderline mental retardation, brain damage, and troubled childhood, and stated that this type of mitigating evidence “is exactly the sort of evidence that garners the most sympathy from jurors.” Wilson, 536 F.3d at 1084-85 (citations omitted). If we find that counsel’s performance at sentencing was deficient, we must then analyze the prejudicial effect on Mr. Hooks’s defense. Prejudice means “a reasonable probability that, but"
},
{
"docid": "21810454",
"title": "",
"text": "the prejudice prong, a petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “When a petitioner alleges ineffective assistance of counsel stemming from a failure to investigate mitigating evidence at a capital-sentencing proceeding, Ve evaluate the totality of the evidence—both that adduced at trial, and the evidence adduced in habeas proceedings.’ ” Williams v. Trammell, 782 F.3d 1184, 1215 (10th Cir. 2015) (quoting Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004)), cert. denied, — U.S. -, 136 S. Ct. 806, 193 L.Ed.2d 726 (2016). In doing so, we “reweigh the evidence in aggravation against the totality of available mitigating evidence,” Hooks v. Workman, 689 F.3d 1148, 1202 (10th Cir. 2012) (quoting Young v. Sirmons, 551 F.3d 942, 960 (10th Cir. 2008)), considering “the strength of the State’s case and the number of aggravating factors the jury found to exist, as well as the mitigating evidence the defense did offer and any additional mitigating evidence it could have offered,” Knighton, 293 F.3d at 1178. “[W]e must consider not just the mitigation evidence that Defendant claims was wrongfully omitted, but also what the prosecution’s response to that evidence would have been.” [Michael] Wilson v. Trammell, 706 F.3d 1286, 1306 (10th Cir. 2013); accord Grant v. Trammell, 727 F.3d 1006, 1022 (10th Cir. 2013). At the end of the day, “[i]f ‘there is a reasonable probability that at least one juror would have struck a different balance’—viz., that ‘at least one juror would have refused to impose the death penalty’—prejudice is shown.” Hooks, 689 F.3d at 1202 (citations omitted) (first quoting Wiggins v. Smith, 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); then quoting Wilson v. Sirmons, 536 F.3d 1064, 1124 (10th Cir. 2008) (Hartz, J., concurring)). Under the foregoing rubric, we begin by discussing the salient aspects of the procedural history and factual background of Mr. Littlejohn’s ineffective-assistance claim. We then turn to whether the more comprehensive factual record now before us lends force to Mr. Littlejohn’s"
},
{
"docid": "23311576",
"title": "",
"text": "investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence. Our own Circuit has emphasized this guiding principle. In Smith v. Mullin, 379 F.3d 919, 942 (10th Cir.2004), we held that it was “patently unreasonable” for trial counsel to fail to present evidence of Smith’s borderline mental retardation, brain damage, and troubled childhood, and stated that this type of mitigating evidence “is exactly the sort of evidence that garners the most sympathy from jurors.” Wilson, 536 F.3d at 1084-85 (citations omitted). If we find that counsel’s performance at sentencing was deficient, we must then analyze the prejudicial effect on Mr. Hooks’s defense. Prejudice means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To assess prejudice arising out of counsel’s errors at a capital-sentencing proceeding, we must “reweigh the evidence in aggravation against the totality of available mitigating evidence.” Young, 551 F.3d at 960 (quoting Wiggins, 539 U.S. at 534, 123 S.Ct. 2527) (internal quotation marks omitted). If “there is a reasonable probability that at least one juror would have struck a different balance,” Wiggins, 539 U.S. at 537, 123 S.Ct. 2527—viz., that “at least one juror would have refused to impose the death penalty,” Wilson, 536 F.3d at 1124 (Hartz, J., concurring)—prejudice is shown. Based on these principles, we find that counsel’s performance during the sentencing phase was woefully inadequate. Not only did he mount “an extraordinarily limited case in mitigation,” Anderson v. Sirmons, 476 F.3d 1131, 1146 (10th Cir.2007), but his own statements and the statements of his testifying expert served to vilify Mr. Hooks in the eyes of the jury. These failures raise a"
},
{
"docid": "2226676",
"title": "",
"text": "assistance of counsel claim. See Jenny Roberts, Too Little, Too Late: Ineffective Assistance of Counsel, The Duty to Investigate, and Pretrial Discovery in Criminal Cases, 31 Fordham Urb. L.J. 1097, 1110 (2004). The Court focused not on what was presented at trial, but on the adequacy of trial counsel’s preparation for the mitigation phase. Williams, 529 U.S. at 396, 120 S.Ct. 1495. To evaluate the reasonableness of trial counsel’s preparation, the Court looked to the standards for adequate investigation expressed in the ABA Standards for Criminal Justice. Id. at 396, 120 S.Ct. 1495 (citing 1 ABA Standards for Criminal Justice 4-4.1, cmt., p. 4-55 (2d ed.1980)). The Court found that undiscovered evidence of an abusive childhood and borderline mental retardation may have “influenced the jury’s appraisal of his moral culpability.” Id. at 398, 120 S.Ct. 1495. Soon after, the Court decided Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), again focusing on trial counsel’s investigation and stressing that counsel, in most cases, must pursue all reasonable leads. In Wiggins, trial counsel employed a psychologist, used Social Services Records, and read through the Presentence Investigation Report to prepare for the mitigation phase. The Court nonetheless found counsel’s investigation unreasonable, as he did not prepare a forensic social history report as recommended by the ABA, and failed to pursue leads he already had suggesting his client suffered from a history of abuse and neglect. Id. at 524, 123 S.Ct. 2527. The Court stressed that it is “not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further” that is the appropriate inquiry under Strickland. Id. at 527, 123 S.Ct. 2527. It also reminded us that physical and sexual abuse and diminished mental capacities compose the kind of “troubled history” that may diminish moral culpability. Id. at 535, 123 S.Ct. 2527. Most recently, in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), the Court reaffirmed that counsel’s unreasonably limited investigation cannot withstand scrutiny under Strickland. Counsel in Rompilla conducted a"
},
{
"docid": "12167843",
"title": "",
"text": "prejudice.” Aplt. Br. at 22. For the reasons outlined below, however, we conclude the district court was correct in its analysis of both prongs of the Strickland test. 1. Trial counsel’s deficient performance “In assessing [defense] counsel’s investigation” of available mitigating evidence in a capital case, a federal habeas court “must conduct an objective review of [defense counsel’s] performance, measured for ‘reasonableness under prevailing professional norms\" Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). Those prevailing professional norms, according to the Supreme Court, include the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty-Cases (ABA Guidelines). Id. at 524, 123 S.Ct. 2527. Under the ABA Guidelines, “investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’ ” Id. (quoting 1989 version of ABA Guidelines). Among the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences. Id. (citing 1989 version of ABA Guidelines). In this case, Young submitted, in connection with his direct appeal and request for evidentiary hearing, a transcript of a tape-recorded interview that his appellate counsel conducted with his lead trial counsel, Jim Fransein. In that interview, Fransein stated that he had “briefly” “talked with a couple” of the proposed second-stage mitigation witnesses prior to trial, but that his plan had been to interview each of the mitigation witnesses in somewhat greater depth immediately prior to the start of the second-stage proceedings. ROA, Vol. II, Doc. 23, Exh. 3 at 12. Fransein stated that his plan was derailed, however, when he was informed by Young’s mother on the morning of the start of the second-stage proceedings that she had sent all of the mitigation witnesses home. When asked about the possibility of presenting expert psychological witnesses during the second-stage proceedings, Fransein counsel stated that he had considered obtaining such"
},
{
"docid": "15185651",
"title": "",
"text": "70 F.3d 1032, 1043 (9th Cir.1995) (holding that counsel’s performance was deficient for failing to investigate readily available evidence of mental impairment). [2] The imperative to cast a wide net for all relevant mitigating evidence is heightened at a capital sentencing hearing because “[t]he Constitution prohibits imposition of the death penalty without adequate consideration of factors which might evoke mercy.” Caro, 165 F.3d at 1227 (internal quotation marks and citation omitted). Although counsel’s duty to seek out evidence of mitigation is not limitless, the Supreme Court has recognized that the failure to pursue avenues of readily available information — such as school records, juvenile court and probation reports, and hospital records — may constitute deficient performance. Rompil-la v. Beard, 545 U.S. 374,-, 125 S.Ct. 2456, 2463, 162 L.Ed.2d 360 (2005); see also Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that counsel failed to “fulfill their obligation to conduct a thorough investigation of the defendant’s background” for purposes of sentencing and thus failed to uncover voluminous evidence of a “nightmarish childhood” in juvenile court records). The Supreme Court has also made clear that when counsel is on notice that important mitigation evidence exists, a failure to uncover and present such evidence at the penalty phase represents ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (holding counsel’s failure to prepare a social history report fell below professional standards where counsel was on notice of severe family dysfunction). Lieman’s deficient performance is readily apparent from a comparison of the facts in the record to the facts in Rompilla. In Rompilla, defense counsel knew that the prosecution was seeking the death penalty by presenting aggravating evidence of the defendant’s history of violent felony convictions. See 125 S.Ct. at 2464. Nonetheless, counsel did not review any part of the defendant’s publicly available criminal history record, including the trial transcript from which the prosecution read evidence into the record. Id. As the Court emphasized, “it flouts prudence to deny that a defense lawyer should try to look at"
},
{
"docid": "17262482",
"title": "",
"text": "conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”). Counsel must perform in accordance with “prevailing professional norms.” Young v. Sirmons (Julius Young), 551 F.3d 942, 956-57 (10th Cir.2008) (quoting Wiggins, 539 U.S. at 523, 123 S.Ct. 2527). In capital cases, we refer to the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (“ABA Guidelines”) in assessing those “professional norms.” Id. at 957. Generally, “[a]mong the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences.” Id. (emphasis added). Counsel must conduct a “thorough investigation—in particular, of mental health evidence—in preparation for the sentencing phase of a capital trial.” Wilson, 536 F.3d at 1083. “We recently had occasion to expound on this principle, drawing on a trilogy of Supreme Court cases—Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)—involving ineffective assistance at capital-sentencing proceedings.” Victor Hooks, 689 F.3d at 1201 (referring to the discussion in Wilson, 536 F.3d at 1084-85). We set forth “three important principles” that are derived from these cases: First, the question is not whether counsel did something; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence. Wilson, 536 F.3d at 1084-85 (emphasis added) (internal quotation marks omitted) (citations omitted); see id. at 1085 (noting that “[o]ur own Circuit has emphasized this [due-diligence] guiding principle”)."
},
{
"docid": "23311574",
"title": "",
"text": "in this case. Because Ms. Hill’s testimony would have been of limited utility, Mr. Evans’s failure to subpoena her to testify, even if professionally unreasonable, was not prejudicial. We therefore affirm the district court’s denial of habeas relief as to Mr. Hooks’s conviction. 2. Counsel’s Performance During the Sentencing Phase While we entertain “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Matthews, 577 F.3d at 1190 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052), we nevertheless apply “closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case,” Cooks, 165 F.3d at 1294; see also Osborn v. Shillinger, 861 F.2d 612, 626 n. 12 (10th Cir.1988) (“[T]he minimized state interest in finality when resentencing alone is the remedy, combined with the acute interest of a defendant facing death, justify a court’s closer scrutiny of attorney performance at the sentencing phase.”). We judge counsel’s performance by reference to “prevailing professional norms,” which in capital cases include the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (“ABA Guidelines”). Young v. Sirmons, 551 F.3d 942, 957 (10th Cir.2008) (citing Wiggins, 539 U.S. at 523, 123 S.Ct. 2527). “Among the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences.” Id. Counsel has a duty to conduct a “thorough investigation — in particular, of mental health evidence — in preparation for the sentencing phase of a capital trial.” Wilson, 536 F.3d at 1083. We recently had occasion to expound on this principle, drawing on a trilogy of Supreme Court cases—Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005)—involving ineffective assistance at capital-sentencing proceedings. Surveying those cases, we divined “three important principles”: First, the question is not whether counsel did something; counsel must conduct a full"
},
{
"docid": "23589477",
"title": "",
"text": "phase of a death penalty case in light of the fundamental constitutional requirement that the fact-finder render a decision based upon full consideration of available mitigating evidence. Williams, 529 U.S. at 393, 120 S.Ct. 1495; Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The “catch-all” provision of Pennsylvania’s death penalty statute, 42 Pa. Cons.Stat. Ann. § 9711(e)(8), permits the fact-finder to consider “[a]ny ... evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” To ensure this is a meaningful process, counsel has an “obligation to conduct a thorough investigation” for mitigating evidence. Williams, 529 U.S. at 396, 120 S.Ct. 1495 (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1980)). The investigation must include “efforts to discover all reasonably available mitigating evidence,” including information about “medical history, educational history, employment and training history, [and] family and social history.” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, §§ 11.4.1(C), 11. 8.6 (1989) (emphasis omitted)); accord Rompilla v. Beard, 545 U.S. 374, 380-81, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). We evaluate counsel’s investigation under Strickland’s reasonableness standard, based on prevailing professional norms, such as those found in the ABA Standards for Criminal Justice. See Outten v. Kearney, 464 F.3d 401, 417 (3d Cir.2006). Applying these standards in Wiggins, the Supreme Court held that counsel’s decision not to expand his investigation of the defendant’s life history beyond the pre-sentence investigation report and Department of Social Services records fell short of prevailing professional standards. The Court reasoned that prevailing norms of practice as reflected in the 1989 ABA standards were guides to determining what is reasonable, 539 U.S. at 522, 123 S.Ct. 2527, and the pre-sentence report and records provided valuable leads that counsel unreasonably ignored: “[A]ny reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice,” particularly given the absence of prior convictions or other negative information (such"
},
{
"docid": "18433562",
"title": "",
"text": "Anderson did not suffer prejudice as a result of the deficient performance. “[T]his court ... reviews de novo whether counsel’s performance was legally deficient and whether the deficiencies prejudiced the [petitioner].” Bryan, 335 F.3d at 1216. As the district court did not conduct an evidentiary hearing, but instead decided the case on the record presented by the parties, this court independently reviews the facts relating to counsel’s performance and prejudice. Allen v. Mullin, 368 F.3d 1220, 1234 (10th Cir.2004). 1. Performance “The sentencing stage is the most critical phase of a death penalty case. Any competent counsel knows the importance of thoroughly investigating and presenting mitigating evidence.” Romano v. Gibson, 239 F.3d 1156, 1180 (10th Cir. 2001). To perform adequately in a capital case, trial counsel must undertake “ ‘to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’ ” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C) (1989) [hereinafter 1989 Guidelines]); see also ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 10.7(A) (2003) [hereinafter 2003 Guidelines]. Counsel should consider, inter alia, medical history, educational history, social and family history, religious and cultural influences, and employment. See 2003 Guidelines 10.7, Commentary. Anderson contends trial counsel wholly failed to investigate potential mitigation evidence, instead focusing almost exclusively on the guilt phase of the trial. The result, according to Anderson was that trial counsel failed to adduce at trial substantial amounts of mitigating evidence and failed to adequately rebut the case in aggravation presented by the prosecution. The district court agreed, concluding “the investigation conducted in preparation for the second phase of [Anderson’s] trial fell below prevailing professional norms.” Anderson, No. CIV-01-177-M, slip op. at 48. “[C]ognizant of the overwhelming importance of the role mitigation evidence plays in the just imposition of the death penalty,” Smith, 379 F.3d at 939, this court agrees with the district court and concludes trial counsel’s failure to investigate and"
},
{
"docid": "23589476",
"title": "",
"text": "truly an independent claim or, rather, an argument that Taylor should have raised when his competence was litigated before the first PCRA court, we will review the question de novo. We do so because under either standard of review, the claim lacks merit. See, e.g., Holloway v. Horn, 355 F.3d 707, 719 & n. 6, 729 (3d Cir.2004) (reviewing de novo and under AEDPA, noting that result would be the same under either standard). Moreover, because Taylor sought an evi-dentiary hearing before the District Court in order to present new mitigating evidence that trial counsel had failed to uncover, we must evaluate Taylor’s failure to establish the factual basis for his ineffective assistance claim under § 2254(e)(2). To the extent that the state courts did make factual findings relevant to counsel’s assistance, they are binding unless Taylor can rebut “the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Appel, 250 F.3d at 210. B. Federal Standards: Ineffective Assistance of Counsel in the Penalty Phase We evaluate counsel’s assistance in the penalty phase of a death penalty case in light of the fundamental constitutional requirement that the fact-finder render a decision based upon full consideration of available mitigating evidence. Williams, 529 U.S. at 393, 120 S.Ct. 1495; Eddings v. Oklahoma, 455 U.S. 104, 110-12, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The “catch-all” provision of Pennsylvania’s death penalty statute, 42 Pa. Cons.Stat. Ann. § 9711(e)(8), permits the fact-finder to consider “[a]ny ... evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.” To ensure this is a meaningful process, counsel has an “obligation to conduct a thorough investigation” for mitigating evidence. Williams, 529 U.S. at 396, 120 S.Ct. 1495 (citing 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-55 (2d ed.1980)). The investigation must include “efforts to discover all reasonably available mitigating evidence,” including information about “medical history, educational history, employment and training history, [and] family and social history.” Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting ABA Guidelines for the Appointment"
},
{
"docid": "2193703",
"title": "",
"text": "is reasonable.’ ” — U.S. at - - -, 123 S.Ct. at 2536-37. In its discussion of the 1989 ABA Guidelines for counsel in capital cases, the Court held that the Guidelines set the applicable standards of performance for counsel: [I]nvestigations into mitigating evidence “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989).... Despite these well-defined norms, however, counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Id. at 2537 (emphasis in original). The Court then also adopted ABA guideline 11.8.6, which it described as stating that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences. Id. (Emphasis in original.) Thus, the Wiggins case now stands for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the “prevailing professional norms” in ineffective assistance cases. This principle adds clarity, detail and content to the more generalized and indefinite 20-year-old language of Strickland quoted above. Prior to the Wiggins case, our Court in a series of cases had dealt with the failure of counsel to investigate fully and present mitigating evidence at the penalty phase of the case. Our analysis of counsel’s obligations matches the standards of the 1989 Guidelines quoted by the Supreme Court in Wiggins. In Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir.1995), Judge Nelson for himself and Judge Guy (Judge Siler dissenting) set aside the death verdict on grounds of ineffective assistance of counsel at the penalty phase. The Court held that counsel must perform a full and complete investigation of mitigating evidence including the defendant’s “history, background and organic brain damage.” 71 F.3d at 1207. The Court also held that this investigation should be conducted"
},
{
"docid": "2193702",
"title": "",
"text": "80 L.Ed.2d 674 (1984), did the court begin to define specifically what the “effective assistance of counsel” means. There the Court said that counsel in such cases must act with “reasonableness under prevailing professional norms” as “guided” by “American Bar Association standards and the like.” This standard includes counsel’s “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” But the Court went on to say that under this standard “judicial scrutiny of counsel’s performance must be highly deferential,” and that the defendant must overcome “a strong presumption” that counsel’s action is reasonable because any “detailed guidelines ... would encourage the proliferation of ineffectiveness challenges.” In the most recent case on ineffective assistance, Wiggins v. Smith, — U.S. -, 123 S.Ct. 2527, 156 L.Ed.2d 471, decided June 26, 2003, the Court held by a 7-2 vote that counsel’s investigation and presentation “fell short of the standards for capital defense work articulated by the American Bar Association ... standards to which we have long referred as ‘guides to determining what is reasonable.’ ” — U.S. at - - -, 123 S.Ct. at 2536-37. In its discussion of the 1989 ABA Guidelines for counsel in capital cases, the Court held that the Guidelines set the applicable standards of performance for counsel: [I]nvestigations into mitigating evidence “should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989).... Despite these well-defined norms, however, counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources. Id. at 2537 (emphasis in original). The Court then also adopted ABA guideline 11.8.6, which it described as stating that among the topics counsel should consider presenting are medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences. Id. (Emphasis in original.) Thus, the Wiggins case now stands for the"
},
{
"docid": "2226678",
"title": "",
"text": "more thorough investigation than in the prior two cases, speaking with five family members and employing three experts who examined the defendant’s mental health at the time of the offense. Id. at 381-82, 125 S.Ct. 2456. Rompilla himself was unhelpful and even sent counsel on false leads. Id. at 381, 125 S.Ct. 2456. Despite this, the Court found counsel ineffective. The Court again relied on the ABA Standards, holding that counsel must investigate everything relevant to the penalty phase, regardless of the accused’s admissions or statements. Rompilla, 545 U.S. at 387, 125 S.Ct. 2456 (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2d. ed 1982 Supp.)). As in Wiggins, knowledge of potential leads was critical in triggering the duty to continue investigating, and as in both prior cases, the Court found that the evidence of child abuse and mental health problems would have been persuasive in the mitigation phase. Id. at 392-93, 125 S.Ct. 2456. These cases stand for three important principles. First, the question is not whether counsel did something-, counsel must conduct a full investigation and pursue reasonable leads when they become evident. See Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir.2006) (stating that in Williams and Wiggins, the Supreme Court “made it clear and c[a]me down hard on the point that a thorough and complete mitigation investigation is absolutely necessary in capital cases.”); Smith v. Dretke, 422 F.3d 269, 278-79 (5th Cir.2005) (same). Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Rompilla, 545 U.S. at 387 n. 7, 125 S.Ct. 2456 (“[The 1989] Guidelines appl[y] the clear requirements for investigation.... ”); Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (“[T]he standards for capital defense work articulated by the American Bar Association (ABA) ... [should be used] as ‘guides to determining what is reasonable.’ ”). Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue"
},
{
"docid": "21082207",
"title": "",
"text": "forward the “effective assistance of counsel” principles first established in capital cases in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and Strickland, the Supreme Court, in the last three years, in two different death penalty ineffective assistance of counsel cases, has made it clear and come down hard on the point that a thorough and complete mitigation investigation is absolutely necessary in capital cases. The Court has relied on 1989 and 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, for the required norms and duties of counsel. Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (incorporating the 1989 Guidelines as stating the required professional obligation to conduct a complete mitigation investigation); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2466 n. 7, 162 L.Ed.2d 360 (2005) (relying on 2003 ABA Guidelines as “later, and current, ABA Guidelines relating to death penalty defense”). Our Court has also made it clear that this means that counsel for defendants in capital cases must fully comply with these professional norms, Hamblin v. Mitchell, 354 F.3d 482, 485-88 (6th Cir.2003) (briefly outlining the historical development of the requirement of effective assistance of counsel in capital cases). In Hamblin we said that in order to satisfy the requirements of the effective assistance of counsel requirement of the Sixth Amendment, ABA Guidelines establish the relevant criteria: New ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins or our court’s previous cases concerning counsel’s obligation to investigate mitigation circumstances .... Id. at 487. We then quoted the ABA Guidelines that create the required standards of performance for counsel in capital cases regarding the investigation of mitigating circumstances, norms that Dickerson’s counsel fell far short of meeting: Counsel’s duty to investigate and present mitigating evidence is now well established. The duty to investigate exists regardless of the expressed desires of a client."
},
{
"docid": "21082206",
"title": "",
"text": "the Sixth Amendment right to effective assistance of counsel has two elements: a petitioner must show (1) that counsel’s performance was deficient, and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is beyond dispute that the Strickland standard, a broad standard of general application predating Dickerson’s trial, constitutes in this ease “clearly established Federal law, as determined by the Supreme Court of the United States.” See Williams, 529 U.S. at 391, 120 S.Ct. 1495; Davis v. Straub, 430 F.3d 281, 292 (6th Cir.2005) (Merritt, J., dissenting) (discussing the Supreme Court’s adoption of the “spectrum of abstraction” of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), in construing 28 U.S.C. § 2254(d)(1)). A. Deficiency 1. Failure to Conduct a Thorough and Complete Mitigation Investigation To establish deficiency, the first element of the Strickland test, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Carrying forward the “effective assistance of counsel” principles first established in capital cases in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and Strickland, the Supreme Court, in the last three years, in two different death penalty ineffective assistance of counsel cases, has made it clear and come down hard on the point that a thorough and complete mitigation investigation is absolutely necessary in capital cases. The Court has relied on 1989 and 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, for the required norms and duties of counsel. Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (incorporating the 1989 Guidelines as stating the required professional obligation to conduct a complete mitigation investigation); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2466 n. 7, 162 L.Ed.2d 360 (2005) (relying on 2003 ABA Guidelines as “later, and current, ABA Guidelines relating to death penalty defense”). Our Court has also made it clear that this means that counsel for"
},
{
"docid": "21333425",
"title": "",
"text": "Sears v. Upton, 561 U.S. 945, 130 S.Ct. 3259, 177 L.Ed.2d 1025 (2010) (per curiam) (1993 trial); Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per curiam) (1988 trial); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (1988 trial); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (1989 trial); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (1986 trial). .Of course, we recognize the ABA Guidelines serve as guides to what is reasonable attorney performance, rather than inexorable commands. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2065 (“Prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable, but they are only guides.”); see also Bobby v. Van Hook, 558 U.S. 4, 7, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009) (per curiam) (\"Restatements of professional standards, we have recognized, can be useful as guides to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.” (quotation omitted)). Thus, when considering the guidance offered by the ABA standards in existence at the time of Mr. Daniel’s 2003 trial, we are also mindful of Strickland’s admonition: \"[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” 466 U.S. at 688-89, 104 S.Ct. at 2065. . The ABA Guidelines in effect at the time of Mr. Daniel’s 2003 capital trial reaffirmed that \"counsel has a duty to investigate the case thoroughly,” recognizing \"[c]ounsel's duty to investigate and present mitigating evidence.” ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 10.7, commentary (Rev. Feb. 2003). “Because the sentencer in a capital case must consider in mitigation, anything in the life of the defendant which might militate against the appropriateness of the. death penalty for the defendant, ... [c]ounsel needs"
},
{
"docid": "1363873",
"title": "",
"text": "law, as determined by the Supreme Court of the United States.’ ”) (quoting 28 U.S.C. § 2254(d)(1)); Bell v. Cone, 535 U.S. 685, 697-98, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (clarifying that Strickland is the rule that courts must apply to claims challenging the effectiveness of trial counsel during a capital sentencing hearing). However, we conclude that the Ohio court applied this standard to the facts of Jells’s case in an objectively unreasonable manner. 1. Deficient Performance In addition to the general Strickland standard regarding deficient performance, the Supreme Court has provided specific guidance with respect to reasonable professional assistance during the sentencing phase of a capital case. See Rompilla, 545 U.S. at 381-90, 125 S.Ct. 2456; Wiggins, 539 U.S. at 521-29, 123 S.Ct. 2527; Williams, 529 U.S. at 395-97, 120 S.Ct. 1495. In particular, the Court has recognized that counsel in a capital case has an “obligation to conduct a thorough investigation of the defendant’s background” to determine the availability of mitigating evidence. Williams, 529 U.S. at 396, 120 S.Ct. 1495 (citing ABA Standard for Criminal Justice 4-4.1 (2d ed.1980)); see also Anderson, 460 F.3d at 802 (“Defense counsel’s complete failure to investigate before deciding not to present mitigating evidence is deficient performance as a matter of law under Strickland.”); Harries v. Bell, 417 F.3d 631, 637 (6th Cir.2005) (“Counsel’s constitutional duty to investigate a defendant’s background in preparation for the sentencing phase of a capital trial is ‘well-established.’ ”) (quoting Coleman v. Mitchell, 268 F.3d 417, 449 (6th Cir.2001)). Counsel’s “investigations into mitigating evidence ‘should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.’” Wiggins, 539 U.S. at 524, 123 S.Ct. 2527 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C) (1989)); accord Hamblin, 354 F.3d at 486 (finding Wiggins to “stand[] for the proposition that the ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the ‘prevailing professional norms’ in ineffective assistance cases”). This constitutionally required"
}
]
|
323821 | obvious and severe retroactive effect. We find nothing in IIRIRA unmistakably indicating that Congress considered the question whether to apply its repeal of § 212(c) retroactively to such aliens. We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. The judgment is affirmed. It is so ordered. See Mahadeo v. Reno, 226 F. 3d 3 (CA1 2000); Liang v. INS, 206 F. 3d 308 (CA3 2000); Tasios v. Reno, 204 F. 3d 544 (CA4 2000); Flores-Mimmontes v. INS, 212 F. 3d 1133 (CA9 2000). But see REDACTED Morales-Ramirez v. Reno, 209 F. 3d 977 (CA7 2000); Richardson v. Reno, 180 F. 3d 1311 (CA11 1999). The INS was subsequently transferred to the Department of Justice. See Matter of L, 1 I. & N. Dec. 1, n. 1 (1940). As a result, the powers previously delegated to the Secretary of Labor were transferred to the Attorney General. See id., at 2. The exercise of discretion was deemed a mine pro tunc correction of the record of reentry. In approving of this construction, the Attorney General concluded that strictly limiting the seventh exception to exclusion proceedings would be “capricious and whimsical.” Id., at 5. See 8 U. S. C. § 1101(a)(43) (1994 ed. and Supp. V). While the term | [
{
"docid": "23496022",
"title": "",
"text": "which he raised them, we dismiss this appeal for lack of jurisdiction. . This provision reads: \"Any alien who is convicted of an aggravated felony at any time after admission is deportable.\" 8 U.S.C. § 1227(a)(2)(A)(iii). . This provision reads: Any alien not described in clause (i) [inapplicable here] who— (I) has been ordered removed under section 240 or any other provision of law ... and who seeks admission within 10 years of the date of such alien's departure or removal ... is inadmissible. 8 U.S.C. § 1182(a)(9)(A)(ii). . The “permanent” rules apply to this case because the government commenced deportation proceedings against Max-George after April 1, 1997. See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 302-03 (5th Cir.1999). . See, e.g., Lerma de Garcia v. INS, 141 F.3d 215, 217 (5th Cir.1998) (holding that while under the transitional rules direct review is precluded, a limited opportunity to petition for habeas corpus remains); Williams v. INS, 114 F.3d 82, 83 (5th Cir.1997) (same); Nguyen v. INS, 117 F.3d 206, 207 (5th Cir.1997) (same). Other circuits have also written extensively on the effects of the “transitional” rules’ jurisdiction-stripping provisions. Compare Goncalves v. Reno, 144 F.3d 110, 119-25 (1st Cir.1998) (holding that, under the transitional rules, habeas review remained because Congress did not explicitly remove it); Jean-Baptiste v. Reno, 144 F.3d 212, 216-20 (2d Cir.1998) (same), DeSousa v. Reno, 190 F.3d 175, 187 (3d Cir.1999) (same); Bowrin v. INS, 194 F.3d 483, 488-90 (4th Cir.1999) (same); Pak v. Reno, 196 F.3d 666, 668, 670-72 (6th Cir.1999) (same) with Yang v. INS, 109 F.3d 1185, 1191-97 (7th Cir.1997) (describing the lack of judicial review under the transitional rules and additionally commenting that \"effective April 1, 1997, ... [I]IR[I]RA abolishes even review under § 2241, leaving only the constitutional writ, unaided by statute”). . Congress provided for limited habeas corpus review of orders denying admission to arriving aliens. See 8 U.S.C. § 1252(e)(2). Habeas review was not provided for in any other cases falling within the ambit of § 1252. Since \"[i]t is a fundamental tenet of statutory construction that Congress intended to exclude language"
}
]
| [
{
"docid": "22295805",
"title": "",
"text": "intended AEDPA § 440(d) to apply to removal proceedings against an alien ordered removed because of a pre-enactment conviction or criminal conduct has been much discussed in numerous published opinions of district courts and courts of appeals. When the past conduct under the Landgraf analysis changes from the commencement of removal proceedings to the conviction or criminal conduct, the majority of courts of appeals that have considered AEDPA § 440(d) conclude that Congress’s intent whether to apply the law retrospectively is ambiguous. See Mattis v. Reno, 212 F.3d 31, 36 (1st Cir.2000); Tasios v. Reno, 204 F.3d 544, 550 (4th Cir.2000); Magana-Pizano, 200 F.3d at 612; Requena-Rodri- guez v. Pasquarell, 190 F.3d 299, 307-8 (5th Cir.1999); DeSousa v. Reno, 190 F.3d 175, 186-87 (3d Cir.1999); Jurado-Gutier-rez v. Greene, 190 F.3d 1135, 1150 (10th Cir.1999), cert. denied Palaganas-Suarez v. Greene, — U.S.-, 120 S.Ct. 1539, 146 L.Ed.2d 352 (2000); Turkhan v. Perryman, 188 F.3d 814, 826 (7th Cir.1999). We agree with the majority of courts that have held that Congress’s intent whether to apply AEDPA § 440(d) to pre-enactment convictions is ambiguous and because the question has been thoroughly analyzed in the foregoing opinions, we do not set forth our own detailed analysis of AEDPA § 440(d). We turn now to IIRIRA § 304(b). The INS argues that, unlike AEDPA § 440(d), Congress provided specific “statutory guidance” in IIRIRA § 309(a) as to whether IIRIRA § 304 reaches back to bar an alien who pled guilty to a deportable crime before the effective date of IIRIRA. IIR-IRA § 309(a) provides that the new rules added by IIRIRA §§ 301-308, including IIRIRA’s repeal of § 212(c) relief and substitution of cancellation of removal relief contained in IIRIRA § 304(a), apply to an alien covered by the rules unless that alien is currently in removal proceedings. See IIRIRA § 309(a), 110 Stat. at 3009-625 (new rules apply except to “an alien who is in exclusion or deportation proceedings as of [April 1,1997]”). Thus, according to the INS, Congress indicated that IIRIRA’s permanent rules, including § 304, apply in cases such as St. Cyr’s"
},
{
"docid": "22651898",
"title": "",
"text": "see Max-George v. Reno, 205 F. 3d 194 (CA5 2000); Morales-Ramirez v. Reno, 209 F. 3d 977 (CA7 2000); Richardson v. Reno, 180 F. 3d 1311 (CA11 1999). The INS was subsequently transferred to the Department of Justice. See Matter of L, 1 I. & N. Dec. 1, n. 1 (1940). As a result, the powers previously delegated to the Secretary of Labor were transferred to the Attorney General. See id., at 2. The exercise of discretion was deemed a mine pro tunc correction of the record of reentry. In approving of this construction, the Attorney General concluded that strictly limiting the seventh exception to exclusion proceedings would be “capricious and whimsical.” Id., at 5. See 8 U. S. C. § 1101(a)(43) (1994 ed. and Supp. V). While the term has always been defined expansively, it was broadened substantially by IIRIRA. For example, as amended by that statute, the term includes all convictions for theft or burglary for which a term of imprisonment of at least one year is imposed (as opposed to five years pre-IIRIRA), compare § 1101(a)(43)(G) (1994 ed., Supp.V) with § 1101(a)(43)(G) (1994 ed.), and all convictions involving fraud or deceit in which the loss to the victim exceeds $10,000 (as opposed to $200,000 pre-IIRIRA), compare § 1101(a)(43)(M)(i) (1994 ed., Supp.V) with § 1101(a)(43)(M)(i) (1994 ed.). In addition, the term includes any “crime of violence” resulting in a prison sentence of at least one year (as opposed to five years pre-IIRIRA), compare § 1101(a)(43)(F) (1994 ed., Supp.V) with §1101(a)(43)(F) (1994 ed.), and that phrase is itself broadly defined. See 18 U. S. C. § 16 (“[A]n offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense”). See, e. g., Rannik, The Anti-Terrorism and Effective Death Penalty Act of 1996: A Death Sentence for the 212(c) Waiver, 28"
},
{
"docid": "22651882",
"title": "",
"text": "it could not be “impeached or reviewed”). Both §§ 1252(a)(1) and (a)(2)(C) speak of “judicial review”— that is, full, nonhabeas review. Neither explicitly mentions habeas, or 28 U. S. C. § 2241. Accordingly, neither pro vision speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute. The INS also makes a separate argument based on 8 U. S. C. § 1252(b)(9) (1994 ed., Supp. V). We have previously described § 1252(b)(9) as a “zipper clause.” A ADC, 525 U. S. 471, 483 (1999). Its purpose is to consolidate “judicial review” of immigration proceedings into one action in the court of appeals, but it applies only “[wjith respect to review of an order of removal under subsection (a)(1).” 8 U. S. C. § 1252(b) (1994 ed., Supp. V). Accordingly, this provision, by its own terms, does not bar habeas jurisdiction over removal orders not subject to judicial review under § 1252(a)(1) — including orders against aliens who are removable by reason of having committed one or more criminal offenses. Subsection (b)(9) simply provides for the consolidation of issues to be brought in petitions for “[jjudicial review,” which, as we note above, is a term historically dis tinct from habeas. See Mahadeo v. Reno, 226 F. 3d 3, 12 (CA1 2000); Flores-Miramontes v. INS, 212 F. 3d 1133, 1140 (CA9 2000). It follows that § 1252(b)(9) does not clearly apply to actions brought pursuant to the general habeas statute, and thus cannot repeal that statute either in part or in whole. If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS’ reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions. Cf. Felker, 518 U. S., at 660-661. Accordingly, we conclude that habeas jurisdiction under §2241 was not repealed by AEDPA and IIRIRA. Ill The"
},
{
"docid": "22841807",
"title": "",
"text": "of an aggravated felony, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) divests this Court of jurisdiction to consider his petition on the merits. 8 U.S.C. § 1252(a)(2)(C). Accordingly, the petition will be dismissed. It is by now well understood that under 8 U.S.C. § 1252(a)(2)(C), this Court lacks jurisdiction to consider a final order of removal against an alien convicted of one or more specified criminal offenses. Liang v. INS, 206 F.3d 308 (3d Cir.2000) is our latest pronouncement to that effect. This limitation on our jurisdiction comes into play, however, only when two facts (which have, somewhat inappropriately, come to be known as “jurisdictional facts”) exist: (1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses. The initial question before us, then- — one we have not before explicitly considered — is whether we have jurisdiction to determine whether these jurisdictional facts are present. Drakes argues, and the government concedes, that we have jurisdiction to determine our jurisdiction under § 1252(a)(2)(C). We agree, thus joining all of our sister circuits which have considered the issue. See, e.g., Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir.2001); Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir.2000): Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir.2000); Lewis v. INS, 194 F.3d 539, 542 (4th Cir.1999); Santos v. Reno, 228 F.3d 591, 597 n. 11 (5th Cir.2000); Diakite v. INS, 179 F.3d 553, 554 (7th Cir.1999) (per curiam); Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000); see also Lettman v. Reno, 168 F.3d 463, 465 (11th Cir.1999) (holding that the Court of Appeals has jurisdiction to decide its jurisdiction under the transitional rules of the IIRIRA), rev’d on other grounds, 207 F.3d 1368 (11th Cir.2000). Whether the requisite jurisdictional facts exist in a particular case is ordinarily easily determined. As the Fourth Circuit stated: [W]here ... a criminal statute on its face fits the INA’s deportability classifi cation, all convictions under that statute necessarily render an alien deportable. To go beyond the offense as"
},
{
"docid": "22295819",
"title": "",
"text": "would have an impermissible retroactive effect. ■ Under the law of the Seventh Circuit, AEDPA § 440(d) applies retrospectively unless an alien actually had conceded deportability, despite a colorable defense, in reliance upon receiving a § 212(c) waiver. See Turkhan, 188 F.3d at 827; Morales-Ramirez v. Reno, 209 F.3d 977, 982 (7th Cir.2000). We conclude that AEDPA § 440(d) and IIRIRA § 304 as applied to a guilty or nolo contendere plea that pre-dates the statutes’ enactment has an impermissible retroactive effect. In so holding, we follow the reasoning of the Fourth Circuit in Tasios v. Reno that such an application of the bar to relief would upset settled expectations and change the legal effect of prior conduct. As an initial matter, we note that it is difficult to argue that barring eligibility for discretionary relief on the basis of pre-enactment criminal conduct — as opposed to a plea going to the guilt óf a deportable crime — constitutes an impermissible retroactive application of a statute. Indeed, we agree that, It would border on the absurd to argue that these aliens might have decided not to commit drug crimes, or might have resisted conviction more vigorously, had they known that if they were not only imprisoned but also, when their prison term ended, ordered deported, they could not ask for a discretionary waiver of deportation. Jurado-Gutierrez, 190 F.3d at 1150-51 (quoting LaGuerre, 164 F.3d at 1041). Thus, we conclude that the bar to discretionary relief applies regardless of whether a legal permanent alien’s underlying criminal conduct pre-dated the AEDPA or IIR-IRA. However, in Hughes Aircraft, the Supreme Court conducted a retroactivity analysis that was not focused solely on the petitioner’s primary conduct, but also on the relevant secondary conduct. See 520 U.S. at 947-48, 117 S.Ct. 1871. Furthermore, “it is the conviction, not the underlying criminal act, that triggers the disqualification from § 212(c) relief.” Mattis, 212 F.3d at 37. Thus, in considering whether the changes to the availability of discretionary relief would alter the legal effect of conduct that predates the AEDPA and IIRIRA’s enactment, our analysis focuses on"
},
{
"docid": "22651896",
"title": "",
"text": "in the context of a criminal trial.” Ibid. As our cases make clear, the presumption against retroactivity applies far beyond the confines of the criminal law. See Landgraf, 511 U. S., at 272. And our mere statement that deportation is not punishment for past crimes does not mean that we cannot consider an alien’s reasonable reliance on the continued availability of discretionary relief from deportation when deciding whether the elimination of such relief has a retroactive effect. Finally, the fact that § 212(c) relief is discretionary does not affect the propriety of our conclusion. There is a clear difference, for the purposes of retroactivity analysis, between facing possible deportation and facing certain deportation. Cf. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 949 (1997) (an increased likelihood of facing a qui tarn, action constitutes an impermissible retroactive effect for the defendant); Lindsey v. Washington, 301 U. S. 397, 401 (1937) (“Removal of the possibility of a sentence of less than fifteen years . . . operates to [defendants’] detriment” (emphasis added)). Prior to AEDPA and IIRIRA, aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief. Because respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect. We find nothing in IIRIRA unmistakably indicating that Congress considered the question whether to apply its repeal of § 212(c) retroactively to such aliens. We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. The judgment is affirmed. It is so ordered. See Mahadeo v. Reno, 226 F. 3d 3 (CA1 2000); Liang v. INS, 206 F. 3d 308 (CA3 2000); Tasios v. Reno, 204 F. 3d 544 (CA4 2000); Flores-Mimmontes v. INS, 212 F. 3d 1133 (CA9 2000). But"
},
{
"docid": "5958408",
"title": "",
"text": "Stat. 3009-597. Thus, discretionary relief under INA § 212(c) was available at the time of Chambers’ trial, conviction, and sentencing, but not at the time that his removal procedures began. The immigration judge applied the repeal of INA § 212(c) to Chambers’ case and concluded that his application for relief under that section was “pretermitted.” J.A. 22. The Board of Immigration Appeals affirmed the decision of the immigration judge that Chambers was removable and not eligible for any form of relief from removal. Chambers then sought to challenge the Board’s ruling by filing an application for habeas relief under 28 U.S.C.A. § 2241 (West 1994). Chambers contended that the BIA’s application of IIRIRA’s repeal of INA § 212(c) produced an impermissible retroactive effect. Thus, Chambers contended that he was still eligible for discretionary relief under the version of INA § 212(c) that was in effect at the time of his conviction. Quoting Tasios v. Reno, 204 F.3d 544, 552 (4th Cir.2000), the district court rejected Chambers’ argument and held that the application of the repeal of INA § 212(c) would not “upset ‘reasonable, settled expectations and change the legal effect of prior conduct.’ ” J.A. 48. Chambers then brought this appeal, which we held in abeyance for the Supreme Court’s decision in St. Cyr. The Supreme Court has issued its decision in St. Cyr and provided guidance on the retroactive application of IIRIRA § 304(b). Having received supplemental briefs from the parties on the impact of St. Cyr on this appeal, we now address Chambers’ contention that IIRIRA § 304(b) cannot be applied in his case. In St. Cyr, the Supreme Court held that discretionary relief under INA § 212(c) “remains available for aliens ... whose convictions were obtained through plea agreements and who ... would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” 533 U.S. at 326, 121 S.Ct. 2271. We are presented with the very narrow question of whether the fact that Chambers was convicted at trial rather than by guilty plea pursuant to a plea agreement"
},
{
"docid": "22651927",
"title": "",
"text": "has the power to act retrospectively in the immigration context sheds no light on the question at issue at this stage of the Landgraf analysis: whether a particular statute in fact has such a retroactive effect. Moreover, our decision today is fully consistent with a recognition of Congress’ power to act retrospectively. We simply assert, as we have consistently done in the past, that in legislating retroactively,' Congress must make its intention plain. Similarly, the fact that Congress has the power to alter the rights of resident aliens' to remain in the United States is not determinative of the question whether a particular statute has a retroactive effect. See Chew Heong v. United States, 112 U. S. 536 (1884). Applying a statute barring Chinese nationals from reentering the country without a certificate prepared when they left to people who exited the country before the statute went into effect would have retroactively unsettled their reliance on the state of the law when they departed. See id., at 559. So too, applying IIRIRA § 304(b) to aliens who pleaded guilty or nolo contendere to crimes on the understanding that, in so doing, they would retain the ability to seek discretionary § 212(c) relief would retroactively unsettle their reliance on the state of the law at the time of their plea agreement. The recent Circuit authorities cited by the Court, which postdate IIRIRA, see Mahadeo v. Reno, 226 F. 3d 3, 12 (CA1 2000); and Flores-Miramontes v. INS, 212 F. 3d 1133, 1140 (CA9 2000)), cited ante, at 314, hardly demonstrate any historical usage upon which IIRIRA was based. Anyway, these cases rely for their analysis upon a third Court of Appeals decision — Sandoval v. Reno, 166 F. 3d 225, 235 (CA3 1999) — which simply relies on the passage from Heikkila under discussion. Justice O’Connor, dissenting. I join Parts I and III of Justice Scalia’s dissenting opinion in this case. I do not join Part II because I believe that, assuming, arguendo, that the Suspension Clause guarantees some minimum extent of habeas review, the right asserted by the alien in this"
},
{
"docid": "13991858",
"title": "",
"text": "majority could reflect. For example, the dissent noted the mari-juàna incident was Toscano's only conviction, and raised the precedent issue. This notwithstanding, Toscano did not ask the BIA to reconsider its decision. For § 2241 habeas jurisdiction to even exist per Requena-Rodriguez, Toscano must have stated a cognizable constitutional claim. He has not done so. III. For the foregoing reasons, the grant of habeas relief is REVERSED, and the petition is DISMISSED. REVERSED and DISMISSED. . INA § 212(c) was repealed effective 1 April 1997. See Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-597 (1996); see, e.g., Morales-Ramirez v. Reno, 209 F.3d 977, 981 (7th Cir.2000). Under § 304(b), criminal aliens are ineligible for waivers of exclusion. See INA § 240A, 8 U.S.C. § 1229b (replacing INA § 212(c)). . \"Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). . Max-George v. Reno, 205 F.3d 194, 202-03 (5th Cir.2000), holds that, for cases involving `aggravated felons\", 8 U.S.C. § 1101(a), the IIRIRA's permanent rules \"channel all judicial review of final orders of removal by the INS to petitions for review filed in the courts of appeals\", eliminating § 2241 habeas review. As noted, Toscano's case falls under the transitional rules. . The Government maintains that the BIA did not abuse its discretion, citing, e.g., Yahkpua v. INS, 770 F.2d 1317, 1320 (5th Cir.1985) (noting BIA is not required to render \"absolutely consistent\" opinions with similar fact patterns). . Jurisdiction vel non under § 2241 for abuse of discretion is not claimed. And, in the light of our holding, we need not address the Government's contention that denials of former § 212(c) relief do not implicate due process. See Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir.1999) (\"failure to receive"
},
{
"docid": "22295818",
"title": "",
"text": "212(c) to guilty pleas made before the AEDPA’s enactment “would upset reasonable, settled expectations and change the legal effect of prior conduct.” Tasios, 204 F.3d at 552. Accordingly, that Circuit adopted a blanket rule that AEDPA § 440(d) does not apply retroactively. See id. The First and Ninth Circuits, adopting a middle ground, determined that AEDPA § 440(d) should not apply to an alien who can make a specific showing that he or she entered a guilty or nolo contendere plea in reliance upon the relief afforded by INA § 212(c). See Mattis, 212 F.3d at 39-40; Magana-Pizano, 200 F.3d at 613-14. Finally, the Seventh Circuit has developed an approach that is in accord with the decisions of the First and Ninth Circuits. It has announced a general rule that AED-PA § 440(d)’s bar on INA § 212(e)’s discretionary relief applies retroactively to pre-enactment guilty pleas. See LaGuerre, 164 F.3d at 1041; Turkhan, 188 F.3d at 827. It has also, however, identified a particular set of circumstances where applying AEDPA § 440(d) to past conduct would have an impermissible retroactive effect. ■ Under the law of the Seventh Circuit, AEDPA § 440(d) applies retrospectively unless an alien actually had conceded deportability, despite a colorable defense, in reliance upon receiving a § 212(c) waiver. See Turkhan, 188 F.3d at 827; Morales-Ramirez v. Reno, 209 F.3d 977, 982 (7th Cir.2000). We conclude that AEDPA § 440(d) and IIRIRA § 304 as applied to a guilty or nolo contendere plea that pre-dates the statutes’ enactment has an impermissible retroactive effect. In so holding, we follow the reasoning of the Fourth Circuit in Tasios v. Reno that such an application of the bar to relief would upset settled expectations and change the legal effect of prior conduct. As an initial matter, we note that it is difficult to argue that barring eligibility for discretionary relief on the basis of pre-enactment criminal conduct — as opposed to a plea going to the guilt óf a deportable crime — constitutes an impermissible retroactive application of a statute. Indeed, we agree that, It would border on the"
},
{
"docid": "3266644",
"title": "",
"text": "his aggravated felony was also a CIMT is irrelevant. See Kim v. Gonzales, 468 F.3d 58, 62 (1st Cir.2006) (“we conclude that it would not matter even if Kim’s actions in this instance could be considered a crime of moral turpitude as well as an aggravated felony and crime of violence” because “there is no waiver authority for one who is excluded as an aggravated felon or one who commits a crime of violence”) (emphasis in original); Caroleo v. Gonzales, 476 F.3d 158, 168 (3d Cir.2007) (“It is therefore irrelevant that Caroleo’s conviction for attempted murder could have subjected him to removal as an alien convicted of a crime of moral turpitude .... Once the government has categorized his offense as a ‘crime of violence’ in removal proceedings ... our § 212(c) inquiry focuses on whether this statutory ground for removal is substantially equivalent to any of the statutory grounds for exclusion contained in INA § 212(a)”) (emphasis in original). The BIA thus did not abuse its discretion in denying Vue’s motions to reopen. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) (“The granting of a motion to reopen is ... discretionary” and “the Attorney General has broad discretion to grant or deny such motion”). III. The judgment of the BIA is affirmed, and the petition denied. . Although § 212(c) discretionary relief was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the Supreme Court held “that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.” See INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). . As relevant precedent of this court, Vue cites Shah v. Reno, 184 F.3d 719 (8th Cir. 1999). Shah considers only jurisdiction and retroactivity. Id. at 724. Shah does not address equal protection or the statutory counterpart analysis. BYE, Circuit Judge, concurring. Although I agree"
},
{
"docid": "3391515",
"title": "",
"text": "apply to him because he committed what he concedes was an aggravated felony when relief was still available under § 212(c). We have held, however, that Congress intended to repeal § 212(c) as of April 1, 1997, and that relief under that section is not available to aliens whose removal proceedings were brought after that date. Lara-Ruiz, 241 F.3d at 943-44. There are two limited exceptions to this rule, but neither helps Montenegro. First, aliens who pleaded guilty to an aggravated felony before AEDPA’s enactment may apply for § 212(c) relief if they would have been eligible for that relief at the time of their pleas. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir.2000). But this exception does not apply to aliens like Montenegro who chose to go to trial; such aliens did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief. Lara-Ruiz, 241 F.3d at 945; Rankine v. Reno, 319 F.3d 93, 100-02 (2d Cir.2003) (collecting cases). Second, aliens who conceded deportability before AEDPA’s enactment, with the expectation that they could seek waivers under § 212(c), remain eligible to apply. La-Guerre v. Reno, 164 F.3d 1035, 1041 (7th Cir.1998). Montenegro’s removal proceedings, however, did not begin until after AEDPA was in effect and he contested his removability at those proceedings, so he does not fall within this exception either. Montenegro makes two other arguments attacking IIRIRA’s applicability to his situation. First, he asserts that the retroactive application of IIRIRA violates the ex post facto clause. But the ex post facto clause does not apply here because a removal proceeding is a civil action, and the ex post facto clause applies only to criminal laws. Flores-Leon v. INS, 272 F.3d 433, 440 (7th Cir.2001). Second, he says that the abolition of relief under § 212(c) denied him equal protection. But he does not develop this argument in any meaningful way, and we therefore do not address it. See United States v. Hem-mings, 258 F.3d 587, 593 n."
},
{
"docid": "3391514",
"title": "",
"text": "S.Ct. 2268, 150 L.Ed.2d 392 (2001), but denied the petition. Montenegro now appeals, and we affirm. Montenegro first argues that he is eligible for a discretionary withholding of deportation, even though he acknowledges that this waiver was abolished by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Anti-terrorism and Effective Death Penalty Act (AEDPA). See 8 U.S.C. § ,1229b(a)(3). Prior to the enactment of these laws, the Attorney General possessed the authority under § 212(c) of the Immigration and Nationality Act to grant discretionary waivers of deportation to aliens who met certain criteria. See Lara-Ruiz v. INS, 241 F.3d 934, 942 (7th Cir.2001). AEDPA placed new limits on this authority in 1996, and IIRIRA in 1997 repealed § 212(c) altogether, replacing it with a similar form of relief called “cancellation of removal.” See 8 U.S.C. § 1229b(a); Lara-Ruiz, 241 F.3d at 942. Unlike § 212(c), however, this new provision makes aliens convicted of an “aggravated felony” ineligible for relief. Lara-Ruiz, 241 F.3d at 942. Montenegro insists that AEDPA and IIRIRA should not apply to him because he committed what he concedes was an aggravated felony when relief was still available under § 212(c). We have held, however, that Congress intended to repeal § 212(c) as of April 1, 1997, and that relief under that section is not available to aliens whose removal proceedings were brought after that date. Lara-Ruiz, 241 F.3d at 943-44. There are two limited exceptions to this rule, but neither helps Montenegro. First, aliens who pleaded guilty to an aggravated felony before AEDPA’s enactment may apply for § 212(c) relief if they would have been eligible for that relief at the time of their pleas. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Jideonwo v. INS, 224 F.3d 692, 700 (7th Cir.2000). But this exception does not apply to aliens like Montenegro who chose to go to trial; such aliens did not abandon any rights or admit guilt in reliance on continued eligibility for § 212(c) relief. Lara-Ruiz, 241 F.3d at 945; Rankine v. Reno, 319 F.3d"
},
{
"docid": "3756037",
"title": "",
"text": "to determine its own jurisdiction”— that is, “a court of appeals has jurisdiction to determine (i) if the petitioner is an alien, (ii) if he is removable; and (iii) if he is removable because of a conviction for a qualifying crime.” She clarifies, however, that “[o]nce the Court has determined that a petitioner is an alien who has been ordered removed for a qualifying criminal conviction[,] it lacks jurisdiction to review any other challenge that the petitioner might raise to his removal proceedings.” The Attorney General’s position is similar to the position she took in Goncalves. There, she suggested that this court could review substantial constitutional claims and determine whether the alien had, in fact, been convicted of the type of crime that invokes the statutory bar to judicial review. See Goncalves, 144 F.3d at 118-19. Because we concluded that Congress had not repealed access to habeas relief under § 2241, we took no position on whether or to what extent the Constitution might require IIRIRA to preserve jurisdiction over some types of questions absent the ability to raise such questions in a habeas petition. See id. at 118 n. 8. We did observe, however, that “IIRIRA itself makes no provisions for ... review as to [criminal] aliens.” Id. at 119. Other courts are divided on whether and to what extent to read IIRIRA’s jurisdictional bar on judicial review as containing inherent exceptions for certain types of claims. Compare Liang v. INS, 206 F.3d 308, 322 (3d Cir.2000) (declining to find exceptions); with Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000) (concluding that § 242(a)(2)(C) permits review over only the narrow question of whether the alien is removable by reason of having been convicted of one of the enumerated offenses); and with Richardson v. Reno, 180 F.3d 1311, 1316 n. 5 (11th Cir.1999) (construing § 242(a)(2)(C) as allowing judicial review over not only the statutory predicates to removal, but also statutory interpretation and constitutional questions). We agree that § 242(a)(2)(C) would not preclude us from reviewing that provision’s applicability to Mahadeo — i.e., whether Mahadeo is an alien, removable,"
},
{
"docid": "22651897",
"title": "",
"text": "added)). Prior to AEDPA and IIRIRA, aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief. Because respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect. We find nothing in IIRIRA unmistakably indicating that Congress considered the question whether to apply its repeal of § 212(c) retroactively to such aliens. We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. The judgment is affirmed. It is so ordered. See Mahadeo v. Reno, 226 F. 3d 3 (CA1 2000); Liang v. INS, 206 F. 3d 308 (CA3 2000); Tasios v. Reno, 204 F. 3d 544 (CA4 2000); Flores-Mimmontes v. INS, 212 F. 3d 1133 (CA9 2000). But see Max-George v. Reno, 205 F. 3d 194 (CA5 2000); Morales-Ramirez v. Reno, 209 F. 3d 977 (CA7 2000); Richardson v. Reno, 180 F. 3d 1311 (CA11 1999). The INS was subsequently transferred to the Department of Justice. See Matter of L, 1 I. & N. Dec. 1, n. 1 (1940). As a result, the powers previously delegated to the Secretary of Labor were transferred to the Attorney General. See id., at 2. The exercise of discretion was deemed a mine pro tunc correction of the record of reentry. In approving of this construction, the Attorney General concluded that strictly limiting the seventh exception to exclusion proceedings would be “capricious and whimsical.” Id., at 5. See 8 U. S. C. § 1101(a)(43) (1994 ed. and Supp. V). While the term has always been defined expansively, it was broadened substantially by IIRIRA. For example, as amended by that statute, the term includes all convictions for theft or burglary for which a term of imprisonment of at least one year is imposed (as opposed to five years"
},
{
"docid": "3756029",
"title": "",
"text": "constitutional challenges to immigration decisions, see Mattis v. Reno, 212 F.3d 31, 35 n. 6 (1st Cir.2000); Wallace v. Reno, 194 F.3d 279, 285 (1st Cir.1999); Goncalves, 144 F.3d at 113. We hold today that IIRIRA’s permanent rules likewise do not divest the federal courts of their traditional jurisdiction to grant writs of habeas corpus pursuant to § 2241. I. A native of Trinidad and Tobago, Soon-dar Mahadeo immigrated to the United States with his family twenty-six years ago. In 1984, and again in 1991, Mahadeo was convicted of possession of marijuana with intent to distribute; each conviction constitutes an “aggravated felony” as defined by the INA. See INA § 101(a)(43)(B); 8 U.S.C. § 1101(a)(43)(B). On May 30, 1997, the INS commenced removal proceedings against Mahadeo. The immigration judge found him removable and ordered him deported. Mahadeo appealed to the Board of Immigration Appeals (“BIA”), arguing that he was entitled to apply for a discretionary waiver of the removal order pursuant to former INA § 212(c), as it stood before it was amended by AEDPA and repealed by IIRIRA. In particular, he argued that denying him access to former INA § 212(c) would violate the presumption against retroactivity in statutory interpretation because his convictions pre-dated the enactment of AEDPA and IIRIRA. In the alternative, Mahadeo asserted that retroactive application of IIRIRA’s repeal of § 212(c) relief would be unconstitutional. The BIA rejected Mahadeo’s arguments. Mahadeo then petitioned the district court for habeas corpus relief pursuant to 28 U.S.C. § 2241, contending that the BIA erred in concluding that it lacked the authority to consider his request for discretionary relief pursuant to former INA § 212(c). He reiterated both his constitutional arguments and his statutory interpretation challenge premised on the presumption against retroactivity. The district court did not address the merits of Mahadeo’s petition because it concluded that IIRIRA’s permanent rules revoked the subject matter jurisdiction of federal district courts to entertain § 2241 petitions brought by aliens seeking review of immigration proceedings. Mahadeo now appeals. II. Although the parties agree that IIRIRA’s permanent rules govern Mahadeo’s removal proceedings, we think"
},
{
"docid": "3756038",
"title": "",
"text": "the ability to raise such questions in a habeas petition. See id. at 118 n. 8. We did observe, however, that “IIRIRA itself makes no provisions for ... review as to [criminal] aliens.” Id. at 119. Other courts are divided on whether and to what extent to read IIRIRA’s jurisdictional bar on judicial review as containing inherent exceptions for certain types of claims. Compare Liang v. INS, 206 F.3d 308, 322 (3d Cir.2000) (declining to find exceptions); with Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000) (concluding that § 242(a)(2)(C) permits review over only the narrow question of whether the alien is removable by reason of having been convicted of one of the enumerated offenses); and with Richardson v. Reno, 180 F.3d 1311, 1316 n. 5 (11th Cir.1999) (construing § 242(a)(2)(C) as allowing judicial review over not only the statutory predicates to removal, but also statutory interpretation and constitutional questions). We agree that § 242(a)(2)(C) would not preclude us from reviewing that provision’s applicability to Mahadeo — i.e., whether Mahadeo is an alien, removable, and removable because of a conviction for a qualifying crime. See Fierro v. Reno, 217 F.3d 1, 3 (1st Cir.2000) (“This court’s authority to review removal orders based on an aliens’s commission of an aggravated felony has recently been restricted, 8 U.S.C. § 1252(a)(2)(C) ..., but this does not bar Fierro’s claim on review that he is a citizen rather than an alien .... ”); see also Maghsoudi v. INS, 181 F.3d 8, 13 (1st Cir.1999) (asserting jurisdiction to deter mine whether alien’s criminal convictions precluded review of his immigration proceedings under IIRIRA transition rule § 309(c)(4)(G)). The availability of review on these limited threshold issues is of little moment to Mahadeo, however, because the crux of his petition is a challenge to the BIA’s interpretation of IIRIRA as precluding discretionary relief, not a challenge to the applicability of § 242(a)(2)(C). We need not address many of the other issues that the parties attempt to raise because we conclude that habeas jurisdiction remains available to Mahadeo, in conformity with our preference stated in Gon-calves for"
},
{
"docid": "22651883",
"title": "",
"text": "for the consolidation of issues to be brought in petitions for “[jjudicial review,” which, as we note above, is a term historically dis tinct from habeas. See Mahadeo v. Reno, 226 F. 3d 3, 12 (CA1 2000); Flores-Miramontes v. INS, 212 F. 3d 1133, 1140 (CA9 2000). It follows that § 1252(b)(9) does not clearly apply to actions brought pursuant to the general habeas statute, and thus cannot repeal that statute either in part or in whole. If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS’ reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions. Cf. Felker, 518 U. S., at 660-661. Accordingly, we conclude that habeas jurisdiction under §2241 was not repealed by AEDPA and IIRIRA. Ill The absence of a clearly expressed statement of congressional intent also pervades our review of the merits of St. Cyr’s claim. Two important legal consequences ensued from respondent’s entry of a guilty plea in March 1996: (1) He became subject to deportation, and (2) he became eligible for a discretionary waiver of that deportation under the pre vailing interpretation of § 212(c). When IIRIRA went into effect in April 1997, the first consequence was unchanged except for the fact that the term “removal” was substituted for “deportation.” The issue that remains to be resolved is whether IIRIRA § 304(b) changed the second consequence by eliminating respondent’s eligibility for a waiver. The INS submits that the statute resolves the issue because it unambiguously communicates Congress’ intent to apply the provisions of IIRIRA’s Title III-A to all removals initiated after the effective date of the statute, and, in any event, its provisions only operate prospectively and not retrospectively. ,The Court of Appeals, relying primarily on the analysis in our opinion in Landgraf v. USI Film Products, 511 U."
},
{
"docid": "22651928",
"title": "",
"text": "who pleaded guilty or nolo contendere to crimes on the understanding that, in so doing, they would retain the ability to seek discretionary § 212(c) relief would retroactively unsettle their reliance on the state of the law at the time of their plea agreement. The recent Circuit authorities cited by the Court, which postdate IIRIRA, see Mahadeo v. Reno, 226 F. 3d 3, 12 (CA1 2000); and Flores-Miramontes v. INS, 212 F. 3d 1133, 1140 (CA9 2000)), cited ante, at 314, hardly demonstrate any historical usage upon which IIRIRA was based. Anyway, these cases rely for their analysis upon a third Court of Appeals decision — Sandoval v. Reno, 166 F. 3d 225, 235 (CA3 1999) — which simply relies on the passage from Heikkila under discussion. Justice O’Connor, dissenting. I join Parts I and III of Justice Scalia’s dissenting opinion in this case. I do not join Part II because I believe that, assuming, arguendo, that the Suspension Clause guarantees some minimum extent of habeas review, the right asserted by the alien in this case falls outside the scope of that review for the reasons explained by Justice Scalia in Part II-B of his dissenting opinion. The question whether the Suspension Clause assures habeas jurisdiction in this particular case properly is resolved on this ground alone, and there is no need to say more. Justice Scalia, with whom The Chief Justice and Justice Thomas join, and with whom Justice O’Connor joins as to Parts I and III, dissenting. The Court today finds ambiguity in the utterly clear language of a statute that forbids the district court (and all other courts) to entertain the claims of aliens such as respondent St. Cyr, who have been found deportable by reason of their criminal acts. It fabricates a superclear statement, “magic words” requirement for the congressional expression of such an intent, unjustified in law and unparalleled in any other area of our jurisprudence. And as the fruit of its labors, it brings forth a version of the statute that affords criminal aliens more opportunities for delay-inducing judicial review than are afforded to"
},
{
"docid": "21087581",
"title": "",
"text": "decision to file two habeas petitions rather than one. 95 F.3d 465, 468-69 (7th Cir.1996). However, in LaGuerre, we concluded that § 440(d) does apply retroactively to aliens convicted of crimes that were committed before AEDPA’s date of enactment. 164 F.3d at 1041. We based this conclusion on the rationale that “[i]t would border on the absurd to argue that these aliens might have decided not to commit drug crimes” had they known they would become ineligible to receive discretionary relief from deportation. Id. Therefore, we determined that removing eligibility for discretionary relief in this circumstance would not attach a new legal consequence to the decision to engage in past conduct. In this case, there is evidence that Jideonwo reached a plea agreement with the government at least in part relying on the availability of relief from deportation under § 212(c). The length of Jideonwo’s sentence — four years and eleven months— is virtually the longest sentence he could have received while retaining his eligibility for a discretionary waiver. In addition, this sentence is a considerable downward departure from the 'typical sentencing range for the crime to which Jideonwo pled guilty. Furthermore, there were lengthy negotiations between Jideonwo and the government and the IJ found that “the whole point of the plea negotiations in [Jideonwo’s] criminal case [was] that he got less than five years to avoid what would have been a statutory bar on 212(c) relief.” See Admin. Rec. (Matter of Jideonwo No. [ AXX XXX XXX ]) at 61. Jideonwo argues that since he relied on the availability of § 212(c) relief in making his decision to plead guilty, AEDPA’s § 440(d) should not be applied retroactively to him because it would alter the legal consequences of his plea. Three of our sister circuits agree with this position, see Mattis v. Reno, 212 F.3d 31, 38-40 (1st Cir.2000); Tasios v. Reno, 204 F.3d 544, 549 (4th Cir.2000); Magana-Pizano v. INS, 200 F.3d 603, 613 (9th Cir.1999), and we now consider its merits. A guilty plea involves the waiver of several substantial constitutional rights. See Boykin v. Alabama, 395"
}
]
|
99516 | 41 F.R.D. 188, 190-91 (1966). But this rule assumes, of course, that the testimony was not attended by procedural irregularities of constitutional proportion, for if the admission or other inculpatory statement was given at a “critical stage” without the presence of counsel, the statement is not admissible. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). As indicated above, we do not decide whether the grand jury proceeding was a “critical stage.” Whether the presence and assistance of counsel was required, and whether other procedural guarantees applied are questions that may be raised by appellants in defense to any criminal prosecutions that may follow. See Mattox v. Carson, 424 F.2d 202 (5 Cir., March 25, 1970). In REDACTED the federal courts were. asked to intervene in a state prosecution which had already been instituted. The petitioners sought to prevent the admission at trial of the fruit of an allegedly unlawful search. Although in the present case only two of appellants have been indicted, what Mr. Justice Frankfurter said in Stefanelli is applicable generally to the situation before us: The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law | [
{
"docid": "22786147",
"title": "",
"text": "review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent, irreparable injury which is clear and imminent; ....” Id., at 163. No such irreparable injury, clear and imminent, is threatened here. At worst, the evidence sought to be suppressed- may provide the basis for conviction of the petitioners in the New Jersey courts. Such a conviction, we have held, would not deprive them of due process of law. Wolf v. Colorado, supra. If these considerations limit federal courts in restraining State prosecutions merely threatened, how much more cogent are they to prevent federal interference with prb ceedings once begun. If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must'it be to intervene piecemeal to try collateral issues. The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective pros ecution of local crime in local courts. To suggest these difficulties is"
}
]
| [
{
"docid": "5866224",
"title": "",
"text": "the State of New York, as reaffirmed by its Court of Appeals subsequent to Ben-anti, is that wiretap evidence even though illegally obtained is admissible in a state criminal trial. People v. Variano, 5 N.Y.2d 391, 185 N.Y.S.2d 1, 157 N.E. 2d 857. Cases dealing with the admissibility in state criminal prosecutions of evidence obtained by unlawful search and seizure arising under the Fourth and Fourteenth Amendments to the Constitution furnish a parallel here. Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, held that the admission of such evidence in a prosecution in a state court for a state crime was not forbidden and the court refused to reverse a state court conviction because such evidence had been received. In Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 120, 96 L.Ed. 138, the petitioner appealed from a denial by the federal district court of an injunction against the use in pending state criminal proceedings of the fruits of an unlawful search and seizure by the New Jersey State Police. It was held that the federal courts should refuse to intervene in state criminal proceedings to suppress the use of evidence even when secured by unlawful search and seizure. As Mr. Justice Frankfurter, writing for the court said : “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every .State criminal prosecution to insupportable disruption. Every question of procedural due process of law—with its far-flung and undefined range—would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court to, determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court—all would provide ready opportunities,"
},
{
"docid": "14155745",
"title": "",
"text": "Stefanelli v. Minard, supra. There the Court held that a federal court should refuse to intervene in a state criminal proceeding to enjoin the use of evidence claimed to have been secured by an unlawful search and seizure contrary to the Fourth Amendment. The plaintiff’s claim in Stefanelli was closely analogous to that made here — that since under Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, admission in a state court of evidence obtained by an unlawful search and seizure would not be ground for reversal of the conviction, a federal court should enjoin the introduction of such evidence. Mr. Justice Frankfurter’s statement of the reasons for refusing injunctive relief in Stefanelli are equally applicable here: “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range— would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities, which conscientious counsel might be found to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.” (Footnotes omitted) 342 U.S. at pages 123-124, 72 S.Ct. at page 121. It is urged that Stefanelli differs from the cases before us in that there the violation of federal law was the unlawful search itself, which had already taken place at the time of the suit for injunctive relief and which the federal court could therefore"
},
{
"docid": "21898072",
"title": "",
"text": "now universally conceded that a witness may be impeached in any subsequent trial * * * by self-contradictory testimony given by him before tthe grand jury * * * • [and] the admissions of a party * * * are admissible against him although he does not take the stand at the trial.” 8 Wigmore, Evidence § 2363. See Meshbesher, Right to Counsel Before Grand Jury, 41 F.R.D. 188, 190-91 (1966). But this rule assumes, of course, that the testimony was not attended by procedural irregularities of constitutional proportion, for if the admission or other inculpatory statement was given at a “critical stage” without the presence of counsel, the statement is not admissible. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). As indicated above, we do not decide whether the grand jury proceeding was a “critical stage.” Whether the presence and assistance of counsel was required, and whether other procedural guarantees applied are questions that may be raised by appellants in defense to any criminal prosecutions that may follow. See Mattox v. Carson, 424 F.2d 202 (5 Cir., March 25, 1970). In Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the federal courts were. asked to intervene in a state prosecution which had already been instituted. The petitioners sought to prevent the admission at trial of the fruit of an allegedly unlawful search. Although in the present case only two of appellants have been indicted, what Mr. Justice Frankfurter said in Stefanelli is applicable generally to the situation before us: The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range— would invite a flanking movement against the system of State courts by resort to the federal forum. * * We have no cause to believe that the"
},
{
"docid": "12695488",
"title": "",
"text": "U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the plaintiff Stefanelli had been indicted by the State of New Jersey for bookmaking. He sued in the federal court under the Civil Rights Act (R.S. Section 1979, 8 U.S.C. Section 43) seeking an injunction against the use in the then pending state proceeding of bookmaking materials claimed to have been seized in a search of his home by ' police officers without legal authority. The district court refused to grant an injunction and dismissed the complaint. This action was affirmed in the Court of Appeals (Stefanelli v. Malanga, 184 F.2d 575, 3rd Cir. 1950). The Supreme Court also approved this disposition and Mr. Justice Frankfurter, in the course of his majority opinion, took occasion to say (at page 123 of 342 U.S., at page 121 of 72 S.Ct.): “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law— with its far-flung and undefined range —would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — ■ all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution. “Mr. Justice Holmes dealt with this problem in a situation especially appealing: ‘The relation of the United States and the Courts of the United States to the States and the Courts of the States is a very delicate matter that has occupied the thoughts of"
},
{
"docid": "12695489",
"title": "",
"text": "intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law— with its far-flung and undefined range —would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — ■ all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution. “Mr. Justice Holmes dealt with this problem in a situation especially appealing: ‘The relation of the United States and the Courts of the United States to the States and the Courts of the States is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years and can not be disposed of by a summary statement that justice requires me to cut red tape and to in tervene.’ Memorandum of Mr. Justice Holmes in 5 The Sacco-Vanzetti Case, Transcript of the Record (Henry Holt & Co., 1929) 5516. A proper respect for those relations requires that the judgment below be affirmed.” Later in the case of Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390 (1963), the plaintiff brought action in a federal district court for an injunction against a state officer to prevent him from testifying in a state criminal proceeding to incriminating statements which the state officer had heard the plaintiff make while being illegally detained and questioned by federal officers. Mr. Justice Harlan, speaking for the Supreme Court, relied on Mr. Justice Frankfurter’s opinion in Stefanelli in affirming the denial of the injunction and observed: (at page 400 of 371 U.S., at page 390 of 83 S.Ct.): “The withholding of injunctive relief against this state official does not"
},
{
"docid": "8453915",
"title": "",
"text": "get a lawyer. Artman replied by stating that an attorney would be appointed for him “if he did not have one of his own at the time that he would be indicted.” At this conversation no incriminatory statements were made by petitioner. The following morning petitioner was taken to the Municipal Court and executed the waiver of his preliminary hearing. It is well settled that an accused may waive a preliminary hearing as it is procedural and not jurisdictional. Moreover, Virginia has held that an objection to a procedural defect such as stated above must be made timely. Sny der v. Commonwealth, 202 Va. 1009, 121 S.E.2d 452. Assuming, without deciding, that petitioner actually requested the assistance of counsel at the preliminary hearing, we do not think that it necessarily follows that counsel must be then appointed. The latest and most authoritative voice on this subject comes from the Supreme Court of the United States in Pointer v. State of Texas, 85 S.Ct. 1065, decided April 5, 1965. It is there said: “In this Court we do not find it necessary to decide one aspect of the question petitioner raises, that is, whether failure to appoint counsel to represent him at the preliminary hearing unconstitutionally denied him the assistance of counsel within the meaning of Gideon v. Wainwright, supra [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799]. In making that argument petitioner relies mainly on White v. [State of] Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193], in which this Court reversed a conviction based in part upon evidence that the defendant had pleaded guilty to the crime at a preliminary hearing where he was without counsel. Since the preliminary hearing there, as in Hamilton v. [State of] Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114], was one in which pleas to the charge could be made, we held in White as in Hamilton that a preliminary proceeding of that nature was so critical a stage in the prosecution that a defendant at that point was entitled to counsel. But the State informs us that"
},
{
"docid": "5866225",
"title": "",
"text": "Jersey State Police. It was held that the federal courts should refuse to intervene in state criminal proceedings to suppress the use of evidence even when secured by unlawful search and seizure. As Mr. Justice Frankfurter, writing for the court said : “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every .State criminal prosecution to insupportable disruption. Every question of procedural due process of law—with its far-flung and undefined range—would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court to, determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court—all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.” The same considerations which impelled the court in Stefanelli to refuse to exercise its equitable powers to interfere in a state criminal proceeding also apply in the case at bar. There is nothing here which removes this case from the orbit of Stefanelli. It is true that the testimony of state officers and agents as to actual telephone conversations which had been intercepted would in itself constitute divulgence in criminal violation of the express prohibitions of § 60S. But even if it were established that such divulgence will occur (and it has not been affirmatively shown that it will) this would not justify a departure from the principles of Stefanelli. Schwartz v. State of Texas, supra, made it plain that § 605 does not operate to exclude such evidence in state court proceedings even though “the introduction of the intercepted communications would itself be a violation"
},
{
"docid": "21898073",
"title": "",
"text": "Mattox v. Carson, 424 F.2d 202 (5 Cir., March 25, 1970). In Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the federal courts were. asked to intervene in a state prosecution which had already been instituted. The petitioners sought to prevent the admission at trial of the fruit of an allegedly unlawful search. Although in the present case only two of appellants have been indicted, what Mr. Justice Frankfurter said in Stefanelli is applicable generally to the situation before us: The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range— would invite a flanking movement against the system of State courts by resort to the federal forum. * * We have no cause to believe that the state courts of Pennsylvania will refuse to accord appellants the full complement of constitutional rights if and when the alleged deprivations at the grand jury proceedings become the bases for criminal prosecutions. Far from being “irreparable”, the injuries complained of can be cured at that time. Appellants have pressed yet a third ground for the issuance of a preliminary injunction. They urge that the investigation is depriving them of property without due process of law since it “has resulted in the refusal by [the] lenders to proceed with their financing commitments, thus delaying and in all probability destroying the Project.” Considerable attention has been devoted by appellants’ Brief to disputing the disputing the district court’s finding that the Civil Rights Act “was not intended as a basis for redress of property or monetary rights.” We confess a strong reluctance to rule on this issue, for we think the district court was correct in deciding that appellants have not satisfied their burden of establishing “the probability of substantially] direct, immediate, and irreparable harm to their project.”"
},
{
"docid": "14155744",
"title": "",
"text": "of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; Id., 270 U.S. 36, 46 S.Ct. 192, 70 L.Ed. 459, and 1926, 270 U.S. 44, 46 S. Ct. 194, 70 L.Ed. 462. Moreover, Congress, in § 501 of the Communications Act, 47 U.S.C.A. § 501, has provided that violation of § 605 shall be a misdemean- or, and we have held that § 605 creates a civil action for damages in favor of one whose line is tapped. Reitmeister v. Reitmeister, 2 Cir., 1947, 162 F.2d 691. Finally, we cannot overlook the long recognized principle of equity, based upon the policy of preserving the right to jury trial, that a court should not enjoin the commission of a crime. With these factors in mind, we do not think that a federal court should interfere with the prosecution of a state criminal proceeding in order to provide an additional means of vindicating any private rights created by § 605. We are guided in our determination by the decision of the Supreme Court in Stefanelli v. Minard, supra. There the Court held that a federal court should refuse to intervene in a state criminal proceeding to enjoin the use of evidence claimed to have been secured by an unlawful search and seizure contrary to the Fourth Amendment. The plaintiff’s claim in Stefanelli was closely analogous to that made here — that since under Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, admission in a state court of evidence obtained by an unlawful search and seizure would not be ground for reversal of the conviction, a federal court should enjoin the introduction of such evidence. Mr. Justice Frankfurter’s statement of the reasons for refusing injunctive relief in Stefanelli are equally applicable here: “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every"
},
{
"docid": "21898071",
"title": "",
"text": "did not perform in the traditional manner, whereby “the identity of the offender, and the precise nature of the offense, if there be one, .normally are developed at the conclusion of the grand jury’s labors, not at the beginning.” Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). By expressing these concerns, however, we do not mean to equate this investigating grand jury with the executive investigating commission in Jenkins v. McKeithen. There are differences between the two bodies both in their composition and functions. But even assuming that during the proceedings entitlement to certain procedural safeguards was indicated, we must decline appellants’ invitation to enjoin any future grand jury proceedings and to declare unlawful and preliminarily enjoin the prosecution of the indictments which have already been returned. Again we emphasize the elementary principle that a preliminary injunction shall not issue except upon a showing of irreparable injury. And again we find that appellants have failed to establish the existence of such harm. We recognize that “it is now universally conceded that a witness may be impeached in any subsequent trial * * * by self-contradictory testimony given by him before tthe grand jury * * * • [and] the admissions of a party * * * are admissible against him although he does not take the stand at the trial.” 8 Wigmore, Evidence § 2363. See Meshbesher, Right to Counsel Before Grand Jury, 41 F.R.D. 188, 190-91 (1966). But this rule assumes, of course, that the testimony was not attended by procedural irregularities of constitutional proportion, for if the admission or other inculpatory statement was given at a “critical stage” without the presence of counsel, the statement is not admissible. White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). As indicated above, we do not decide whether the grand jury proceeding was a “critical stage.” Whether the presence and assistance of counsel was required, and whether other procedural guarantees applied are questions that may be raised by appellants in defense to any criminal prosecutions that may follow. See"
},
{
"docid": "12695487",
"title": "",
"text": "and perhaps seriously delay the state prosecution, whatever the outcome of the hearing. A collateral inquiry of this nature by a federal court might well result in what Justice Black of the Supreme Court had in mind when he stated in Cameron v. Johnson, 381 U.S. 741 at 743 (Footnote 2) 85 S.Ct. 1751 at 1753, 14 L.Ed. 2d 715: “Today’s decision appears to add more devices to the collection of delaying tactics by which state criminal defendants may use collateral litigation in the federal courts to prevent their prosecutions in state courts from coming to trial for many years, if ever.” Further, this Court is fully satisfied that under general principles of comity and in view of the express statutory prohibition in 28 U.S.C.A. Section 2283 against federal courts enjoining state proceedings, it should not assert its equity jurisdiction to interfere in any way in the pending state court criminal prosecution of Plaintiff Turco. There is ample authority supporting the policy of abstention from interference in state criminal proceedings. In Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951), the plaintiff Stefanelli had been indicted by the State of New Jersey for bookmaking. He sued in the federal court under the Civil Rights Act (R.S. Section 1979, 8 U.S.C. Section 43) seeking an injunction against the use in the then pending state proceeding of bookmaking materials claimed to have been seized in a search of his home by ' police officers without legal authority. The district court refused to grant an injunction and dismissed the complaint. This action was affirmed in the Court of Appeals (Stefanelli v. Malanga, 184 F.2d 575, 3rd Cir. 1950). The Supreme Court also approved this disposition and Mr. Justice Frankfurter, in the course of his majority opinion, took occasion to say (at page 123 of 342 U.S., at page 121 of 72 S.Ct.): “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this"
},
{
"docid": "1986664",
"title": "",
"text": "138 (1951); Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964); Goss v. State of Illinois, 312 F.2d 257 (7th Cir. 1963); Smith v. Village of Lansing, 241 F.2d 856 (7th Cir. 1957); Sexton v. Barry, 233 F.2d 220 (6th Cir. 1956); Thomas v. District Court of Thirteenth Judicial Dist., 270 F.Supp. 487 (D.Mont.1967); Brock v. Schiro, 264 F.Supp. 330 (E.D.La.1967); Chaffee v. Johnson, 229 F.Supp. 445 (S.D.Miss. 1964). Thomas v. District Court of Thirteenth Judicial Dist., supra, involved proceedings to enjoin the state from the use of a statement in a prosecution for murder. Plaintiff alleged that she had been denied the benefits of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and urged the court to issue injunctive relief under the provisions of Section 2283 of Title 28, U.S.C.A. for claimed violations of her civil rights. The court held that the Civil Rights Act did not create an exception to Section 2283 of Title 28, U.S.C.A. and stated in part: “The leading case holding that intervention is improper is Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S.Ct. 118, 90 [96] L.Ed. 138. This was a civil proceeding, brought under the Civil Rights Act, in which petitioner sought an injunction against the use of evidence alleged to have been obtained by an unlawful search by the police. In holding that the district court properly dismissed the complaints, the Court said in part: ‘The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to"
},
{
"docid": "104644",
"title": "",
"text": "right for strategic purposes.” Id. at 53, 82 S.Ct. 157 (citations omitted). The possibility that something might have been “irretrievably lost” in this way sufficed to warrant reversal: “[w]hen one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” Id. at 55, 82 S.Ct. 157 (citations omitted). ' In such a case, the Court concluded, “the degree of prejudice can never be known. Only the presence of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently.” Ibid. In White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), another capital case, the Supreme Court, per curiam, applied its Hamilton ruling to a Maryland pretrial procedure that had functioned similarly to an arraignment: the defendant, unrepresented by counsel, pleaded guilty even though he was not obligated to enter any plea at the hearing, and the prosecution later used evidence of that plea against him in a trial that followed a subsequent not-guilty plea. Although the Supreme Court did not offer an explicit definition of a “critical stage,” it declined to follow the Maryland appellate court’s reasoning that Hamilton had functionally defined a “critical stage” as one “where rights are preserved or lost.” Id. at 60, 83 S.Ct. 1050. The next year, the Supreme Court, citing both Hamilton and White, extended critical stage status to a moment that might not immediately strike either a learned or lay observer as a traditional part of a defendant’s criminal proceeding. In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), a federal prisoner’s narcotics conviction was based in part on incriminating remarks he made, following indictment and while out on bail, to his erstwhile co-defendant who had secretly turned state’s evidence by the time of their conversation. Law enforcement agents heard the defendant’s comments via a radio transmitter that the co-defendant, cooperating with agents, had installed, in his car. Because the defendant already had been indicted for a crime for which the incriminating statements later served as evidence, the"
},
{
"docid": "104643",
"title": "",
"text": "views “critical stages” of a defendant’s pretrial and trial differently from other parts. The Supreme Court began developing a nationwide critical stage doctrine in earnest in Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), in which the Court unanimously reversed the Alabama Supreme Court’s denial of a criminal defendant’s writ of error coram nobis in a capital case where the defendant’s counsel had been absent at his arraignment. The Court wrote that “[wjhatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding.” Id. at 54, 82 S.Ct. 157 (footnote omitted). It was unnecessary to make a showing that the defendant suffered a disadvantage through absence of counsel. Id. at 53, 82 S.Ct. 157. Under Alabama law, “[w]hat happens [at an arraignment] may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.” Id. at 53, 82 S.Ct. 157 (citations omitted). The possibility that something might have been “irretrievably lost” in this way sufficed to warrant reversal: “[w]hen one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted.” Id. at 55, 82 S.Ct. 157 (citations omitted). ' In such a case, the Court concluded, “the degree of prejudice can never be known. Only the presence of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently.” Ibid. In White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), another capital case, the Supreme Court, per curiam, applied its Hamilton ruling to a Maryland pretrial procedure that had functioned similarly to an arraignment: the defendant, unrepresented by counsel, pleaded guilty even though he was not obligated to enter any plea at the hearing, and the prosecution later used evidence of that plea against him in a trial that followed a subsequent not-guilty plea. Although the"
},
{
"docid": "17127010",
"title": "",
"text": "grand jury was otherwise improperly drawn * * *, must be made. “Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.” [Footnote omitted.] In White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), the accused was without counsel at the preliminary hearing. At such hearing he pleaded guilty and subsequently withdrew the same. During his trial the plea of guilty entered at the preliminary hearing was introduced into evidence against him. His conviction was reversed, the Court stating at page 60, 83 S.Ct. at page 1051: “Whatever may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this case as ‘critical’ a stage as arraignment under Alabama law. For petitioner entered a plea before the magistrate and that plea was taken at a time when he had no counsel.” In neither of these cases did the Supreme Court of the United States consider whether there was actual prejudice because it determined that the lack of counsel at a crtical stage of criminal proceedings was per se a violation of the constitutional guarantee of the Sixth Amendment. Our task is to determine, if we can from the record before us, whether the preliminary examination afforded to appellant without the aid of counsel was a “critical stage” in the criminal proceedings against him. In State of Arizona v. Moses, 101 Ariz. 426, 420 P.2d 560, filed November 30, 1966, the Supreme Court of Arizona held that Moses’ preliminary examination was not a critical stage in the criminal proceedings against him. In that case Moses was informed of his right to the aid of counsel at his preliminary examination. Since the record before the court was silent as to any request by Moses at his"
},
{
"docid": "1986665",
"title": "",
"text": "is improper is Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S.Ct. 118, 90 [96] L.Ed. 138. This was a civil proceeding, brought under the Civil Rights Act, in which petitioner sought an injunction against the use of evidence alleged to have been obtained by an unlawful search by the police. In holding that the district court properly dismissed the complaints, the Court said in part: ‘The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.’ ” Yates v. Hodges, 269 F.Supp. 519 (N.D.Miss.1967), was an action commenced to void a final judgment of the Mississippi Supreme Court or to enjoin execution or enforcement thereof on the ground that the actions of the Court had denied plaintiff’s due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States. In holding that it did not have jurisdiction, the United States District Court relied on Section 2283 of Title 28, U.S.C.A. and stated that it was beyond doubt that plaintiffs were seeking to enjoin “proceedings” within the meaning of that statute. The court in its opinion referred to Levine v. Lacy, 344 F.2d 695 (4th Cir. 1965) and Warriner"
},
{
"docid": "3808559",
"title": "",
"text": "from known perjurers and narcotic addicts as a basis for the license revocation proceedings which have been instituted. Assuming arguendo that the evidence obtained by searching his office was illegally obtained, as plaintiff contends, this is neither the time nor the place to raise such an issue. Any doubt on that score was laid to rest long ago. See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969). In Stefanelli, the Supreme Court refused to interfere with the use of evidence which had been unlawfully obtained, and held that “the federal courts should refuse to intervene in State Criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure.” The Court went on to explain that more was involved than mere doctrinaire alertness to protect the proper sphere of the states in enforcing their criminal laws: “If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impannelling and selecting of the grand and petit juries, in the failure to appoint counsel, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.” Id. 342 U.S. at 123-124, 72 S.Ct. at 121-122. Equally without merit are plaintiff’s claims that he has been denied due process and equal protection of the laws because charges which might well result in the loss of his license to practice medicine have been placed against him and because affidavits by “known perjurers and narcotic addicts” formed the basis for"
},
{
"docid": "874940",
"title": "",
"text": "laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . § 2283 is the successor to § 5 of the Act of March 2, 1793, 1 Stat. at L. 335, Chap. 22, which provided that no writ of injunction might be granted on the part of Federal courts to stay proceedings in any state court. This section was later amended to make an exception for proceedings in bankruptcy. 36 Stat. at L. 1162, Chap. 231. The' provision, as amended, was carried forward as §, 720 of the Revised Statutes (1874), § 265 of the Judicial Code (1911), and as 28 U.S.C.A. §, 379 (1940). Section 2283 resulted from the revision of the Judicial Code in 1948. 62 Stat. 968. As to the effect of the 1948 revision, see Wright, Federal Courts, & 154 quoting Reviser’s Note to § 2283: “* * * the revised section restores the basic law as generally understood and interpreted prior to the Toucey decision.” [Toucey v. New York Life Ins. Co., 1941, 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100] . There the private right was an effort to prevent a state court from using the fruit of an unlawful search, and the court said: “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State Criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would"
},
{
"docid": "874941",
"title": "",
"text": "York Life Ins. Co., 1941, 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100] . There the private right was an effort to prevent a state court from using the fruit of an unlawful search, and the court said: “The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State Criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range — would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.” 342 U.S. at 123, 72 S.Ct. at 121. . 28 U.S.C.A. § 1343: “The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: * * * * * “(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States;” ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC PER CURIAM: The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure;"
},
{
"docid": "3808558",
"title": "",
"text": "L.Ed. 1086 (1935). If, as plaintiff in the instant ease apparently contends, the Georgia legislature has delegated to the Medical Board legislative powers which are nondelegable under the Georgia Constitution it will not be necessary to reach the federal question of whether the statute is unconstitutionally vague and overbroad, and the federal court therefore should avoid needless friction between federal pronouncements and state policies by requiring the parties to repair to the state courts for a resolution of their state constitutional questions. Apart from the statute, plaintiff’s civil rights complaint consists primarily of allegations (1) that the defendants conspired to deprive him of due process and equal protection of the laws by charging him with conduct which if true would subject him to loss of his license to practice medicine, (2) that defendants deprived him of due process and equal protection by participating in an unlawful search of his office and seizure of evidence to be used against him, and (3) that the Board deprived him of due process and equal protection by using affidavits from known perjurers and narcotic addicts as a basis for the license revocation proceedings which have been instituted. Assuming arguendo that the evidence obtained by searching his office was illegally obtained, as plaintiff contends, this is neither the time nor the place to raise such an issue. Any doubt on that score was laid to rest long ago. See Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969). In Stefanelli, the Supreme Court refused to interfere with the use of evidence which had been unlawfully obtained, and held that “the federal courts should refuse to intervene in State Criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure.” The Court went on to explain that more was involved than mere doctrinaire alertness to protect the proper sphere of the states in enforcing their criminal laws: “If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption."
}
]
|
822275 | no factors that the Special Administrator should consider in deciding whether to sanction an employer who was found to have acted in violation of the terms of its temporary labor certification. As such, the decision to sanction an employer is purely discretionary. Before the Court can even evaluate plaintiffs’ contention that the Special Administrator’s decision not to impose sanctions against the growers was arbitrary and capricious and an abuse of discretion, the Court must first be convinced that this decision is susceptible of judicial review. Under the Administrative Procedure Act, judicial review of agency decisions is improper when Congress has “affirmatively precluded judicial review” or when there is no “meaningful” legal standard against which a court can evaluate the decision’s validity. REDACTED The first exception to judicial review under the APA, affirmative preclusion by Congress, expressly comes from 5 U.S. C. § 701(a)(1); the second, lack of judicially manageable standards, originates out of § 701(a)(2). Id. at 828, 105 S.Ct. at 1654. Congress has not affirmatively precluded the Court from evaluating whether DOL Special Administrators have properly declined to impose sanctions; as such, the only barrier to judicial review of the Special Administrator’s decision is the absence of judicially manageable standards to conduct such a review. In Heckler v. Chaney, supra, the Supreme Court held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2).” 470 U.S. | [
{
"docid": "22674338",
"title": "",
"text": "to agency discretion.’ This is a very narrow exception. . . . The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945).” Overton Park, supra, at 410 (footnote omitted). The above quote answers several of the questions raised by the language of § 701(a), although it raises others. First, it clearly separates the exception provided by § (a)(1) from the § (a)(2) exception. The former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.” In addition, this construction satisfies the principle of statutory construction mentioned earlier, by identifying a separate class of cases to which § 701(a)(2) applies. To this point our analysis does not differ significantly from that of the Court of Appeals. That court purported to apply the “no law to apply” standard of Overton Park. We disagree, however, with that court’s insistence that the “narrow construction” of § (a)(2) required application of a presumption of reviewability even to an agency’s decision not to undertake certain enforcement actions. Here we think the Court of Appeals broke with tradition, case law, and sound reasoning. Overton Park did not involve an agency’s refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for"
}
]
| [
{
"docid": "21559012",
"title": "",
"text": "that states only use drugs that are “safe and effective” for human execution. The FDA had approved the challenged drugs for certain uses, but not for executions. The inmates were concerned that the drugs might cause “torturous pain,” rather than “produc[ing] death quickly and without pain.” Chaney v. Heckler, 718 F.2d 1174, 1177 (D.C.Cir.1983), rev’d, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). In refusing to investigate the petition, the FDA asserted that (1) it did not have jurisdiction to regulate state-sanctioned executions involving lethal injections, and (2) it had inherent agency discretion to refrain from undertaking such an activity. The Supreme Court held that the court of appeals did not have jurisdiction. Although it noted that the APA provides a presumption of reviewability of agency actions, the Court reasoned that, “before any review at all may be had, a party must clear the hurdle of § 701(a). That section provides that the chapter on judicial review ‘applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.’ ” Chaney, 470 U.S. at 828, 105 S.Ct. at 1654. In interpreting section 701(a)(2), the Court reasoned: [R]eview is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (‘law’), can be taken to have ‘committed’ the decision-making to the agency’s judgment absolutely. This construction avoids conflict with the ‘abuse of discretion’ standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’ Id. at 830, 105 S.Ct. at 1655. Consequently, the Court held that a refusal to take enforcement action by an administrative agency is presumptively un-reviewable by the courts. Id. at 831, 105 S.Ct. at 1655. The Supreme Court gave several reasons in support of its interpretation of section 701(a)(2): (1) an"
},
{
"docid": "157217",
"title": "",
"text": "dismissal of plaintiffs’ breach of contract claim in count IV of the complaint. E. Plaintiffs’ final contention is that defendant federal and state housing officials have failed to enforce the obligations of the private owners fairly and rationally to administer the Section 8 program in accordance with federal statutory and constitutional standards. This failure, plaintiffs contend, was arbitrary, capricious, and an abuse of discretion and has resulted in plaintiffs’ federal statutory and constitutional rights being violated, thus entitling plaintiffs to relief under the federal Administrative Procedure Act (APA), 5 U.S.C. §§ 702 & 706. The APA’s comprehensive provisions for judicial review of “agency actions” are contained in 5 U.S.C. §§ 701-706. Any person “adversely affected or aggrieved” by final agency action, including a failure to act, is entitled to judicial review thereof. 5 U.S.C. § 702. Defendants, however, maintain that, even assuming there has been a violation of plaintiffs’ rights, which they deny, HUD’s decision not to take enforcement action in this case against the private owners is a decision committed to the agency’s absolute discretion, and thus is not subject to judicial review under the APA. See 5 U.S.C. § 701(a)(2). Section 701(a)(2) of the APA precludes judicial review of any action or decision by an administrative agency to the extent that “agency action is committed to agency discretion by law.” The Supreme Court has stated, however, that § 701(a)(2) “is a very narrow exception” that only applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). In other words, judicial review is precluded only when “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). However, in cases involving an agency’s decision not to take enforcement action, the"
},
{
"docid": "1709070",
"title": "",
"text": "of a defect, when NHTSA and Ford entered a settlement agreement that required Ford to notify owners about the possibility of a defect. Under the settlement agreement, however, NHTSA explicitly reserved ■ the right to commence a new proceeding on the alleged defect if additional facts warranted such action. See Center for Auto Safety v. Lewis, 685 F.2d 656, 661 n. 5 (D.C.Cir.1982). In their March 1985 petition, appellants claimed to have such additional evidence as to warrant the opening of a new investigation on the matter. On July 12, 1985, the NHTSA Administrator denied appellants’ petition, stating that her review of the evidence in the administrative record, including appellant’s petition, new information received from Ford and other car manufacturers, and internal NHTSA accident reports, had failed to “convinced” her “that a final defect determination is now warranted or even likely if further investigation were undertaken.” Appellee’s Appendix at 35. It is that determination which CAS unsuccessfully sought to have reviewed in the District Court. II. Availability of Judicial Review Under the Administrative Procedure Act, NHTSA’s denial of appellant’s petition is subject to judicial review unless Congress has “affirmatively precluded review” in the Motor Safety Act or unless NHTSA’s decision is not governed by a “meaningful” legal standard against which a court can measure its validity. Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). The first exception to APA review, affirmative preclusion by Congress, derives from 5 U.S.C. § 701(a)(1); the second, lack of judicially manageable standards, derives from § 701(a)(2). In Chaney, the Supreme Court observed that “an agency decision not to enforce” usually is not governed by “judicially manageable standards” and “often involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise”; therefore it “should be presumed immune from review under § 701(a)(2).” Id. at 830-32, 105 S.Ct. at 1655-56. The Chaney Court, however, also “emphasize[d] that the [nonenforcement] decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement"
},
{
"docid": "6527217",
"title": "",
"text": "at 410-13, 91 S.Ct. at 820-22. Section 706(2)(A) of the Administrative Procedures Act provides: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 706(2)(A). The United States Supreme Court, in Heckler v. Chaney, 470 U.S. 821, 828-35, 105 S.Ct. 1649, 1654-57, 84 L.Ed.2d 714 (1985), reconciled the language of section 701(a)(2) that makes action committed to agency discretion unreviewable with the abuse of discretion standard of section 706(2)(A). The Court stated that “review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Id. at 830, 105 S.Ct. at 1655. The Court continued, “if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for ‘abuse of discretion.’ ” Id. The Court of Appeals for the Third Circuit set forth the analytical framework for this court to follow in determining whether an agency decision is unreviewable under section 701(a)(2). Notably, “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the court restrict access to judicial review.” Local 2855, AFGE (AFL-CIO) v. United States, 602 F.2d 574, 578 (3d Cir.1979) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). This court must consider whether (1) the action involves broad discretion, not just the limited discretion inherent in every agency action; (2) the action is the product of political, military, economic, or managerial choices that are not readily subject to judicial review; and (3) the action does not involve charges that the agency lacked jurisdiction, that the decision was motivated by impermissible influences such"
},
{
"docid": "22283207",
"title": "",
"text": "in category seven. We overrule our previous decisions only to the extent that we have held that Commission decisions granting or denying parole are subject to judicial review for an abuse of discretion. AFFIRMED. . Section 4203(b) provides, in part: (b) The Commission, by majority vote, and pursuant to the procedures set out in this chapter, shall have the power to— (1) grant or deny an application or recommendation to parole any eligible prisoner; (2) impose reasonable conditions on an order granting parole; (3) modify or revoke an order paroling any eligible prisoner____ . Section 701(a) of the Administrative Procedure Act (\"APA”) provides: Application; definitions (a) This chapter applies, according to the provisions thereof, except to the extent that— (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law. In Heckler v. Chaney, the Court explained the relationship between subsections (a)(1) and (a)(2) of section 701 of the APA: The former applies when Congress has expressed an intent to preclude judicial review. The latter applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (‘law’) can be taken to have ‘committed’ the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the ‘abuse of discretion’ standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for ‘abuse of discretion.’ In addition, this construction satisfies the principle of statutory construction mentioned earlier, by identifying a separate class of cases to which § 701(a)(2) applies. Id., 105 S.Ct. at 1655. The Court discussed subsections (a)(1) and (a)(2) of section 701 in Citizens to Preserve Overton Park, 401 U.S. at 410, 91 S.Ct. at 820. By clarifying and reaffirming Overton Park, the Court in Chaney resolved the long-standing uncertainty and dispute over the proper interpretation"
},
{
"docid": "16792804",
"title": "",
"text": "Id. at 832-33, 105 S.Ct. at 1656 (footnote omitted). The Chaney holding derives from an ongoing effort to reconcile the APA’s directive that a “reviewing court shall ... set aside agency action ... found to be ... an abuse of discretion,” 5 U.S.C. § 706(2)(A), with a counterpart APA provision that judicial review under § 706 does not apply “to the extent that ... agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). The Supreme Court observed in Chaney that in some circumstances agency decisionmaking may legitimately rely on factors whose evaluation depends so much on the agency’s own expertise that it is not feasible for a court to review the decision even for “clear error,” without improperly substituting its own judgment for the agency’s. In the Court’s words, “if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for ‘abuse of discretion.’ ” 470 U.S. at 830, 105 S.Ct. at 1655. The Court reasoned that in circumstances where a court has no competence to determine if an agency has abused its discretion, judicial review is precluded under the terms of § 701(a)(2). Thus, the presumption that agency nonenforcement is unreviewable stems from the fact that “an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.” 470 U.S. at 831, 105 S.Ct. at 1656. The Court identified such factors: “whether agency resources are best spent on this violation or another, ... whether the particular enforcement action is likely to suceed if it acts, and indeed, whether the agency has enough resources to undertake the action at all.” Id. Apart from such inherently unreviewable factors, the Chaney opinion acknowledges that most agency decisions rest on grounds that are susceptible to judicial review for “abuse of discretion.” In these cases, the proper construction of §§ 701(a)(2) and 706(2)(A) requires a court to determine whether the agency’s decision was “arbitrary” or “capricious.” Furthermore, the Supreme Court’s citation in Chaney to its"
},
{
"docid": "22150054",
"title": "",
"text": "from Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), which held that section 701(a)(2) of the Administrative Procedure Act (precluding review of an “agency action ... committed to agency discretion by law”) barred judicial review of the FDA’s refusal to bring enforcement actions to prevent the use of lethal-injection drugs in executions. See 470 U.S. at 832, 105 S.Ct. 1649 (“[A]n agency’s decision not to take en forcement action should be presumed immune from judicial review under § 701(a)(2).”)- We read Heckler as “[e]m-phasizing that agencies are better equipped than courts to prioritize administrative concerns and actions,” and noted the Court’s determination that: even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely.... [I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.” Ekimian, 303 F.3d at 1158 (omissions and alterations in original) (quoting Heckler, 470 U.S. at 830, 105 S.Ct. 1649). Other circuits have similarly applied Heckler to hold that the absence of a “meaningful standard” precludes review of the BIA’s refusal to reopen a case sua sponte. See Enriquez-Alvarado v. Ashcroft, 371 F.3d 246, 249 (5th Cir.2004) (also quoting Ekimian’s requirement that there be a “sufficiently meaningful standard”); Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th Cir.2003) (also citing Ekimian); Luis v. INS, 196 F.3d 36, 41 (1st Cir.1999) (holding that under Heckler the court lacked jurisdiction to review the BIA’s refusal to reopen sua sponte because “[tjhere are no guidelines or standards which dictate how and when the BIA should invoke its sua sponte power”). Applying Ekimian leads to the same conclusion in this case. First, as in Eki-mian, there is no statutory basis for administrative closures. Nor is there any regulatory basis for administrative"
},
{
"docid": "3944085",
"title": "",
"text": "due process under the first, fourth, fifth and ninth amendments to the Constitution. In a memorandum opinion and order issued on November 15, 1985, the district court granted the FBI’s motion for summary judgment. The court found that the FBI had not adopted a binding policy regarding the hiring of homosexuals and that it therefore was free to determine on a case-by-case basis whether to hire a particular homosexual applicant. In reaching this decision, the court examined various FBI memoranda and letters unearthed by Padula during discovery. Addressing the constitutional claim, the court found that the challenged classification of homosexuals need only satisfy a “minimum standard of rationality,” a standard the court held was “clearly met in this case.” On appeal, we address two issues: first, whether the appointment decisions of the FBI are subject to judicial review in the absence of reliance upon constitutionally impermissible factors, and second, whether the alleged classification of homosexual applicants violated the equal protection mandate of the Constitution. II. The Administrative Procedure Act (“APA”) establishes a general presumption of reviewability: a person “suffering a legal wrong because of agency action ... is entitled to judicial review thereof.” 5 U.S.C. § 701(a) (1982). But, the Act recog nizes two situations where this presumption does not hold: where a statute precludes judicial review, 5 U.S.C. § 701(a)(1), or where agency action is committed to agency discretion by law, 5 U.S.C. § 701(a)(2). The FBI contends that its hiring decisions are shielded from review by both these exceptions. We agree that the challenged hiring decision is sheltered from APA review by the second exception and therefore do not reach the statutory preclusion issue. Under the “committed to agency discretion by law” exception to the presumption of reviewability, even if Congress has not affirmatively barred review, review will not be had “if no judicially manageable standards are available for judging how and when an agency should exercise its discretion.” Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). Judicially manageable standards may be found in formal and informal policy statements and regulations as"
},
{
"docid": "157218",
"title": "",
"text": "discretion, and thus is not subject to judicial review under the APA. See 5 U.S.C. § 701(a)(2). Section 701(a)(2) of the APA precludes judicial review of any action or decision by an administrative agency to the extent that “agency action is committed to agency discretion by law.” The Supreme Court has stated, however, that § 701(a)(2) “is a very narrow exception” that only applies “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). In other words, judicial review is precluded only when “the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). However, in cases involving an agency’s decision not to take enforcement action, the Court in Chaney created a “presumption of unreviewability.” Id. 105 S.Ct. at 1657; see also id. at 1656 (stating that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion” and “should be presumed immune from judicial review under § 701(a)(2)”). The Court explained that the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard legislative direction in the statutory scheme that the agency administers. Congress may limit an agency’s exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise circumscribing an agency’s power to discriminate among issues or cases it will pursue____ ... If [Congress] has indicated an intent to circumscribe agency enforcement discretion, and has provided meaningful standards for defining the limits of that discretion, there is “law to apply” under § 701(a)(2), and courts may"
},
{
"docid": "12640745",
"title": "",
"text": "to apply,” the USIA decision is nonetheless subject to judicial review under fundamental precepts of administrative law which mandate reasoned decisions, decisions which are consistent with congressional intent and which do not markedly deviate from existing policy unless articulated reasons for the change are given. This case presents the tension between two provisions in the Administrative Procedure Act (APA). Section 701(a)(2) of Title 5 of the United States Code precludes judicial review of any “agency action [which] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2) (1982). Section 706(2)(A), however, permits judicial review of agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Recently, in Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court construed section 701(a)(2) and addressed its apparent conflict with section 706(2)(A): ... even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for “abuse of discretion.” Heckler v. Chaney, 470 U.S. at 830, 105 S.Ct. at 1655. As the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, stated “[t]he legislative history of the Administrative Procedure Act indicates that [5 U.S.C. § 701(a)(2)] is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971) (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). Thus, in order to find that an agency action is not subject"
},
{
"docid": "12387419",
"title": "",
"text": "Administrative Procedure Act. Chaney, 470 U.S. at 830, 105 S.Ct. at 1655 (citing Abbott Labs., 387 U.S. at 141, 87 S.Ct. at 1512). The dispositive issue, therefore, is whether the relevant statutory scheme and regulations promulgated pursuant to it, provide meaningful standards by which to review a U.S. Trustee’s removal of a panel member from active case rotation, or whether such action is committed to agency discretion by law and is therefore immune from judicial review under Section 701(a)(2). Section 701(a)(2) applies “even where Congress has not affirmatively precluded re view,” and provides that judicial review is unavailable when a statute is drawn so that a court would have no meaningful standard against which to judge [an] agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decision-making to the agency’s judgment absolutely .... if no judicially manageable standards are available for judging how and when an agency .should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.” Chaney, 470 U.S. at 830, 105 S.Ct. at 1655. Judicial review is available only where there are standards, definitions, or other grants of power [that] deny or require action in given situations.... A meaningful standard does not exist where the applicable law is so broadly drawn that the court has no standard or substantive priorities against which to measure an agency’s discretion. ... If regulations do not provide guidance about specific legal standards for judicial review, agency action is immune from such review. Madison-Hughes, 80 F.3d at 1127 (citations omitted). “Such a determination is statute specific ... and relates to the language of the statute and whether the general purposes of the statute would be endangered by judicial review.” County of Esmeralda v. U.S. Dep’t of Energy, 925 F.2d 1216, 1218 (9th Cir.1991) (citations omitted). The fact that an agency action involves some discretion does not necessarily make it unreviewable. Rather, the question is whether the Secretary ... enjoys absolute discretion — whether such a decision is totally committed to the judgment of the agency because of the"
},
{
"docid": "22669596",
"title": "",
"text": "Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), where prison inmates in Texas and Oklahoma sought to compel the Food and Drug Administration to enforce a federal law prohibiting the “unapproved use of an approved drug”— i.e., the unapproved use of particular drugs for human execution. Id. at 823, 105 S.Ct. 1649. The Supreme Court denied relief, holding that the decision of an administrative agency to exercise its “discretion” not to undertake certain actions is presumed to be immune from review under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701(a)(2). 470 U.S. at 834, 105 S.Ct. 1649. Emphasizing that agencies are better equipped than courts to prioritize administrative concerns and actions, the Court held that: even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely.... [I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.” Id. at 830,105 S.Ct. 1649. The Ekimians suggest that In re J-J-provides a meaningful judicial standard for reviewing the BIA’s discretion because it indicates that the BIA will reopen a proceeding sua sponte when “exceptional situations” exist. We do not believe that an acknowledgment by the BIA that it may reopen proceedings, and a statement that it will do so under “exceptional situations,” without more, authorizes us to review the BIA’s decision for abuse of discretion. In In re J-J-, the BIA acknowledged only that § 3.2(a) “allows the Board to reopen proceedings in exceptional situations”; it did not hold that the regulation requires the Board to reopen proceedings in exceptional situations. Moreover, the BIA provided no explanation as to what constitute “exceptional situations” — except that the facts in In re J-J- failed to describe them. The cases in which we"
},
{
"docid": "20877755",
"title": "",
"text": "136 (1971). There, the Court interpreted the exception narrowly, finding it “applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Id. at 410, 91 S.Ct. 814 (quoting S.Rep. No. 752, 79th Cong., 1st Sess. 26 (1945)). Subsequently, in Heckler v. Chaney, the Supreme Court further refined its interpretation of Section 701(a)(2). Distinguishing the exception in Section 701(a)(1) from that in Section 701(a)(2), the Court stated: The former [§ 701(a)(1) ] applies when Congress has expressed an intent to preclude judicial review. The latter [§ 701(a)(2) ] applies in different circumstances; even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.” 470 U.S. at 830, 105 S.Ct. 1649 (emphasis added). Relevant to the present issue, the Supreme Court then exempted from the APA’s “presumption of reviewability” non-enforcement decisions made by an agency. Id. at 831, 105 S.Ct. 1649 (disagreeing with the lower court’s “insistence that the ‘narrow construction’ of § (a)(2) required application of a presumption of reviewability even to an agency’s decision not to undertake certain enforcement actions”). The Court distinguished the availability of review for the type of agency action in Over-ton Park from the challenged agency decisions in Heckler: Overton Park did not involve an agency’s refusal to take requested enforcement action. It involved an affirmative act of approval under a statute that set clear guidelines for determining when such approval should be given. Refusals to take enforcement steps generally involve precisely the opposite situation, and in that situation"
},
{
"docid": "16792803",
"title": "",
"text": "91 S.Ct. at 823. Nevertheless, an agency’s decision may on occasion transcend reasonableness and become a “clear error of judgment.” State Farm, 463 U.S. at 43, 103 S.Ct. at 2867; Overton Park, 401 U.S. at 416, 91 S.Ct. at 824. It was this second, “abuse of discretion” standard found in Overton Park that this court applied in El Congreso II. See 626 F.2d at 88-89. After Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), however, there has been some uncertainty about how these principles apply in cases involving agency inaction.' In Chaney, the Supreme Court precluded judicial review of a decision by the Food and Drug Administration not to institute an enforcement proceeding against parties allegedly violating the Federal Food, Drug, and Cosmetic Act. More generally, the Supreme Court stated that “an agency’s decision not to take enforcement action should be presumed immune from judicial review ... [although] the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 832-33, 105 S.Ct. at 1656 (footnote omitted). The Chaney holding derives from an ongoing effort to reconcile the APA’s directive that a “reviewing court shall ... set aside agency action ... found to be ... an abuse of discretion,” 5 U.S.C. § 706(2)(A), with a counterpart APA provision that judicial review under § 706 does not apply “to the extent that ... agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). The Supreme Court observed in Chaney that in some circumstances agency decisionmaking may legitimately rely on factors whose evaluation depends so much on the agency’s own expertise that it is not feasible for a court to review the decision even for “clear error,” without improperly substituting its own judgment for the agency’s. In the Court’s words, “if no judicially manageable standards are available for judging how and when an agency should exercise its discretion then it is impossible to evaluate agency action for ‘abuse of discretion.’ ” 470 U.S. at 830, 105 S.Ct. at 1655. The Court reasoned"
},
{
"docid": "1709071",
"title": "",
"text": "NHTSA’s denial of appellant’s petition is subject to judicial review unless Congress has “affirmatively precluded review” in the Motor Safety Act or unless NHTSA’s decision is not governed by a “meaningful” legal standard against which a court can measure its validity. Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985). The first exception to APA review, affirmative preclusion by Congress, derives from 5 U.S.C. § 701(a)(1); the second, lack of judicially manageable standards, derives from § 701(a)(2). In Chaney, the Supreme Court observed that “an agency decision not to enforce” usually is not governed by “judicially manageable standards” and “often involves a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise”; therefore it “should be presumed immune from review under § 701(a)(2).” Id. at 830-32, 105 S.Ct. at 1655-56. The Chaney Court, however, also “emphasize[d] that the [nonenforcement] decision is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.” Id. at 832-33, 105 S.Ct. at 1656. It is critical for our purposes to note that Chaney was explicitly based on § 701(a)(2) — the “no law to apply” section of the APA — and in no way implicated § 701(a)(1), the congressional preclusion exception. A. The “Law to Apply” in This Case The Chaney Court said it was “leaving to one side the problem of whether an agency’s rules might under certain circumstances provide courts with adequate guidelines for informed judicial review of decisions not to enforce.” Id. at 836, 105 S.Ct. at 1658. This case, however, squarely presents that situation in which an agency’s own regulations do contain a “judicially manageable” standard for making non-enforcement decisions. The “reasonable possibility” standard of NHTSA’s own regulations clearly requires NHTSA to make a factual judgment about the chances that a safety-related defect exists, based on the evidence compiled during the “technical review” prescribed by 49 C.F.R. § 552.6. This kind of factual judgment is definitely susceptible to judicial review, although, of course, under the APA,"
},
{
"docid": "12387418",
"title": "",
"text": "case do not dispute that the U.S. Trustee’s Office is an agency within the definition of the Administrative Procedure Act or that Joelson’s removal from active case rotation constituted final agency action as defined by the Act. We must therefore only decide whether Joelson is able to “clear the hurdle of [Section] 701(a),” to be entitled to judicial review of the agency action at issue. Chaney, 470 U.S. at 828, 105 S.Ct. at 1654 (stating that, “as long as the action is a ‘final agency action for which there is no other adequate remedy in a court,’ ” judicial review is available if a party overcomes the exceptions provided for in Section 701(a)). Title 28 U.S.C. §§ 581, et seq., the statutory scheme governing the U.S. Trustees Program, contains no express indication that “Congress sought to prohibit judicial review and there is most certainly no ‘showing of “clear and convincing evidence” of a ... legislative intent’ to restrict access to judicial review,” so Section 701(a)(1) does not prevent judicial review of Joelson’s claims under the Administrative Procedure Act. Chaney, 470 U.S. at 830, 105 S.Ct. at 1655 (citing Abbott Labs., 387 U.S. at 141, 87 S.Ct. at 1512). The dispositive issue, therefore, is whether the relevant statutory scheme and regulations promulgated pursuant to it, provide meaningful standards by which to review a U.S. Trustee’s removal of a panel member from active case rotation, or whether such action is committed to agency discretion by law and is therefore immune from judicial review under Section 701(a)(2). Section 701(a)(2) applies “even where Congress has not affirmatively precluded re view,” and provides that judicial review is unavailable when a statute is drawn so that a court would have no meaningful standard against which to judge [an] agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decision-making to the agency’s judgment absolutely .... if no judicially manageable standards are available for judging how and when an agency .should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.” Chaney, 470 U.S."
},
{
"docid": "11024467",
"title": "",
"text": "be extended to a recipient under a law administered by [HHS]....” 45 C.F.R. §80.2. Because HHS is a federal agency which provides financial assistance through the Medicare and Medicaid programs, it must comply with Title VI. The plaintiffs’ suit, claiming HHS has failed to collect specified data mandated by Title VI, must be evaluated under the APA. Section 701 provides for judicial review of agency actions except “to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701. If it is determined that either situation exists, then a court must decline to exercise jurisdiction over the matter. Heckler v. Chaney, 470 U.S. 821, 828, 105 S.Ct. 1649, 1654, 84 L.Ed.2d 714 (1985). If the matter is not precluded by review, then the court must analyze whether the agency’s action was “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A). In Chaney, the Supreme Court has provided its most recent detailed analysis and formulation of 5 U.S.C. § 701(a)(2). The Court held that “even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion.” ' 470 U.S. at 830, 105 S.Ct. at 1655 (emphasis added). In the present ease, the dispositive issue is whether the statutory scheme of Title VI and its accompanying implementing regulations provide meaningful standards by which to judge the collection of data by HHS, or whether monitoring compliance in the form of data collection is committed to agency discretion by law, precluding review under 5 U.S.C. § 701(a)(2). III. Plaintiffs contend that the court has subject matter jurisdiction under the APA, 5 U.S.C. §§ 701-706. Plaintiffs first rely upon section 706(1) as justification for the court’s jurisdiction. This section provides for court intervention to “compel agency action unlawfully withheld.... ” Agency action is “unlawfully withheld” only when “the agency has violated its statutory mandate by failing to act.” Environmental Defense Fund, Inc. v. Costle, 657 F.2d"
},
{
"docid": "22150053",
"title": "",
"text": "BIA decision, In re J-J-, 21 I. & N. Dec. 976 (BIA 1997), had stated that the Board had the authority “to reopen proceedings sua sponte in exceptional situations,” we held that “an acknowledgment by the BIA that it may reopen proceedings, and a statement that it will do so under ‘exceptional situations,’ without more,” did not give us the jurisdiction to review the BIA’s decision for abuse of discretion. Ekimian, 303 F.3d at 1157-58 (quoting In re J-J-, 21 I. & N. Dec. at 984). In this regard, we noted that“the BIA provided no explanation as to what constitute ‘exceptional situations’ except that the facts in In re J-J failed to describe them.” Id. at 1158. We therefore concluded: “Because we cannot discover a sufficiently meaningful standard against which to judge the BIA’s decision not to reopen under § 3.2(a), we hold that we do not have jurisdiction to review the Ekimi-ans’ claim that the BIA should have exercised its sua sponte power.” Id. at 1159. In reaching this conclusion, we also took guidance from Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), which held that section 701(a)(2) of the Administrative Procedure Act (precluding review of an “agency action ... committed to agency discretion by law”) barred judicial review of the FDA’s refusal to bring enforcement actions to prevent the use of lethal-injection drugs in executions. See 470 U.S. at 832, 105 S.Ct. 1649 (“[A]n agency’s decision not to take en forcement action should be presumed immune from judicial review under § 701(a)(2).”)- We read Heckler as “[e]m-phasizing that agencies are better equipped than courts to prioritize administrative concerns and actions,” and noted the Court’s determination that: even where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely.... [I]f no judicially manageable standards are available for judging how"
},
{
"docid": "22684608",
"title": "",
"text": "would have attended the hearing, whether Denko was unable to understand the letter — that are not insubstantial and require review by a three-member panel. In response, the INS asserts that the Board’s decision to review Denko’s appeal using summary-affirmance procedures is insulated from review. Citing Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the INS states that because the Administrative Procedure Act (“APA”) governs judicial review of agency actions, judicial review is inappropriate when the “agency action is committed to agency discretion by law.” Id. at 828, 105 S.Ct. 1649 (quoting 5 U.S.C. § 701(a)(2)). Interpreting this phrase using legislative history, the Heckler Court determined that judicial review is precluded “if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a ease, the statute (‘law’) can be taken to have ‘committed’ the decisionmaking to the agency’s judgment absolutely.” Id. at 830, 105 S.Ct. 1649. The INS argues that a Board member’s decision to streamline a case is a decision that has been committed to the agency’s discretion because it involves “ ‘a complicated balancing of a number of factors which are peculiarly within the expertise of the agency.’ ” Appellee’s Br. at 19 (quoting Heckler, 470 U.S. at 831, 105 S.Ct. 1649). Specifically, the INS argues that in order for the agency to determine that no novel or complex issues are raised it must evaluate the Board’s caseload — a task ideally suited to the Board, not the court. As an initial matter, this argument for committing this decision to the agency’s discretion is doubtful because there are judicially manageable standards available to a reviewing court. Streamlining procedures are used only when the result reached by the IJ is correct, any errors are harmless or nonmaterial, and either the issue is controlled by precedent and does not require application to novel facts or the factual and legal questions are insubstantial and do not warrant three-member review. These factors straight from the regulation itself provide the necessary guidelines for judicial"
},
{
"docid": "6500754",
"title": "",
"text": "the matter in dispute has been “committed to agency discretion by law.” The Supreme Court’s first significant discussion of § 701(a)(2) came in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). There, the Court indicated that this is a “very narrow exception,” which applies only “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’ ” Id. at 410, 91 S.Ct. at 820 (quoting S.Rep. No. 79-752 (1945)). Since the Court’s decision in Overton Park, the “no law to apply” formula has come to refer to the search for substantive legal criteria against which an agency’s conduct can be seriously evaluated. If no such “judicially manageable standards” are discernable, meaningful judicial review is impossible, and agency action is shielded from the scrutiny of the courts. Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1654, 84 L.Ed.2d 714 (1985); Webster v. Doe, 486 U.S. 592, 599-600, 108 S.Ct. 2047, 2051-2052, 100 L.Ed.2d 632 (1988). In such circumstances, the courts have no legal norms pursuant to which to evaluate the challenged action, and thus no concrete limitations to impose on the agency’s exercise of discretion. In other words, § 701(a)(2) encodes the principle that an agency cannot abuse its discretion, and thus violate § 706(2)(A), where its governing statute confers such broad discretion as to essentially rule out the possibility of abuse. In determining whether a matter has been committed solely to agency discretion, we consider both the nature of the administrative action at issue and the language and structure of the statute that supplies the applicable legal standards for reviewing that action. See, e.g., Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, Bureau of Consular Affairs, 104 F.3d 1349, 1353 (D.C.Cir.1997). The Supreme Court has recognized that certain categories of administrative decisions, including refusals to take enforcement actions, are presumptively outside the bounds of judicial review. See Chaney, 470 U.S. at 831-34, 105 S.Ct. at 1655-57; see also Lincoln v. Vigil, 508 U.S. 182,"
}
]
|
80048 | "were committed, since these suffice for disposition of the case. II. McAllister does not dispute that if the judge was warranted in finding negligence on the part of its employee Skogen, the standard New York Harbor pilotage clause contained in its contract with Marina would not exempt it from liability to the death claimants. Pennsylvania R. R. Co. v. The Beatrice, 275 F.2d 209, 213-214 (2 Cir. 1960). However, as we also held in that case, the pilotage clause would entitle McAllister to indemnification from the El Salvador for liability thus fastened upon it. See also Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932); REDACTED And McAllister vigorously challenges the judge’s holding that fault attributed to the Russell 18 requires application of the tug’s limitation fund to satisfy the death claims for which the El Salvador’s is sufficient, and denial of its claim for damage to the tug against the balance of that fund. In 1956 the previous owner of the Russell 18 had installed its reconditioned engine 21"" or 22"" off center to port, thereby creating a slight port list of a couple of degrees. To compensate for the uneven distribution of weight, the crew adopted the practice of carrying 1000 gallons more fuel oil in the starboard than in the port wing" | [
{
"docid": "23153569",
"title": "",
"text": "unless the state action was finally decided upon a different ground. We think the Court of Appeals proceeded to decide the appeal on a different ground and that Judge Crouch supported the trial court only on the theory that Healey, when directing the maneuver, was engaged in the business of, and was the servant of, Moran. He affirmed the decision of Untermyer, J., that the “pilotage clause” was ineffective to relieve Moran from liability to Robins Company, not because Moran failed to comply with its terms by neglecting to furnish a licensed Sandy Hook pilot, but because the clause, though complied with, was not of sufficient probative weight to offset other circumstances indicating that Healey was at all times engaged in the business of Moran and acting as its servant. In other words, the final decision in the state action in no way impugned the “pilotage clause” or questioned its validity as between the parties. If we may properly resort to the statements in the opinion of Judge Crouch, there is nothing to prevent recovery by the libelant under the “pilotage clause.” Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. The decision of the state court in no way adjudicated the rights under that clause as between Moran and the steamship owner, since no cross-answer demanding relief against a codefendant was filed in that action. Such an application for cross-relief was, under section 264 of the New York Civil Practice Act, a necessary step to determine the question before us. The No. 34, 25 F.(2d) 602 (C.C.A.2). See, also, George A. Fuller Co. v. McCloskey, 228 U.S. 194, 33 S.Ct. 471, 57 L.Ed. 795. The contention that a cross-answer was not needed in a case where the Robins Company had joined Moran and N.L.T. as defendants under section 213 is entirely without merit. The appellee, however, cites Russell v. Russell, 134 F. 840 (C.C.A.3), and Oglesby v. Attrill, 20 F. 570 (Wallace, J., in U. S. Circuit Court), as holding that an unconditional affirmance of a judgment by an appellate court, though"
}
]
| [
{
"docid": "14543369",
"title": "",
"text": "dock the vessel.” 104 F.2d at page 670. . “If, on the other hand, the pilotage clause were to be held binding on the owners, this could be only on the assumption that the clause was such a customary one or even such a universal one in towing work in New York Harbor that the owners, by stipulating that the charterer should provide pilotage, consented to have their ordinary rights abridged by the pi-lotage clause.” . “But, the charterer in dealing with the tug company did not act as the owner’s agent. The charterer had the authority to provide for pilotage, but whatever undertaking it entered into in doing so was its own responsibility. It is not reasonable to imply from the charterer’s authority to provide a pilot, the incidental authority either to waive any rights of the owner or to subject the owner to an employer’s responsibility for the actions of a person who in fact was controlled by and owed primary allegiance to another employer. The implication of such authority would not be justified even if, as the tug company contends, the owner of the Jules Fribourg was aware that pi-lotage clauses such as the present one were in frequent use.” . “Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, involved the meaning and validity of a pilotage contract substantially the same as the one here. One of Dalzell’s tug captains negligently piloted Sun Oil’s vessel causing the boat to ground and suffer damages. Sun Oil sued Dalzell. The contract exempting Dalzell from liability for pilotage was pleaded as a defense. This Court held that the tug company could validly contract against being ‘liable for any damage’ caused by the negligence of one of its captains in piloting Sun Oil’s vessel and construed the contract there as having that effect.” United States v. Nielson, 349 U.S. 129, 131, 75 S.Ct. 654, 656, 99 L.Ed. 939. . “If only one party sues and the other merely defends the suit, and upon the proofs it appears that both parties are in fault, the court declares"
},
{
"docid": "22362828",
"title": "",
"text": "to drive hard bargains. These two reasons are no less applicable today than when The Syracuse and The Wash Gray were decided. And both reasons apply with equal force whether tugs operate as common carriers or contract carriers. The dangers of modern machines make it all the more necessary that negligence be discouraged. And increased maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions. The practical result of leaving towers wholly free to contract against all liability for their negligence is strikingly illustrated in an English case. The Port of London controlled and operated all tugs in the harbor and by law no ship could enter without the aid of Port Authority tugs. But no shipowner could get a Port tug unless he first signed a contract agreeing to be liable for all damages caused by the negligence of the tug’s employees. Under such a contract the court allowed the Port Authority to recover damages from a ship towed for injuries to the Port’s tug caused by negligence of the Port’s employees running the tug. Such a result would be impossible under the rule we accept as controlling. It is contended that the towage contract rule we have accepted was rejected by this Court in Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291. We disagree. Unlike The Syracuse, The Wash Gray and the instant case, Sun Oil did not involve a contract designed to relieve a towboat owner from liability for negligent towage. The contractual clause there involved related only to pilotage. The clause provided that a tug captain who piloted a vessel propelled on its own power should be considered the servant of that vessel and that the tug owners should not be liable for his negligent pilotage. Sun Oil construed this contract as relieving the tugboat owners from all liability for negligence of the tug captain while piloting Sun Oil’s vessel and held the contract valid as thus construed. But both the Court of Appeals and this Court recognized"
},
{
"docid": "13175423",
"title": "",
"text": "The Port Covington, supra, (Document No. 25 in No. 149 of 1949 in Admiralty). Respondent and impleaded respondent will, however, be liable for interest at 6% from this date until the judgment is paid and for costs. The Cross-Libel The impleaded respondent is entitled to judgment in its favor on its cross-libel (Document No. 11) against respondent Canadian Foreign Steamship Co., Ltd. The towing company supplied the tugs under its contract with Isbrandtsen, which contract contained the following clause (D(8) of IR-8); “Whenever the Master or other officer of any tug or any licensed pilot goes on board a vessel to assist her movement or handling, he becomes and continues to be solely the servant of said vessel and her owners in respect to all acts done by him and all orders given by him to any tugs engaged or to said ves sel or otherwise in the movement or handling of said vessel; and none of the tugs or their owners, agents or charterers shall be responsible or liable for any claims or any damages caused by or resulting from .such acts or orders.” tlO] The accident here was caused by the negligence of Captain Howard in his capacity as docking pilot; therefore, the towing company is not responsible for said negligence. Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932). The court does not accept the contention of respondent that the towing company was negligent in not supplying more tugs in view of the uncontested testimony that heavier and bigger ships were often docked at this pier and that not more than two tugs had even been used. It is also noted that the wind was not unusually high for the season of the year, that there is no contention that the wind alone caused the collision, or that the towing company should have supplied more tugs merely because of the wind. Captain Howard directed the operations and was negligent in that he could have done several things to avoid the impact. His negligence was in his capacity as docking"
},
{
"docid": "362682",
"title": "",
"text": "packages to plaintiff’s disadvantage. But could plaintiff complain of a rule imposed by an employer prohibiting his employees from collecting fees for themselves from his customers? Such an apparently reasonable restriction on one’s employees would not seem to be an anti- • trust violation. If that is true, it is difficult to see how a more limited understanding with one’s employees having a lesser impact on competitors could be found to be unlawful. . Plaintiff points to a clause in the agreement stating that Red Stack shall not be liable for the acts of its employees when they are serving as pilots. But this clause is merely an attempt by Red Stack to relieve itself from liability; it does not change the essential fact that the pilotage services are furnished in connection with and as a result of the masters’ employment by Red Stack. Moreover, the cases cited by plaintiff, even if relevant, do not support its contention that the masters are not acting within the scope of their employment when they perform pilotage services. Bisso v. Inland Waterways Corp., 349 U.S. 85, 92-95, 75 S.Ct. 629, 99 L.Ed. 911 (1955); Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 294-95, 53 S.Ct. 135, 77 L.Ed. 311 (1932); United States v. SS President Van Buren, 490 F.2d 504-07 (9th Cir. 1973); and California v. S/T Norfolk, 435 F.Supp. 1039, 1046-47 (N.D.Cal.1977), state no more than that for purposes of determining a vessel’s liability, a pilot is considered the employee of the vessel he is navigating, not of the tug. That conclusion does not imply that the pilot cannot at the same time be viewed as acting within the general scope of his employment for purposes of applying the labor exemption especially where, as here, his pilotage is a direct result of his employment by the tug. Finally, plaintiff argues that the pilots’ fees are not included in the W-2 statements issued by Red Stack and that the union’s collective bargaining agreement does not discuss the pilotage work. But this contention, like plaintiff’s other theories, ignores the totality of the"
},
{
"docid": "23600715",
"title": "",
"text": "tow, imposing a vicarious liability upon its owner. The Court of Appeals reasoned that since the tow had agreed to indemnify the tug against claims of third parties, the third party could proceed directly against the tow because “The libel was filed by the owner of the tow who had agreed to take the risk of the enterprise and pay any damages that might be incurred, and as was said by Judge Learned Hand in the Kookaburra, 2 Cir., 69 F. 2d 71, 73, ‘the admiralty, whose procedure is especially plastic, can skip the by-ways and head direct for the goal.’ ” 209 F. 2d 410, 414. In the absence of the contractual provisions quoted, the owner of the tow would not be liable to the third party. Sturgis v. Boyer, 24 How. 110; The Eugene F. Moran, 212 U. S. 466, 473. On the other hand, the tow did agree to indemnify the tug against liability in the circumstances here involved. But a promise to indemnify is a promise running to the indemnitee, here the tug, and is not ordinarily construed as a contract for the benefit of third parties. Nor does an agreement to hold another harmless against claims of third parties, if it conveys anything more than the term “indemnify,” suggest that the contract was intended for the benefit of third parties. It is true that the clause states that the members of the crew are to “become the servants of and identified with such vessel or craft” and that the tug will “not be responsible” for their acts. If in fact this were the relationship, the tow would be liable directly to third parties. This was not the fact, however, and any liability of the tow to the Winding Gulf can only be based upon the contractual language. But the history of towage and pilotage release-from-negligence clauses suggests that this terminology is merely an attempt to phrase a disclaimer of liability applicable to a towage service in the terms of the pilotage clause successfully invoked in Sun Oil Co. v. Dalzell Towing Co., 287 U. S."
},
{
"docid": "16695916",
"title": "",
"text": "of unfair advantage, monopolistic tendencies may be greater in some industries, or there may be insufficient alternative deterrents to negligence in certain contexts. In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), for example, the Supreme Court invalidated a towage contract releasing the tower from all liability for its own negligence on public policy grounds. The Court noted that such a rule was “merely a particular application to the towage business of a general rule long used by courts and legislatures to prevent enforcement of release-from-negli-genee contracts in many relationships such as bailors and bailees, employers and employees, public service companies and their customers,” id. at 90-91, 75 S.Ct. 629, and reasoned that the purpose of the rule was “(1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods and services from being overreached by others who have power to drive hard bargains.” Id. at 91, 75 S.Ct. 629. Applying the rule to the towage context was appropriate, the Supreme Court found, because of the risks involved and because “increase maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions.” Id. The Supreme Court distinguished pilotage contracts, in which it had previously found exculpatory clauses to be valid, see Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932), in part because pilots, unlike towage employees, operate with a high degree of independence from the towing company. The Supreme Court thus reasoned, “[i]t is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another company’s vessel on that vessel’s own power.... It is quite a different thing, however, to permit a towing company to exempt itself by contract from all liability for its own employees’ negligent towage of a vessel.” Id. at 94, 75 S.Ct. 629. Circuits interpreting Bisso have underscored that Bisso’s holding -was grounded in a recognition of the unequal nature"
},
{
"docid": "7785962",
"title": "",
"text": "the vessel itself,” this-is exactly what the docking pilot was-, doing. His negligence was not the result, of failing to order a second tug when he-took command but rather in handling the-ship in the way he did with the one assisting tug. Factual differences and the nature of' the claims distinguish Pennsylvania R. R. v. The S.S. Beatrice, 161 F.Supp. 136 (S.D.N.Y.1958), aff’d, 275 F.2d 209 (2d Cir. 1960). The interpretation of “handling” in Birkenstein seems closer to the-situations facing docking pilots and, accordingly, we hold that the docking pilot’s acts were within the terms of the pilotageclause. There are no facts in the record to support libelant’s argument that thepilotage clause should be judicially declared invalid. Libelant points to certain, decisions arising in the Southern District, of New York which it claims disclose pilotage clauses containing almost identical language in their contracts with shipping-companies. From this similarity libelant reaches the conclusion that the towing-companies in the New York Harbor area, must have a monopoly and that, therefore, this court without further ado= should declare such clauses invalid. Libelant assumes again without supporting-proof that the towing companies are in a dominant or superior bargaining power- position in contrast to the comparatively helpless position of the steamship companies. A resolution of this factual issue •was not before the trial court; to the contrary, it found the pilotage clause to be ■effective. The parties had bargained; they had fixed their rates knowing their respective liabilities; they had settled their claims for years, recognizing the effect of the clause. The applicable law was well declared by the Supreme Court in Sante Fe, P. & P. Ry. v. Grant Bros. Construction Co., 228 U.S. 177, 188, 33 S.Ct. 474, 478, 57 L.Ed. 787 (1913), the Court saying: “There is no rule of public policy which denies effect to their expressed intention, but, on the contrary, .as the matter lies within the range of permissible agreement, the highest public policy is found in the enforcement of the ■contract which was actually made.” In Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct."
},
{
"docid": "1058525",
"title": "",
"text": "involved here. See Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932); Tankers & Tramps Corp. v. Tug Jane McAllister, 358 F.2d 896 (2d Cir. 1966). We reject completely Nautilus’ contention that this Pilotage Clause is invalid. The clause has been uniformly upheld against attack. See Sun Oil Co. v. Dalzell Towing Co., supra; Transpacific Carriers Corp. v. Tug Ellen F. McAllister, 336 F.2d 371 (2d Cir. 1964). Nautilus has adduced no evidence that the Clause is the result of a monopolistic bargaining position. To the contrary, Moran has demonstrated the reasonableness of shifting liability to the vessel. We further find that the tugs Helen Moran and Barbara Moran were not at fault. Nautilus’ only assertion of liability against the assisting tugs rests on its claim that the tugs failed to warn Ericksen of the imminence of collision. We find that the tugs functioned normally, carried out all orders given, and were not in a position to see what led up to collision. With respect to this aspect of the case, the total trial record establishes that the tugs were in no wise at fault. Nautilus’ claim for indemnity against Moran and its tugs is dismissed. Impleaded respondent shall submit findings of fact and conclusions of law in accordance with this memorandum within two weeks. So ordered."
},
{
"docid": "14543370",
"title": "",
"text": "justified even if, as the tug company contends, the owner of the Jules Fribourg was aware that pi-lotage clauses such as the present one were in frequent use.” . “Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, involved the meaning and validity of a pilotage contract substantially the same as the one here. One of Dalzell’s tug captains negligently piloted Sun Oil’s vessel causing the boat to ground and suffer damages. Sun Oil sued Dalzell. The contract exempting Dalzell from liability for pilotage was pleaded as a defense. This Court held that the tug company could validly contract against being ‘liable for any damage’ caused by the negligence of one of its captains in piloting Sun Oil’s vessel and construed the contract there as having that effect.” United States v. Nielson, 349 U.S. 129, 131, 75 S.Ct. 654, 656, 99 L.Ed. 939. . “If only one party sues and the other merely defends the suit, and upon the proofs it appears that both parties are in fault, the court declares this fact in the decree, and decrees to the libellant one-half of the damage sustained by him; the damage sustained by the respondent not being regarded as the subject of investigation determinable in that suit.” The North Star, 106 U.S. 17, at page 22, 1 S.Ct. at page 46."
},
{
"docid": "7785963",
"title": "",
"text": "such clauses invalid. Libelant assumes again without supporting-proof that the towing companies are in a dominant or superior bargaining power- position in contrast to the comparatively helpless position of the steamship companies. A resolution of this factual issue •was not before the trial court; to the contrary, it found the pilotage clause to be ■effective. The parties had bargained; they had fixed their rates knowing their respective liabilities; they had settled their claims for years, recognizing the effect of the clause. The applicable law was well declared by the Supreme Court in Sante Fe, P. & P. Ry. v. Grant Bros. Construction Co., 228 U.S. 177, 188, 33 S.Ct. 474, 478, 57 L.Ed. 787 (1913), the Court saying: “There is no rule of public policy which denies effect to their expressed intention, but, on the contrary, .as the matter lies within the range of permissible agreement, the highest public policy is found in the enforcement of the ■contract which was actually made.” In Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932), the pilotage clause was held to be ■effective and to define the rights of the parties, the Court stating: “Respondent [tug owner] had no exclusive privilege or monopoly in re.spect of the services that petitioner ■ desired to have performed for its tanker. And petitioner was under ■no compulsion to accept the terms of -respondent’s pilotage clause. There is nothing to suggest that the parties ■were not on equal footing or that they did not deal at arm’s length.” Id. at 294, 53 S.Ct. at 136. * * * * * * •“The provision that its tug captains while upon the assisted ship would be -the servants of her owner is an application of the well-established rule that when one puts his employee at the disposal and under the direction • of another for the performance of service for the latter, such employee while so engaged acts directly for . and is to be deemed the employee of the latter and not of the former.” Id. at 294-295, 53 S.Ct."
},
{
"docid": "1058524",
"title": "",
"text": "long followed by it in all of its operations, specifically disclaims Moran’s liability for the acts of a Moran employee acting as a pilot. The Clause clearly makes such a pilot the servant of the vessel. The contract for tugboat assistance in the instant case was oral, consisting of a telephone order by Fertig, the Master of the Sister Katingo, and acceptance by Moran’s dispatcher. Terms and conditions not being discussed, the prior dealings of the parties must be examined. The evidence here adduced convincingly demonstrates that Nautilus had full awareness and notice of the Pilotage Clause. Nautilus executives and Captain Fertig were not newcomers to this port. Over a considerable period of time they had been given copies of the Moran Rate Schedule wherein the aforesaid Clause was set out; had prior dealings with Moran and were fully aware of what the Clause embraced; knew the custom of the tug industry. From the entire trial record we are fully convinced, and accordingly we find, that the Pilotage Clause was incorporated into the oral contract involved here. See Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932); Tankers & Tramps Corp. v. Tug Jane McAllister, 358 F.2d 896 (2d Cir. 1966). We reject completely Nautilus’ contention that this Pilotage Clause is invalid. The clause has been uniformly upheld against attack. See Sun Oil Co. v. Dalzell Towing Co., supra; Transpacific Carriers Corp. v. Tug Ellen F. McAllister, 336 F.2d 371 (2d Cir. 1964). Nautilus has adduced no evidence that the Clause is the result of a monopolistic bargaining position. To the contrary, Moran has demonstrated the reasonableness of shifting liability to the vessel. We further find that the tugs Helen Moran and Barbara Moran were not at fault. Nautilus’ only assertion of liability against the assisting tugs rests on its claim that the tugs failed to warn Ericksen of the imminence of collision. We find that the tugs functioned normally, carried out all orders given, and were not in a position to see what led up to collision. With respect to this"
},
{
"docid": "16695917",
"title": "",
"text": "Court found, because of the risks involved and because “increase maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions.” Id. The Supreme Court distinguished pilotage contracts, in which it had previously found exculpatory clauses to be valid, see Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932), in part because pilots, unlike towage employees, operate with a high degree of independence from the towing company. The Supreme Court thus reasoned, “[i]t is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another company’s vessel on that vessel’s own power.... It is quite a different thing, however, to permit a towing company to exempt itself by contract from all liability for its own employees’ negligent towage of a vessel.” Id. at 94, 75 S.Ct. 629. Circuits interpreting Bisso have underscored that Bisso’s holding -was grounded in a recognition of the unequal nature of the relationship between towing companies and ships seeldng access to a port, and the otherwise inadequate incentives for towing companies to use reasonable care. Thus, while careful to examine the particularized facts of a defendant’s overreaching, the circuits generally agree that Bisso is limited to towage contracts. As the Eighth Circuit in Sander explained: The doctrine prohibiting a party from completely absolving itself from liability for its own negligence is limited to circumstances involving relationships similar to towage agreements, such as bailment, employment, or public service relationships. The Supreme Court has explained the circumstances justifying the limitation of exculpatory clauses in those situations as those involving a monopoly or unequal bargaining power. Where the peculiarities of those types of relationships do not justify application of the doctrine, we uphold the strong public policies of recognizing parties’ liberty to contract and enforcing contracts as written. 334 F.3d at 719. See also B.H. Morton v. Zidell Explorations, Inc., 695 F.2d 347, 351 (9th Cir.1982) (per curiam) (holding that an exculpatory clause in a marine repair contract"
},
{
"docid": "14543360",
"title": "",
"text": "are in agreement, particularly since there is no authority to the contrary. The finding and conclusion of the trial court on this point must be affirmed. The letter containing the pilotage clause was dated May 4, 1956. Although States Marine admits it received a copy of this letter, it argues that this was not the arrangement to which it agreed since Red Stack continued to send out invoices for services on the bottom of which was printed a different pilotage clause not containing any warranty provisions. States Marine was an impleaded respondent in The Jules Fribourg case, supra, where one reason why it escaped liability was that the pilotage clause contained no such warranty. Since it must have known that the paragraph added to the May 4, 1956 letter was intended to meet that situation, the finding of the trial court that in dealing with States Marine, Red Stack relied upon the warranty of authority in the pilotage clause, and that this clause was a part of the contract with States Marine, is plainly supported by the evidence. The fact that other more limited language appeared on the invoices does not require a different conclusion. Finally, States Marine contends that if Victory Carriers had been bound by the pilotage clause, it could nevertheless have recovered full damages from Red Stack. Hence, it is argued, there is no basis for a claim for indemnity against States Marine, — the failure to bind Victory Carriers made no difference. If the pilotage clause had been accepted or authorized by Victory Carriers, its validity could not be questioned. Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. As noted in Sun Oil, where the damage resulted solely from pilot error, the result of such a pilotage clause was that there could be no recovery from the towing company. Here, where the fault was both that of the pilot and that of the tug, the consequence must be that the owner’s recovery be reduced to one-half the damages. Such would be the result in any case of mutual"
},
{
"docid": "22362829",
"title": "",
"text": "for injuries to the Port’s tug caused by negligence of the Port’s employees running the tug. Such a result would be impossible under the rule we accept as controlling. It is contended that the towage contract rule we have accepted was rejected by this Court in Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291. We disagree. Unlike The Syracuse, The Wash Gray and the instant case, Sun Oil did not involve a contract designed to relieve a towboat owner from liability for negligent towage. The contractual clause there involved related only to pilotage. The clause provided that a tug captain who piloted a vessel propelled on its own power should be considered the servant of that vessel and that the tug owners should not be liable for his negligent pilotage. Sun Oil construed this contract as relieving the tugboat owners from all liability for negligence of the tug captain while piloting Sun Oil’s vessel and held the contract valid as thus construed. But both the Court of Appeals and this Court recognized that holding the pilotage contract valid did not conflict with The Syracuse or The Wash Gray. Indeed, this Court expressly stated that the Sun Oil decree was “not in conflict with the decisions” in The Syracuse and The Wash Gray. It is of course possible that the Court found an absence of conflict in the cases because of a different construction given the different contracts involved. We doubt this, but however this may be there are more basic differences upon which we prefer to rest this Court’s statement that Sun Oil did not conflict with the two prior cases. There are distinctions between a pilotage and a towage exemption clause which make it entirely reasonable to hold one valid and the other invalid. A pilotage clause exempts for the negligence of pilots only; a towage clause exempts from all negligence of all towage employees. Pilots hold a unique position in the maritime world and have been regulated extensively both by the States and Federal Government. Some state laws make them pub- lie officers, chiefly responsible"
},
{
"docid": "12347829",
"title": "",
"text": "help guide its movements. One of the tugs was crushed between the Gale and a pier while attempting to carry out a maneuver under orders of the tug captain piloting the Gale. The respondent brought this suit in admiralty to recover damages from the United States alleging that damages to the tug were caused by negligent pilotage orders of the tug captain while temporarily acting as “servant” of the Gale. After hearings the District Court found that the damages were caused by the pilot’s negligence “in persisting in his attempt to enter the slip after he knew or should have known that he could not overcome the force of the wind and tide and keep the Christopher Gale from sagging down on Pier 1.” On this finding the District Court entered a decree requiring the United States to pay respondent for damages brought about by this negligence. This decree was entered over the Government’s contention that the contract was invalid if construed as exempting respondent from liability for its own servant’s negligence. 112 F. Supp. 730. Agreeing with the District Court’s reasoning and decree, the Court of Appeals affirmed. 209 F. 2d 958. We granted certio-rari to consider the meaning and validity of the pilotage clause, 348 U. S. 811, and at the same time granted cer-tiorari in two other cases, today decided, which involve validity of contracts exempting towers from liability for negligent towage. Bisso v. Inland Waterways Corp., ante, p. 85; Boston Metals Co. v. The Winding Gulf, ante, p. 122. Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291, involved the meaning and validity of a pilotage contract substantially the same as the one here. One of Dalzell’s tug captains negligently piloted Sun Oil’s vessel causing the boat to ground and suffer damages. Sun Oil sued Dalzell. The contract exempting Dalzell from liability for pilotage was pleaded as a defense. This Court held that the tug company could validly contract against being “liable for any damage” caused by the negligence of one of its captains in piloting Sun Oil’s vessel and construed the contract there"
},
{
"docid": "12347830",
"title": "",
"text": "730. Agreeing with the District Court’s reasoning and decree, the Court of Appeals affirmed. 209 F. 2d 958. We granted certio-rari to consider the meaning and validity of the pilotage clause, 348 U. S. 811, and at the same time granted cer-tiorari in two other cases, today decided, which involve validity of contracts exempting towers from liability for negligent towage. Bisso v. Inland Waterways Corp., ante, p. 85; Boston Metals Co. v. The Winding Gulf, ante, p. 122. Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291, involved the meaning and validity of a pilotage contract substantially the same as the one here. One of Dalzell’s tug captains negligently piloted Sun Oil’s vessel causing the boat to ground and suffer damages. Sun Oil sued Dalzell. The contract exempting Dalzell from liability for pilotage was pleaded as a defense. This Court held that the tug company could validly contract against being “liable for any damage” caused by the negligence of one of its captains in piloting Sun Oil’s vessel and construed the contract there as having that effect. The question in this case, however, is whether the agreement of the ship being piloted to release the tug company from being “liable for any damage resulting” from negligent pilotage not only relieves the tug company from liability for damage, but allows it affirmatively to collect damages for injury to its own tug due to negligent pilotage by one of its tug captains. An agreement that one shall not be liable for negligence of a third person cannot easily be read as an agreement that one is entitled to collect damages for negligence of that third person. And there is no reason to stretch contractual language to force payment of damages under circumstances like these. ' A person supplying his own employees for use by another in a common undertaking cannot usually collect damages because of negligent work by the employee supplied. Clear contractual language might justify imposition of such liability. But the con tractual language here does not meet such a test and we do not construe it as authorizing"
},
{
"docid": "14543361",
"title": "",
"text": "by the evidence. The fact that other more limited language appeared on the invoices does not require a different conclusion. Finally, States Marine contends that if Victory Carriers had been bound by the pilotage clause, it could nevertheless have recovered full damages from Red Stack. Hence, it is argued, there is no basis for a claim for indemnity against States Marine, — the failure to bind Victory Carriers made no difference. If the pilotage clause had been accepted or authorized by Victory Carriers, its validity could not be questioned. Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. As noted in Sun Oil, where the damage resulted solely from pilot error, the result of such a pilotage clause was that there could be no recovery from the towing company. Here, where the fault was both that of the pilot and that of the tug, the consequence must be that the owner’s recovery be reduced to one-half the damages. Such would be the result in any case of mutual faults where the owner’s own employees were in charge of the ship. Great Lakes Towing Co. v. American S.S. Co., 6 Cir., 165 F.2d 368. The limitation of recovery to one-half, if the pilotage clause had bound Victory Carriers, would be an application of an established admiralty doctrine. “Where two vessels collide due to the fault of both, it is established admiralty doctrine that the mutual wrongdoers shall share equally the damages sustained by each, as well as personal injury and property damage inflicted on innocent third parties. This maritime rule is of ancient origin and has been applied in many cases * * Halcyon Lines v. Haenn Ship, etc., Corp., 342 U.S. 282, 284, 72 S.Ct. 277, 279, 96 L.Ed. 318, citing The North Star, 106 U.S. 17, 1 S.Ct. 41, 27 L.Ed. 91, and other cases. Where, as here, the damage is to the one vessel, half damages are recovered. Cf. The Schooner Catherine v. Dickinson, 17 How. 170, 58 U.S. 170, 15 L.Ed. 233. We note the precise language of the pilotage"
},
{
"docid": "16149492",
"title": "",
"text": "v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311, that had the master of the tug acted as contemplated in the contract, no liability on the part of the tug would have arisen because in such event the master and crew of the tug would have became pro tempore servants of the tow. The above decisions were concerned only with the effect of the towing contract as between the parties thereto, and the clause was enforced, when its conditions were met, by relieving the tug owner and tug from liability for damages for injury to the tow. The effect of the contract upon the rights of third parties to recover damages from either or both of the contracting parties was not involved. Such a right is asserted in the instant case in the claim of the owner of the Winding Gulf to recover from the owner of the tow the damages caused by the negligent operation of the tug. The tug is not before us since she refused to submit to the jurisdiction of the court and come into the case. She was, however, held liable in the New York suit; and in other cases the liability of the tug to third parties for negligent operation has been sustained notwithstanding the presence of a pilotage clause in the towage contract. See Robins Drydock & Repair Co. v. Navi-gazione Libera Triestina, 154 N.Y.Misc. 788, 279 N.Y.S. 257, affirmed 261 N.Y. 455, 185 N.E. 698; Moran Towing & Transportation Co. v. Navigazione Li-bera Triestina, 2 Cir., 92 F.2d 37. We are not called upon to decide whether the owner of a tug or the tug itself, which is operating under a contract containing the standard towing conditions, may ever escape liability to a third party for injuries caused by its negligence. We have merely to determine whether liability of the owner of a tow to third parties may be based on such an agreement. In Moran Towing & Transportation Co. v. Navigazione Libera Triestina, supra, such a contract was enforced in a suit against the owner of the"
},
{
"docid": "16149491",
"title": "",
"text": "a mishap, to repudiate the agreement upon which it obtained the service. Upon the authority of this case the validity of an analogous provision of a towing contract, exempting the tug from liability for damages under certain circumstances, was upheld by the Sixth Circuit in Great Lakes Towing Co. v. Bethlehem Transportation Corp., 6 Cir., 65 F.2d 543, and Great Lakes Towing Co. v. American S.S. Co., 6 Cir., 165 F.2d 368. A clause in the agreement declared that when a vessel was towed stern first by one tug the service would be under the control of the master of the vessel and the tug would not be liable for any damages sustained by a collision of a tow with any other craft or object. The exemption of the tug was not given effect in these cases because the master of the tug acted upon his own initiative and did not in fact place his vessel under the directions of the master of the ship. Nevertheless it was held, in accord with Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311, that had the master of the tug acted as contemplated in the contract, no liability on the part of the tug would have arisen because in such event the master and crew of the tug would have became pro tempore servants of the tow. The above decisions were concerned only with the effect of the towing contract as between the parties thereto, and the clause was enforced, when its conditions were met, by relieving the tug owner and tug from liability for damages for injury to the tow. The effect of the contract upon the rights of third parties to recover damages from either or both of the contracting parties was not involved. Such a right is asserted in the instant case in the claim of the owner of the Winding Gulf to recover from the owner of the tow the damages caused by the negligent operation of the tug. The tug is not before us since she refused to submit to"
},
{
"docid": "7785966",
"title": "",
"text": "of that vessel and that the tug owners should not be liable for his negligent pilotage.\" Id. at 92-93, 75 S.Ct. at 633. (Emphasis added.) * * * * * * “It is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another company’s vessel on that vessel’s own power. That was the Sun Oil case. It is quite a different thing, however, to permit a towing company to exempt itself by contract from all liability for its own employees’ negligent towage of a vessel. Thus, holding the pilotage contract valid in the Sun Oil case in no way conflicts with the rule against permitting towers by contract wholly to escape liability for their own negligent towing.” Id. at 94, 75 S.Ct. at 634. Had the ship owner wished protection against the type of damage here suffered it might well have secured it at an appropriate rate. See Pannell v. Unit ed States Lines Co., 263 F.2d 497 (2d Cir.), cert. denied, 359 U.S. 1013, 79 S.Ct. 1151, 3 L.Ed.2d 1037 (1959). Having accepted towing services under an agreement providing for certain limitations of liability, libelant is not entitled to have this court rewrite the contract and impose liabilities not bargained for. In the light of the finding that “Both the tug McAllister and the Hellenic Spirit promptly and properly carried out every order of the pilot Fitzgerald and were not negligent in any respect,” there was no basis for a decree in rem against the tug McAllister. Interlocutory decree reversed and libel (No. 28254, Ad. 199-132) dismissed."
}
]
|
180357 | claim, a [certificate of appeal-ability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. In Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), the Supreme Court reaffirmed the standards for the granting of a certificate of appeala-bility that had been established in Slack. Initially, this Court must decide whether the version of 28 U.S.C. § 2254(d), added by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, is applicable herein. In REDACTED the Supreme Court held that the amended version of § 2254(d) did not apply to a request for habeas corpus which was already pending on the day that the AEDPA became effective, April 24, 1996. Herein, Franklin’s request for such relief was pending on that date, given that he filed his Petition for a Writ of Habeas Corpus (Doc. # 5) on November 14, 1995. Consequently, the version of § 2254(d) added with the AEDPA is inapplicable, and this Court applies the pre-amendment version of § 2254(d). In Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946, 120 S.Ct. 369, 145 L.Ed.2d 284 (1999), the Sixth Circuit reiterated that under the pre-AEDPA | [
{
"docid": "22718552",
"title": "",
"text": "Justice Souter delivered the opinion of the Court. The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214, signed into law on April 24, 1996, enacted the present 28 U. S. C. § 2254(d) (1994 ed., Supp. II). The issue in this case is whether that new section of the statute dealing with petitions for habeas corpus governs applications in noncapital cases that were already pending when the Act was passed. We hold that it does not. W Wisconsin tried Aaron Lindh on multiple charges of murder and attempted murder. In response to his insanity defense, the State called a psychiatrist who had spoken with Lindh immediately after the killings but had later, and before Lindh’s trial, come under criminal investigation by the State for sexual exploitation of some of his patients. Although, at trial, Lindh tried to ask the psychiatrist about that investigation, hoping to suggest the witness’s interest in currying favor with the State, the trial court barred the questioning. Lindh was convicted. On direct appeal, Lindh claimed a violation of the Confrontation Clause of the National Constitution, but despite the denial of relief, Lindh sought neither review in this Court nor state collateral review. Instead, on July 9,1992, he filed a habeas corpus application in the United States District Court, in which he again argued his Confrontation Clause claim. When relief was denied in October 1995, Lindh promptly appealed to the Seventh Circuit. Shortly after oral argument there, however, the federal habeas statute was amended, and the Seventh Circuit ordered Lindh’s case be reheard en bane to see whether the new statute applied to Lindh and, if so, how his case should be treated. The Court of Appeals held that the Act’s amendments to chapter 153 of Title 28 generally did apply to cases pending on the date of enactment. 96 F. 3d 856, 863 (1996). Since the court did not read the statute as itself answering the questions whether or how the newly amended version of § 2254(d) would apply to pending applications like Lindh’s, id., at 861-863, it turned to this Court’s recent"
}
]
| [
{
"docid": "8491820",
"title": "",
"text": "court concluded that the last two issues were time-barred and that the first issue lacked merit because the case Davis claimed created a new standard, Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), was inapposite. The court thus denied habeas relief and denied a COA. II. Analysis A state prisoner needs a COA to appeal a denial of federal habeas relief. Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To demonstrate an entitlement to a COA, the prisoner must show that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Id. at 336, 123 S.Ct. 1029 (internal quotation marks omitted). Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies here, we keep in mind that when a state court previously adjudicated the merits of a claim, a federal court may grant habeas relief only if that state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). In other words, we incorporate “AEDPA’s deferential treatment of state court decisions ... into our consideration of a habeas petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.2004). As mentioned above, the district court rejected Davis’s last two grounds of error as time-barred. Davis waived any potential challenge to that conclusion by failing to address it in his opening brief on appeal. Petrella v. Brownback, 787 F.3d 1242, 1266 n. 10 (10th Cir.2015). Even barring waiver, there could be no debate on the point. Because Davis’s conviction became final before AEDPA’s enactment, the deadline for him to file his habeas petition was April 24, 1997, barring any exceptions, see Fisher v. Gibson, 262 F.3d 1135, 1142 (10th"
},
{
"docid": "13109965",
"title": "",
"text": "Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Likewise, when the district court has rejected a claim on a procedural ground, “the petitioner must also demonstrate that ‘jurists of reason would find it debatable whether the district court was correct in the procedural ruling.’ ” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir.2003) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). The Supreme Court counseled that “a COA ruling is not the occasion for a ruling on the merit of petitioner’s claim[.]” Id. at 331, 123 S.Ct. 1029. Instead, this court should engage in an “overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. Ultimately, “[t]o prevail on a petition for writ of habeas corpus, a petitioner must demonstrate that the state"
},
{
"docid": "23197595",
"title": "",
"text": "and the State’s summary-judgment motion was denied as moot. See Foster v. Dretke, No. SA-02-CA-301-RF, 2005 U.S. Dist. LEXIS 13862 (S.D. Tex. 3 Mar. 2005). Each side appealed. To do so, Foster requested a COA from our court on two claims. Foster, 2006 WL 616980, addresses the denial of that request. II. Review of this 28 U.S.C. § 2254 habeas proceeding is subject to the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See, e.g., Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Before addressing the conditional habeas relief granted by the district court, we consider the belated COA request for a stand-alone actual-innocence claim. A. Under AEDPA, Foster may not appeal the denial of habeas relief unless he obtains a COA from either the district, or this, court. 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b)(1); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under Federal Rule of Appellate Procedure 22(b)(1), the district court must first decide whether to grant a COA before one can be requested here. As noted, the district court denied a COA for the claim Foster seeks to appeal here. Obtaining a COA requires “a substantial showing of the denial of a constitutional right”. 28 U.S.C. § 2253(c)(2); e.g., Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack, 529 U.S. at 483, 120 S.Ct. 1595. For that requisite showing, an applicant usually must demonstrate “reasonable jurists could debate whether (or, for that matter, agree that) the [federal-habeas] petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further’ ”. Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (quoting Slack, 529 U.S. at 484, 120 S.Ct. 1595). Where, as here, the district court’s habeas denial includes a procedural ruling, as opposed to one on the underlying constitutional claim, the showing is expanded. See Hall v. Cain, 216 F.3d 518, 521 (5th Cir.2000). In that situation, the applicant must show"
},
{
"docid": "14409112",
"title": "",
"text": "bicycle and rode toward Caruthers’ car. Caruthers drove into Cotton, knocking Cotton off his bike. Cotton and Watson then escaped. Cotton was first tried for the murder of Epstein on March 17,1997. Jury deadlock caused a mistrial. At a second trial in November 1997, a jury convicted Cotton of capital murder. Cotton was sentenced to death. On direct appeal, the Texas Court of Criminal Appeals upheld Cotton’s conviction and sentence. Cotton v. State, No. 72, 964 (Tex.Crim.App. June 30, 1999) (unpublished). The Supreme Court denied Cotton’s petition for writ of certiorari. Cotton v. Texas, 530 U.S. 1277, 120 S.Ct. 2747, 147 L.Ed.2d 1010 (2000). Before the Supreme Court’s denial of his petition, Cotton filed a state application for habeas corpus. The trial judge entered findings of fact and conclusions of law, which were adopted by the Court of Criminal Appeals in denying habeas relief. Ex parte Cotton, No. 49,499-01 (Tex.Crim. App. June 7, 2000)(unpublished). On June 29, 2001, Cotton filed a petition for a writ of habeas corpus in federal district court. DISCUSSION Cotton’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001). Under AEDPA, Cotton must obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[U]ntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). To obtain a COA, Cotton must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 123 S.Ct. at 1039; Slack, 529 U.S. at 483, 120 S.Ct. 1595. To make such a showing, he must demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were"
},
{
"docid": "16435187",
"title": "",
"text": "post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). The question of whether a COA should issue is a threshold inquiry that “requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El, 123 S.Ct. at 1039. A full consideration of the merits is not required, nor permitted, by § 2253(c). Id. The fact that a COA should issue does not mean that the petitioner will be entitled to habe-as relief because the “question is the de-batability of the underlying constitutional claim, not the resolution of that debate.” Id. at 1042. Under pre-AEDPA standards of review, this court will review the legal conclusions of the district court de novo and the state court’s findings of fact for clear error. See Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002) (en banc). This court must accord a presumption of correctness to all findings of fact if they are supported by the record. Id.; see 28 U.S.C. § 2254(d)"
},
{
"docid": "21858254",
"title": "",
"text": "a memorandum and order and entered a final judgment, denying Martinez’s petition for a writ of habeas corpus, and denying, sua sponte, a COA. On December 19, 2003, Martinez filed a Request for the Issuance of a Certificate of Appealability with this court, maintaining that he was deprived of his constitutional right to effective assistance of counsel by his counsel’s failure to: (1) conduct an adequate investigation into his mental health background; (2) introduce evidence of neurological impairment and a prior adjudication of not guilty by reason of insanity as a mitigating factor and assert an insanity defense during the guilt/innocence phase of his trial; and (3) introduce evidence of his neurological impairment as a mitigating factor during the punishment phase of his trial. On December 28, 2004, we invited additional briefing on the latter two issues. II. STANDARD FOR GRANTING A COA Martinez filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism & Effective Death Penalty Act (“AEDPA”), April 24, 1996. Therefore, the petition is subject to the procedures imposed by AEDPA and post-AEDPA precedent. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). Under AEDPA, Martinez must obtain a COA before an appeal can be taken to this court. 28 U.S.C. § 2253(c)(2). This court may grant a COA only upon finding that Martinez has made a substantial showing of denial of a constitutional right. Id.; Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1603, 146 L.Ed.2d 542 (2000). To satisfy this standard, Martinez must demonstrate that reasonable jurists could find the district court’s resolution of his constitutional claims debatable or that reasonable jurists could conclude that the issues presented are adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). “[A] COA ruling is not the occasion for a ruling on the merit of petitioner’s elaim[.]” Id. at 331, 123 S.Ct. at 1036. Instead, this court must engage in a narrow threshold “overview of the claims in the"
},
{
"docid": "1574941",
"title": "",
"text": "Penalty Act (AEDPA), Mr. May had until April 24, 1997 to file a federal habeas petition. 28 U.S.C. § 2244(d)(1); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.2001) (holding that when a conviction became final before AEDPA’s effective date of April 24, 1996, a petitioner has one year after AEDPA’s enactment to file a § 2254 petition). Mr. May filed his federal habeas petition on November 15, 2002, long after the AEDPA limitations period had expired. The district court held that Mr. May’s federal habeas petition was time barred and that equitable tolling was not warranted. Accordingly, the district court dismissed the habeas petition and denied a COA. Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA can issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of -his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at 1034, 123 S.Ct. 1029. After careful review of the record, we conclude the requirements for issuance of a COA have not been met. The one-year period of limitation for filing a federal habeas petition is tolled or suspended during the pendency of a state application for post-conviction relief properly filed during the limitations period. § 2244(d)(2). As established above, for purposes of § 2244(d)(1)(A), Mr. May’s conviction became final on April 8, 1996. The district court correctly determined that the limitations period should not be tolled during the pendency of Mr. May’s various motions for transcripts and petitions for writs of mandamus relating to those motions. See Rec. vol. I, doc. 10 at 4-5 (Dist. Ct. Order, filed Mar. 6, 2003) (citing Osborne v. Boone, No. 99-7015, 176 F.3d 489, 1999 WL 203523, at *1 (10th Cir. April 12, 1999) (unpublished disposition) (holding that “attempts to obtain trial records and transcripts at public expense are"
},
{
"docid": "18025546",
"title": "",
"text": "sentence. Accordingly, the trial court sentenced Trottie to death. The Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence. Trottie v. State, No. 71,693 (Tex.Crim.App. Sept. 20, 1995). Trottie filed a petition for writ of habeas corpus in the state court in 1997. In 2008, the trial court submitted findings of fact and conclusions of law recommending a denial of habeas relief, which the Texas Court of Criminal Appeals adopted in 2009. Ex Parte Trottie, No. 70,302-01 (Tex.Crim.App. Feb. 11, 2009). Trottie then sought federal habeas relief, which the district court denied in 2011. See Trottie, 2011 WL 4591975, at *1, 20. Trottie now seeks a COA. STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Trottie’s habeas petition. Under AEDPA, a state court prisoner must obtain a certificate of appealability (“COA”) before he can appeal a federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). A COA is warranted upon a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). The issue is “the debatability of the underlying constitutional claim, not the resolution of that debate.” Miller-El, 537 U.S. at 342, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336,123 S.Ct. 1029. In cases involving the death penalty, “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citation omitted). We evaluate the debatability of Trottie’s constitutional claims under AED-PA’s highly deferential standard, which “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citations"
},
{
"docid": "13109964",
"title": "",
"text": "records. The defense offered five witnesses, including Bagwell’s ex-wife and former parole officer, who each testified that Bag-well should receive a sentence of life imprisonment rather than the death penalty. Bagwell did not testify during the penalty phase. After a four-hour deliberation, the jury sentenced Bagwell to death. Bagwell appealed both his conviction and sentence of death to the Texas Court of Criminal Appeals. Bagwell v. State, No. 72,699 (Tex.Crim.App. March 31, 1999). The Court of Criminal Appeals affirmed Bagwell’s conviction in all respects. Bag-well then filed a state habeas application in the trial court. Based on the trial court’s findings of facts and conclusions of law, and its own review, the Court of Criminal Appeals denied habeas relief. Ex Parte Bagwell, No. 42,341-01 (Tex.Crim.App. September 29, 1999) (unpublished). Bag-well then filed a petition for writ of habeas corpus in the federal district court. The district court rejected Bagwell’s seventeen assignments of error and declined to grant Bagwell’s request for a COA. Bagwell v. Cockrell, No. SA-99-1133-OG, 2003 WL 22723006 (W.D.Tex. August 19, 2003). Thereafter, Bagwell appealed the denial of the COA on two of his habeas claims to this court. II. STANDARD OF REVIEW Bagwell’s § 2254 habeas petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001). AEDPA requires Bagwell obtain a COA before he can appeal the district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1) (2000). Hence, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA will issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. More specifically, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,"
},
{
"docid": "16310809",
"title": "",
"text": "doubt existed regarding Mackey’s competency was entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(d), and it concluded that Mackey had failed to provide sufficient evidence to overcome this presumption. In its order denying Mackey’s habeas petition, the district court issued a certificate of probable cause to appeal pursuant to the former 28 U.S.C. § 2253. The issuance of a certificate of probable cause was consistent with this court’s view that the amendments to 28 U.S.C. § 2253 imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) were inapplicable to habeas petitions filed prior to the effective date of that Act, even if the appeals were initiated after that date. See, e.g., Caldwell v. Russell, 181 F.3d 731, 735 & n. 3 (6th Cir.1999) (explaining that because the defendant instituted his § 2254 petition before April 24, 1996, the pre-AEDPA version of § 2253 controlled his right to appeal); Arredondo v. United States, 120 F.3d 639, 640 (6th Cir.1997) (“By amendment of 28 U.S.C. § 2253, Chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996 imposed a requirement that § 2255 petitioners obtain certificates of appealability in order to appeal district court decisions denying relief. In Lindh v. Murphy, however, the Supreme Court held that Chapter 153 cannot be applied retroactively to cases pending on the enactment date of the statute, April 24,1996.” (citation omitted)). This Term, however, the Supreme Court held this view to be incorrect. In Slack v. McDaniel, - U.S.-, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court held that “when a habeas corpus petitioner seeks to initiate an appeal of the dismissal of a habeas corpus petition after April 24, 1996 (the effective date of AEDPA), the right to appeal is governed by the certificate of appealability (COA) requirements now found at 28 U.S.C. § 2253(c).” Id. at 1600. Therefore, with respect to appeals initiated after the effective date of AEDPA in habeas proceedings commenced prior to that date, pre-AEDPA law governs the appellate court’s review of the trial court’s ruling while AEDPA’s requirement of"
},
{
"docid": "10692316",
"title": "",
"text": "527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the TCCA then denied habeas relief. After exhausting his state remedies, Petitioner filed a federal petition for writ of habeas corpus and renewed his Brady claim. The district court reviewed the record and recounted the evidence supporting the conviction. Applying the deferential habeas standard in AEDPA, the district court concluded that the petition for writ of habeas corpus should be denied. Dickson v. Dretke, 2:01-CV-0095, slip op. at 1-2 (N.D.Tex. Mar. 23, 2005). Out of an abundance of caution and based upon the admonition of the Supreme Court in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), we issued a certificate of appeala-bility (“COA”) to allow Petitioner the opportunity to fully brief the merits of his claim. Dickson v. Quartemnan, 453 F.3d 643 (5th Cir.2006); see Miller-El, 537 U.S. at 338, 123 S.Ct. 1029 (“Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.”); Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (stating that the court resolves doubts in petitioner’s favor in death penalty cases). II Under AEDPA, Petitioner is not entitled to federal habeas relief unless the state court’s adjudication of his Brady claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Section 2254(d)(1) applies to pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.2001). A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a"
},
{
"docid": "13985815",
"title": "",
"text": "and the Texas Court of Criminal Appeals so ordered. The federal district court denied Leal’s petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and sua sponte denied a COA. II To obtain a COA, Leal must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, he “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000)). In determining whether a COA should be granted, we remain cognizant of the standard of review imposed upon the district court by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). A district court may grant habeas relief only if it determines that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). The state court’s findings of fact are entitled to a presumption of correctness and the petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ill Leal"
},
{
"docid": "1574940",
"title": "",
"text": "HENRY, Circuit Judge. John May, a state prisoner appearing pro se, seeks a certificate of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny his request for a COA and dismiss the appeal. On December 4, 1994, Mr. May was convicted of first degree murder in Oklahoma state court and sentenced to life imprisonment without parole. His conviction was affirmed by the Oklahoma Court of Criminal Appeals on January 9, 1996, and on April 8, 1996, the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court expired, thus making his conviction final. As detailed in the district court’s order, Mr. May filed a series of motions between 1997 and 2002 requesting transcripts at public expense and mandamus relief regarding his motions for transcripts. All of these motions were denied, as were Mr. May’s various appeals. Mr. May subsequently filed his federal petition for a writ of habe-as corpus on November 15, 2002. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Mr. May had until April 24, 1997 to file a federal habeas petition. 28 U.S.C. § 2244(d)(1); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir.2001) (holding that when a conviction became final before AEDPA’s effective date of April 24, 1996, a petitioner has one year after AEDPA’s enactment to file a § 2254 petition). Mr. May filed his federal habeas petition on November 15, 2002, long after the AEDPA limitations period had expired. The district court held that Mr. May’s federal habeas petition was time barred and that equitable tolling was not warranted. Accordingly, the district court dismissed the habeas petition and denied a COA. Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). A COA can issue only “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of -his constitutional claims"
},
{
"docid": "18061434",
"title": "",
"text": "§ 2254 habeas corpus petition, however, the Antiterrorism and Effective Death Penalty Act of 1996 (\"AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, \"governs the conditions of [Jones’s] appeal, and so he was required to seek a COA to obtain appellate review of the dismissal of his habeas petition.” Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). We treat Jones's notice of appeal, filed on September 24, 2013, as an application for a COA. See Fed. R.App. P. 22(b); Slack, 529 U.S. at 483, 120 S.Ct. 1595. When the district court denies a habeas corpus petition on procedural grounds and fails to reach the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows \"that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Reviewing Jones's motion, we conclude that he has satisfied AEDPA's requirements for a COA by making “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and by showing that jurists of reason could debate whether the district court properly dismissed Jones’s Rule 60(b) motion as a disguised (and unauthorized) second or successive 28 U.S.C. § 2254 habeas corpus petition. We grant Jones a COA, though this of course is not the same as authorizing him to file a second or successive 28 U.S.C. § 2254 habeas corpus petition based on the standard in 28 U.S.C. § 2244(b). . An Arizona execution warrant expires 24 hours from the date it sets for the execution. Ariz. R.Crim. P. 31.17(c)(3). Jones’s warrant sets his execution for October 23, 2013, and therefore expires the next day. Because it would take far longer than that to reopen and adjudicate the claims Jones now wishes to pursue, the State would be forced to obtain a new warrant if Jones is allowed to proceed but then loses. Thus, the likely need to"
},
{
"docid": "3835519",
"title": "",
"text": "granted Respondent’s motion, dismissed Rowell’s petition, entered a final judgment, and denied Ro-well a COA on his claims. Rowell timely filed the instant application for COA. DISCUSSION Rowell filed his § 2254 petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, his petition is subject to the procedures imposed by AEDPA; Rowell’s right to appeal is governed by the COA requirements of § 2253(c). See Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under AEDPA, a petitioner must obtain a COA before an appeal can be taken to this Court. 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[Ujntil a COA has been issued federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”). When a habeas petitioner requests permission to seek appellate review of the dismissal of his petition, this Court limits its examination to a “threshold inquiry into the underlying merit of his claims.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029. A COA will be granted if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Meeting this standard requires a petitioner to demonstrate that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to- proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). At issue is the debatability of the underlying constitutional claim, but not the resolution of that debate. Id. at 342, 123 S.Ct. 1029. “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has"
},
{
"docid": "22739584",
"title": "",
"text": "Standard of Review Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a COA may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the necessary substantial showing, “a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)) (internal quotation marks omitted). Where, as here, the Petitioner’s federal habeas claims were adjudicated on the merits in state court proceedings, Congress has instructed that we may grant habeas relief only where the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court ...” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Some commentaries discussing the Supreme Court’s decision in Miller-El v. Cockrell have argued that the Court left open the question of whether the federal courts should incorporate § 2254’s strong deference for state court decisions — which govern our decisions on the merits of ha-beas claims — into our preliminary evaluation of a petitioner’s request for COA. See Supreme Court, 2002 Term-Leading Cases: Federal Jurisdiction and Procedure, 117 Harv. L.Rev. 380, 386-88 (2003). Under one of two possible interpretations, a habeas petitioner may obtain a COA if reasonable jurists could debate whether the petitioner’s constitutional rights had been violated. Under the other approach, COA may be granted only if reasonable jurists could debate whether the petitioner might be eligible for habeas relief — i.e., in a case governed by § 2254(d), whether the state court’s decision on the merits of the petitioner’s constitutional claim was unreasonable or ran contrary to clearly established federal law. Justice Scalia’s concurrence"
},
{
"docid": "1287411",
"title": "",
"text": "petition was denied by the Wyoming state courts. Finally, in 2008 Roderick filed a Petition for Writ of Review, which the Wyoming Supreme Court also denied. Roderick filed the instant § 2254 petition in federal district court in July 2008. The district court concluded the petition was time-barred and dismissed the case. See 28 U.S.C. § 2244(d). This appeal followed. II. Discussion Where a district court dismisses a § 2254 petition on procedural grounds, a petitioner seeking a COA must establish that reasonable jurists would find it debat able both whether the district court was correct in its procedural ruling, and whether the petition states a valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595; Fleming v. Evans, 481 F.3d 1249, 1254-56 (10th Cir.2007). If a procedural bar is present and the district court correctly invokes it to dispose of the case, “a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because reasonable jurists could not debate the propriety of the district court’s dismissal of this case as time-barred, we decline to issue a COA. The Anti-Terrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations on habeas petitions by state prisoners. § 2244(d)(1). Because AEDPA became effective on April 24, 1996 — after Roderick’s state conviction became final — Roderick had until April 24, 1997 to file a timely petition for a writ of habeas corpus. See Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir.2000) (holding the one-year limitations period began to run on April 24, 1996 for prisoners whose convictions became final before the effective date of AEDPA). Roderick admits that he filed his § 2254 petition after the AEDPA time limitation had expired. He asks us, however, to equitably toll the AEDPA limitation for three reasons, (1) excusable neglect, (2) his lack of knowledge of the legal process available to him or of AEDPA, and (3) his placement in facilities"
},
{
"docid": "14010034",
"title": "",
"text": "underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. 2254(d)(2). In addition, a state court’s findings of fact are entitled to a presumption of correctness unless the petitioner rebuts that presumption with “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Thus, when evaluating a COA petition, we con sider only whether the district court’s application of Antiterrorism and Effective Death Penalty Act (“AEDPA”) deference to the petitioner’s claim is debatable among jurists of reason. Miller-El, 537 U.S. at 341, 123 S.Ct. 1029. New constitutional rules of criminal procedure are generally not applied retroactively to cases that become final before a new rule is announced. Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). “Teague remains applicable after the passage of the AEDPA.” Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir.2003) (citing Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002)). Ill A Cardenas argues initially that the trial court improperly excused several potential jurors because they were categorically opposed to the death"
},
{
"docid": "16435186",
"title": "",
"text": "the old case number instead of initiating a new suit. No action was taken on this petition for several years. In July 2001, an order was issued under a new case number indicating that the amended petition would be treated as a new petition, filed in April 1995, and ordering the clerk of court to file a copy of the petition under the new case number. The State filed its response and moved for summary judgment. In September 2002, the federal district court denied habeas relief and refused to issue a COA. Kunkle now seeks a COA from this court. II. Kunkle filed the instant Section 2254 petition in April 1995, before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). As such, this court must apply pre-ADEPA law in reviewing the district court’s ruling. Slack v. McDaniel, 529 U.S. 473, 480, 120 S.Ct. 1595, 1602, 146 L.Ed.2d 542 (2000). However, where an appeal from a denial of a petition of habeas corpus is commenced after the effective date of the AEDPA, post-AEDPA law governs the right to appeal. Id. Kunkle filed a notice of appeal in the instant case on November 1, 2002. Therefore, the AEDPA amended version of 28 U.S.C. § 2253 controls Kunkle’s right to appeal. Before an appeal may be entertained, a prisoner who was denied habeas relief in the district court must first obtain a COA from a circuit judge. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). Until a COA has been issued, a federal appeals court lacks jurisdiction to rule on the merits of a habeas appeal. Miller-El, 123 S.Ct. at 1039. To obtain a COA, the petitioner must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, the petitioner must demonstrate “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack, 529 U.S. at 484, 120 S.Ct. 1595,"
},
{
"docid": "20665195",
"title": "",
"text": "[COA], an appeal may not be taken to the court of appeals ...” 28 U.S.C. § 2253(c)(1). The issuance of a COA requires a petitioner to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). This requires a petitioner to “show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and alteration omitted). In making this determination, we examine the district court’s application of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) to the petitioner’s claims and “ask whether that resolution was debatable amongst jurists of reason.” Id. This does not require a showing that the appeal will succeed or a “full consideration of the factual or legal bases adduced in support of the claims.” Id. at 336-37, 123 S.Ct. 1029. Instead, the debatability of AEDPA’s application to the underlying constitutional claims is a threshold analysis, determined by “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 336, 123 S.Ct. 1029. Under AEDPA, a federal court may not issue a writ of habeas corpus for a state conviction unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. 28 U.S.C. § 2254(d). Analyzing § (d)(1), a state court’s decision is contrary to clearly established federal law if: “(1) the state court ‘applies a rule that contradicts the governing law’ announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a"
}
]
|
241495 | 748, 756 (8th Cir.1992)). Implying bias, however, is limited to “extreme situations” in which “the relationship between a prospective juror and some aspect of the litigation ... [makes it] highly unlikely that the average person could remain impartial in his deliberations.” Id. (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988)). Examples of an “extreme situation” include when a “juror is a close relative of one of the participants in the trial or the criminal transaction.” Id. at 792-93 (quoting Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1981) (O’Connor, J., concurring)). We have relied on the examples from Justice O’Connor’s concurrence when rejecting a claim of implied juror bias. See id. at 793; REDACTED Corey Watson said he and Juror W are cousins and had attended a funeral together weeks earlier. Manuel cites United States v. Mitchell, 690 F.3d 137, 145 (3d Cir.2012), for the proposition that “consanguinity is the classic example of implied bias.” That may be so, but we think the familial relationship must resemble something closer than what we have in this case to imply bias. Indeed, the court in Mitchell likewise rejected “the most expansive formulations that categorically presume bias whenever a juror shares any degree of kinship with a party in a case.” Id. at 146. That court noted that a distant relative generally “is unlikely to harbor the sort of prejudice that interferes with the impartial discharge of | [
{
"docid": "21052234",
"title": "",
"text": "whose bias could be presumed). However, in a recent habeas case, we stated that bias could be established “by proof of specific facts which show such a close connection to the facts at trial that bias is presumed.” Fuller v. Bowersox, 202 F.3d 1053, 1056 (8th Cir.)(internal quotations omitted), cert. denied, - U.S. -, 121 S.Ct. 489, 148 L.Ed.2d 461 (2000). Here, relying on ha-beas cases, the district court held as a matter of law that implied or presumed bias could not entitle Tucker to a new trial. 36 F.Supp.2d at 1116. The habeas cases examine whether circumstances led to a violation of the petitioner’s constitutional right, not whether those circumstances would have supported a grant of a new trial. But without resolving whether or not presumed bias can support a grant of a new trial in our circuit, we observe that the idea of presumed bias is reserved for extreme cases, such as when a juror is a close relative of a party or victim in the case. See United States v. Greer, 223 F.3d 41, 53 (2d Cir.2000). In her concurrence in Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), Justice O’Connor listed extreme situations that would warrant a finding of implied bias: “Some examples might include a revelation that a juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Johnson is not related to the facts or parties of this case in a manner that approaches such an extreme situation. Therefore, the district court did not err in denying Tucker’s new trial motion. We must affirm the district court’s holding that Tucker failed to establish his right to a new trial based on juror misconduct at voir dire. II. Tucker also attacks the district court’s assessment that there was no evidence of improper outside influence over Johnson. We review a district court’s decision on whether to grant a"
}
]
| [
{
"docid": "11835462",
"title": "",
"text": "656, 664 (4th Cir.1988); see also Fields v. Brown, 503 F.3d 755, 768-69 (9th Cir.2007) (en banc). When determining whether bias should be presumed, courts often refer to Justice O’Connor’s concurring opinion in Phillips, 455 U.S. at 221-23, 102 S.Ct. 940 (O’Connor, J., concurring). See, e.g., United States v. Tucker, 243 F.3d 499, 509 (8th Cir.2001); Conaway v. Polk, 453 F.3d 567, 585-87 (4th Cir.2006); United States v. Frost, 125 F.3d 346, 379-80 (6th Cir.1997); Hunley v. Godinez, 975 F.2d 316, 318 (7th Cir.1992); Fields, 503 F.3d at 768 n. 6; Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir.1991). Though we interpreted Phillips as rejecting the doctrine of implied bias in Goeders, 59 F.3d at 75-76, Justice O’Connor viewed it differently in Phillips: After concurring in the Court’s opinion, Justice O’Connor wrote “separately to express [her] view that the opinion does not foreclose the use of ‘implied bias’ in appropriate circumstances.” Phillips, 455 U.S. at 221, 102 S.Ct. 940 (O’Connor, J., concurring). She believed that some “exceptional” or “extreme situations” cast such doubt on a juror’s impartiality that even if a state court found “ ‘no bias,’ the Sixth Amendment right to an impartial jury should not allow a verdict to stand,” and she provided examples: “a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Id. at 222 & 222 n. *, 102 S.Ct. 940; cf. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, Stevens, and O’Connor, JJ., concurring); id. at 558, 104 S.Ct. 845 (Brennan and Marshall, JJ., concurring in the judgment). We referred to the examples in Justice O’Connor’s concurrence when we rejected a claim of implied juror bias in a direct appeal. Tucker, 243 F.3d at 509. In Tucker, during a break in the trial of an Arkansas governor, one of the jurors married a former state prisoner whose request for clemency had"
},
{
"docid": "11835460",
"title": "",
"text": "Johnson, the habeas petitioner contended that his trial counsel was ineffective for failing to have several members of the jury stricken for cause; though we found that the petitioner was entitled to relief because two of the jurors were biased in fact, we added that “even without a showing of actual bias, prejudice may be implied in certain egregious situations.” Id. As support for the doctrine of implied bias in Johnson, id., we cited a concurring opinion in Phillips, 455 U.S. at 222, 102 S.Ct. 940 (O’Con-nor, J., concurring). (As we have said, we relied on Phillips to reject the doctrine of implied bias in Goeders, 59 F.3d at 76.) We again accepted the doctrine of implied bias in Fuller, 202 F.3d at 1056-58, though we concluded that the facts did not support the presumption of prejudice and thus denied the habeas petitioner’s claim that a biased juror deprived him of a fair trial. In Fuller, id., we cited but did not discuss the Supreme Court’s decisions in Phillips and in Wood, which states that the “bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as a matter of law,” Wood, 299 U.S. at 133, 57 S.Ct. 177. We need not resolve the apparent inconsistency in our cases, however, to decide Mr. Sanders’s claim. Nor do we have to decide whether AEDPA applies by determining whether the state court adjudicated the question of presumed bias “on the merits.” See 28 U.S.C.A. § 2254(d). For even if we ignore the strictures of AEDPA and assume, without deciding, that juror bias may sometimes be presumed as a matter of law, we conclude that the circumstances here cannot support such a presumption. In those circuits that recognize the principle of implied bias, resort to it has been limited “to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Person v. Miller, 854 F.2d"
},
{
"docid": "5212186",
"title": "",
"text": "at Nagold must also be reversed; (5) the jury instructions on the § 856(a)(1) counts constituted a constructive amendment to the indictment because they included more possible activities than “maintaining” the property; (6) his conviction for possession of crack cocaine with intent to distribute was based on insufficient evidence; and (7) the district court abused its discretion by converting the $11,375 in cash to cocaine base to determine the applicable base offense level. A. Implied Juror Bias “The doctrine of presumed or implied, as opposed to actual, bias provides that, in certain extreme or exceptional cases, courts should employ a conclusive presumption that a juror is biased.” Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir.2005) (internal quotation marks and citations omitted). “A finding of implied bias is appropriate only ‘where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.’ ” Id. at 326 (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988)). “These extreme cases occur when a juror has ‘a relationship in which the potential for substantial emotional involvement, adversely affecting impartiality, is inherent.’ ” United States v. Frost, 125 F.3d 346, 379 (6th Cir.1997) (quoting Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990)) (internal quotation marks omitted). Although the doctrine of implied bias existed prior to Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), Justice O’Connor’s concurrence in that case describes the potential application of the doctrine by providing examples of extreme or exceptional cases: “[Tjhat the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” 455 U.S. at 222, 102 S.Ct. 940 (O’Connor, J., concurring). As this court has noted, there is a question as to the continued viability of the implied-bias doctrine after Smith. See Johnson, 425 F.3d at 326. In general,"
},
{
"docid": "3541773",
"title": "",
"text": "to begin, the prosecution informed defense counsel that juror Curtis Tomplait’s daughter had been married to the victim’s grandson, who was deceased at the time of trial. Defense counsel then moved for a mistrial or, alternatively, to reopen voir dire and question Tomplait as to his relationship to the victim. The trial court denied both requests. Andrews argues that the trial court thus “forced him to present his case before a juror with an apparent bias against him, in violation of ... the Sixth, Eighth, and Fourteenth Amendments.” At bottom, Andrews’ contention is that we must, as a matter of law, impute bias to juror Tomplait. As an initial matter, we note that “[t]he Supreme Court has never explicitly adopted or rejected the doctrine of implied bias.” Tinsley, 895 F.2d at 527. Moreover, the Court has not looked favorably upon attempts to impute bias to jurors. E.g., Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (refusing to impute bias to a juror where the juror sought employment with the prosecutor’s office during trial); Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (attempted bribe of juror did not require a finding of implied bias). However, there are some extreme situations that would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. Smith, 455 U.S. at 222, 102 S.Ct. at 948 (O’Connor, J., concurring) (emphases added); see United States v. Scott, 854 F.2d 697, 699 (5th Cir.1988) (same). Based on the record before us, we do not believe that Tomplait’s presence on the jury deprived Andrews of his right to present his case to an impartial jury. First, when asked during individual voir dire whether he knew of “any reason [why he] could not be a fair and impartial juror,” Tomplait replied that he"
},
{
"docid": "5104531",
"title": "",
"text": "omitted). “The doctrine of presumed or implied, as opposed to actual, bias provides that, in certain ‘extreme’ or ‘exceptional’ cases, courts should employ a conclusive presumption that a juror is biased.” Johnson, 425 F.3d at 326 (quoting United States v. Frost, 125 F.3d 346, 379 (6th Cir.1997)). We may presume bias “only where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Id. (internál quotation marks and citation omitted). Examples of such a relationship are “that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring). 2. Cynthia Barth Treesh asserts that we may presume that Barth was biased against him based on her student-teacher relationship with Coulson, and that she was actually biased. First, as to implied bias, we have previously expressed doubt over the continued viability of the doctrine of implied bias after Smith. See Johnson, 425 F.3d at 326 (“Courts that have reviewed the Smith decision, including this circuit, have suggested that the majority’s treatment of the issue of implied juror bias calls into question the continued vitality of the doctrine.”). Nonetheless, even accepting its continued viability, there is no Supreme Court precedent recognizing implied bias from a mere student-teacher relationship. Although Coulson was the instructor for Barth’s research and writing course, Barth stated that she thought his “paralegal was there more than” he was. There is nothing in the record that indicates that Coulson’s and Barth’s relationship rose to the level of the sort of extreme or exceptional case where bias is conclusively presumed. Thus, the Ohio Supreme Court’s failure to find implied bias was not contrary to clearly established federal law. Additionally, the record does not establish actual bias. Barth and Coulson"
},
{
"docid": "21030148",
"title": "",
"text": "(4th Cir.2002). The inquiry into whether a trial’s fairness was affected essentially constitutes a third part, however, as it must be satisfied before the juror's bias may be proven. See id. at 313. In any event, we adhere to the uniform practice of referring to the McDonough test as having two parts. . We have consistently treated Justice O’Connor’s concurrence in Smith as the authoritative articulation of implied bias. See, e.g., Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988) (recognizing implied bias principle as limited to extreme situations where relationship between prospective juror and litigation such that \"it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances” (citing Smith, 455 U.S. at 222, 102 S.Ct. 940 (O'Connor, J., concurring))). . Since the Court’s 1982 decision in Smith, at least ten circuits have recognized the continuing viability of the implied bias principle. See United States v. Scott, 854 F.2d 697, 699 (5th Cir.1988) (presuming bias where juror failed to disclose that his brother worked in sheriff's office); Hunley v. Godinez, 975 F.2d 316, 320 (7th Cir.1992) (affirming finding of implied bias where jury was burglarized while sequestered during trial concerning similar burglary); Green v. White, 232 F.3d 671, 678 (9th Cir.2000) (recognizing \"implied bias” where juror lied about felony convictions); Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir.1991) (affirming finding of implied bias where juror was abused in similar manner as victim); Isaacs v. Kemp, 778 F.2d 1482, 1487 (11th Cir.1985) (presuming bias due to pervasive pretrial publicity); see also Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir.1992) (recognizing implied bias doctrine but declining to award relief under circum stances); United States v. Torres, 128 F.3d 38, 45-46 (2d Cir.1997) (same); United States v. Calabrese, 942 F.2d 218, 224 (3d Cir.1991) (same); Zerka v. Green, 49 F.3d 1181, 1186 n. 7 (6th Cir.1995) (same); Cannon v. Lockhart, 850 F.2d 437, 440-41 (8th Cir.1988) (same). To be sure, we suggested in Conner v. Polk that there might be \"some question\" after Smith whether implied bias remained a viable doctrine. See 407 F.3d"
},
{
"docid": "21030119",
"title": "",
"text": "U.S. 123, 133, 57 S.Ct. 177, 81 L.Ed. 78 (1936) (“All persons otherwise qualified for jury service are subject to examination as to actual bias.”). And close kinship between a juror and a participant in a criminal trial constitutes a classic form of juror partiality. As far back as the early 1930s, Justice Cardozo elairvoyantly predicted the factual scenario underlying the Juror Bias claim when, in writing for the Court, he utilized a hypothetical juror related to a litigant as the ultimate example of a partial juror: What was sought to be attained was the choice of an impartial arbiter. What happened was the intrusion of a partisan defender. If a kinsman of one of the litigants had gone into the jury room disguised, as the complaisant juror, the effect would have been no different. Clark v. United States, 289 U.S. 1, 11, 53 S.Ct. 465, 77 L.Ed. 993 (1933) (emphasis added) (affirming criminal contempt conviction for juror who lied on voir dire); see also Dyer v. Calderon, 151 F.3d 970, 983 (9th Cir.1998) (en banc) (“Just as we would presume bias if the brother of the prosecutor were on a jury, we presume bias where a juror lies in order to secure a seat on the jury.”). On the basis of Conaway’s allegations in MAR I, Juror Waddell’s familial relationship to Harrington was sufficiently close that Waddell’s bias would have been “implied” — that is, presumed as a matter of law. See, e.g., Wood, 299 U.S. at 133, 57 S.Ct. 177 (“The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as [a] matter of law.”); see also Jones v. Cooper, 311 F.3d 306, 313 (4th Cir.2002). Such a presumption is justified where a juror is “a close relative of one of the participants in the trial or the criminal transaction.” See Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring). If Juror Waddell had responded candidly on voir dire about his relationship to co-defendant Harrington, the doctrine"
},
{
"docid": "22875258",
"title": "",
"text": "impartial. Id. at 71-72. In Eubanks, a heroin conspiracy trial, one juror failed to disclose on voir dire that two of his sons were serving prison terms for heroin-related crimes. 591 F.2d at 516. We presumed that the juror was biased because of his sons’ involvement with heroin. Id. at 517. The question we must decide is whether this case presents an equally compelling situation. In other words, does this case present a relationship in which the “potential for substantial emotional involvement, adversely affecting impartiality,” is inherent? See Eubanks, 591 F.2d at 517; Allsup, 566 F.2d at 71. Or, as the Fourth Circuit has put it, is this one of “those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances”? Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988) (Miller), cert. denied, — U.S. -, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989). Prudence dictates that courts answering this question should hesitate before formulating categories of relationships which bar jurors from serving in certain types of trials. See United States v. Brown, 644 F.2d 101, 104-05 (2d Cir.), cert. denied, 454 U.S. 881, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). Only in “extreme” or “extraordinary” cases should bias be presumed. Phillips, 455 U.S. at 222, 223 n. *, 102 S.Ct. at 948, 949 n. * (O’Connor, J., concurring). Instead of formal categorization, the Supreme Court has emphasized the existence of safeguards against actual bias. See id. In most situations, voir dire, “the method we have relied on since the beginning,” should suffice to identify juror bias. Yount, 467 U.S. at 1038, 104 S.Ct. at 2892. In cases where a juror’s answer makes thorough voir dire impossible, a post-trial hearing should accomplish the same result. See McDonough, 464 U.S. at 556, 104 S.Ct. at 850; Phillips, 455 U.S. at 217-18, 102 S.Ct. at 946. Not only has the Supreme Court emphasized the actual bias analysis, but also important policy concerns counsel hesitation in implying bias. Initially,"
},
{
"docid": "23641856",
"title": "",
"text": "1218, 1222 (5th Cir.1994). Although actual bias is the more common ground for excusing jurors for cause, “[i]n extraordinary cases, courts may presume bias based upon the circumstances.” Dyer, 151 F.3d at 981; see also Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring). “Unlike the inquiry for actual bias, in which we examine the juror’s answers on voir dire for evidence that she was in fact partial, ‘the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.’ ” United States v. Cerrato-Reyes, 176 F.3d 1253, 1260—61 (10th Cir.1999) (emphasis added) (quoting Torres, 128 F.8d at 45). Accordingly, we have held that prejudice is to be presumed “‘where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.’ ” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990) (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988)). We have also stated that the relevant question “is whether ‘[the] case presents] a relationship in which the “potential for substantial emotional involvement, adversely affecting impartiality,” is inherent.’ ” United States v. Plache, 913 F.2d 1375, 1378 (9th Cir.1990) (quoting Tinsley, 895 F.2d at 527) (in turn, quoting United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979)). Applying this standard, we have found implied bias in cases where the juror in question has had some personal experience that is similar or identical to the fact pattern at issue in the trial or where the juror is aware of highly prejudicial information about the defendant. See Tinsley, 895 F.2d at 527-29 (cataloguing cases in which implied bias has been found). For example, in United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979), this court found implied bias where the sons of a juror in a heroin distribution case were themselves heroin users and had served lengthy prison sentences. Similarly, in Dyer, we found implied bias where the brother of"
},
{
"docid": "17811332",
"title": "",
"text": "at 556, 104 S.Ct. 845. As we have heretofore recognized, the Supreme Court, in spelling out the McDonough test, did not “ ‘foreclose the normal avenue of relief available to a party who is asserting that he did not have the benefit of an impartial jury.’ ” Fitzgerald v. Greene, 150 F.3d 357, 363 (4th Cir.1998) (quoting McDonough, 464 U.S. at 556, 104 S.Ct. 845 (Blackmun, J., concurring)). After McDonough, “ ‘it remains within a trial court’s option, in determining whether a jury was biased, to order a post-trial hearing at which the movant has the opportunity to demonstrate actual bias or, in exceptional circumstances, that the facts are such that bias is to be inferred.’ ” Id. (quoting McDonough, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, J., concurring)). The doctrine of implied bias is a principle “limited in application to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988). Examples of such situations include revelations “ ‘that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.’ ” Fitzgerald, 150 F.3d at 365 (quoting Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring)). Fulks first contends that he is entitled to relief under McDonough. As discussed above, the district court concluded that Fulks failed to satisfy the second part of the McDonough test (that a correct response would have provided a valid basis for a challenge for cause) because the court would not have excused Allison for cause even if she had fully answered Question 42. Given this explicit conclusion, Fulks’s McDonough claim necessarily fails unless the court would have committed reversible error — that is, abused its discretion — in failing to dismiss Allison for cause. See United States v. Turner,"
},
{
"docid": "11835461",
"title": "",
"text": "the “bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as a matter of law,” Wood, 299 U.S. at 133, 57 S.Ct. 177. We need not resolve the apparent inconsistency in our cases, however, to decide Mr. Sanders’s claim. Nor do we have to decide whether AEDPA applies by determining whether the state court adjudicated the question of presumed bias “on the merits.” See 28 U.S.C.A. § 2254(d). For even if we ignore the strictures of AEDPA and assume, without deciding, that juror bias may sometimes be presumed as a matter of law, we conclude that the circumstances here cannot support such a presumption. In those circuits that recognize the principle of implied bias, resort to it has been limited “to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988); see also Fields v. Brown, 503 F.3d 755, 768-69 (9th Cir.2007) (en banc). When determining whether bias should be presumed, courts often refer to Justice O’Connor’s concurring opinion in Phillips, 455 U.S. at 221-23, 102 S.Ct. 940 (O’Connor, J., concurring). See, e.g., United States v. Tucker, 243 F.3d 499, 509 (8th Cir.2001); Conaway v. Polk, 453 F.3d 567, 585-87 (4th Cir.2006); United States v. Frost, 125 F.3d 346, 379-80 (6th Cir.1997); Hunley v. Godinez, 975 F.2d 316, 318 (7th Cir.1992); Fields, 503 F.3d at 768 n. 6; Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir.1991). Though we interpreted Phillips as rejecting the doctrine of implied bias in Goeders, 59 F.3d at 75-76, Justice O’Connor viewed it differently in Phillips: After concurring in the Court’s opinion, Justice O’Connor wrote “separately to express [her] view that the opinion does not foreclose the use of ‘implied bias’ in appropriate circumstances.” Phillips, 455 U.S. at 221, 102 S.Ct. 940 (O’Connor, J., concurring). She believed that some “exceptional” or “extreme situations” cast such doubt on"
},
{
"docid": "5104530",
"title": "",
"text": "long as neither the reasoning nor the result of the state-court decision contradicts [federal law]”). To establish prejudice, Treesh “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Strickland defined “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Id. To show prejudice arising out of trial counsel’s failure to challenge a juror, however, Treesh must show that the juror was biased against him. Johnson v. Luoma, 425 F.3d 318, 328 (6th Cir.2005). If a biased juror was impaneled, “prejudice under Strickland is presumed, and a new trial is required.” Hughes v. United States, 258 F.3d 453, 463 (6th Cir.2001). Bias may be actual or implied. See Johnson, 425 F.3d at 326. “Actual bias is ‘bias in fact’ — the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” Hughes, 258 F.3d at 463 (citation and internal quotation marks omitted). “The doctrine of presumed or implied, as opposed to actual, bias provides that, in certain ‘extreme’ or ‘exceptional’ cases, courts should employ a conclusive presumption that a juror is biased.” Johnson, 425 F.3d at 326 (quoting United States v. Frost, 125 F.3d 346, 379 (6th Cir.1997)). We may presume bias “only where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Id. (internál quotation marks and citation omitted). Examples of such a relationship are “that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring). 2. Cynthia Barth Treesh asserts that we may presume that Barth was biased against him based"
},
{
"docid": "23641855",
"title": "",
"text": "(9th Cir.1995). In contrast, implied bias presents a mixed question of law and fact which is reviewable de novo. Dyer, 151 F.3d at 979. In essence, “[a]ctual bias is ‘bias in fact’ — the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” United States v. Torres, 128 F.3d 38, 43 (2nd Cir.1997). Accordingly, courts have found actual bias where, based upon personal experience, a potential juror stated he could not be impartial when evaluating a drug dealer’s testimony, Torres, 128 F.3d at 44, where a juror in a case involving embezzlement from a labor union emphasized his negative experiences with unions and responded equivocally when asked if he could render a fair and impartial verdict despite those views, United States v. Nell, 526 F.2d 1223, 1228-29 (5th Cir.1976), and where a juror in a drug distribution case admitted to a conviction for marijuana possession, but stated that he believed it to have been the product of entrapment, United States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir.1994). Although actual bias is the more common ground for excusing jurors for cause, “[i]n extraordinary cases, courts may presume bias based upon the circumstances.” Dyer, 151 F.3d at 981; see also Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring). “Unlike the inquiry for actual bias, in which we examine the juror’s answers on voir dire for evidence that she was in fact partial, ‘the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.’ ” United States v. Cerrato-Reyes, 176 F.3d 1253, 1260—61 (10th Cir.1999) (emphasis added) (quoting Torres, 128 F.8d at 45). Accordingly, we have held that prejudice is to be presumed “‘where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.’ ” Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990) (quoting Person v. Miller, 854 F.2d"
},
{
"docid": "22177570",
"title": "",
"text": "she could lobby for a conviction and death sentence. Free-land herself was a victim of many crimes, and she may have wanted to use her jury service to send a message of deterrence. On the other hand, the fact that many of her relatives had been arrested suggests she could have harbored some empathy for criminal defendants. However, we need not resolve the actual bias question, which would first require factual findings by the district court, because the implied bias issue is dispositive here. Thus, we need not speculate further about what motivated Freeland to lie. In extraordinary cases, courts may presume bias based on the -circumstances. See McDonough, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, Stevens and O’Connor, JJ., concurring) (accepting doctrine of implied bias in exceptional circumstances); id. at 558, 104 S.Ct. 845 (Brennan and Marshall, JJ., concurring in the judgment) (same); Zerka v. Green, 49 F.3d 1181, 1186 n. 7 (6th Cir.1995); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir.1992); Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990); Cannon v. Lockhart, 850 F.2d 437, 440 (8th Cir.1988); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979); United States v. Allsup, 566 F.2d 68, 71-72 (9th Cir.1977). What kind of circumstances give rise to a finding of implied bias? In Smith v. Phillips, Justice O’Connor gave some examples of situations where bias may be presumed: “a revelation that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” 455 U.S. at 222, 102 S.Ct. 940 (concurring opinion). Of course, a juror could be a witness or even a victim of the crime, perhaps a relative of one of the lawyers or the judge, and still be perfectly fair and objective. Yet we would be quite troubled if one of the jurors turned out to be the prosecutor’s brother because it is highly unlikely that an individual will remain impartial and objective when a blood relative has a stake in the outcome. Even"
},
{
"docid": "12180223",
"title": "",
"text": "United States v. Graves, 5 F.3d 1546, 1554 (5th Cir.1993)). Appellants must clear a high hurdle to obtain reversal of a district court’s decision regarding the dismissal of a juror for cause. The courts presume that a prospective juror is impartial, and a party seeking to strike a venire member for cause must show that the prospective juror is unable to lay aside his or her impressions or opinions and render a verdict based on the evidence presented in court. Essentially, to fail this standard, a juror must profess his inability to be impartial and resist any attempt to rehabilitate his position. Moran v. Clarke, 443 F.3d 646, 650 (8th Cir.2006) (citations omitted). “[T]he idea of presumed bias is reserved for extreme cases, such as when a juror is a close relative of a party or victim in the case.” United States v. Tucker, 243 F.3d 499, 509 (8th Cir.2001) (discussing presumed bias in the context of a criminal prosecution). “[E]xtreme situations that would warrant a finding of implied bias ... ‘include a revelation that a juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.”’ Id. (quoting Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (J. O’Connor concurring)). The factual basis for Edwin’s claim of implied or presumptive juror bias falls well short of the showing necessary to support such a claim. Each juror pledged to be fair and impartial, and neither the long-past professional relationship with Brown Clinic or the relatively distant familial connections leads us to conclude the jurors were so closely associated with the defendants they could not be impartial. Accordingly, there was no abuse of discretion in the district court’s decision to deny the challenges for cause. B Edwin next argues the district court erred in denying his motion to exclude defendants’ medical expert, Dr. Paul Severson. He contends the expert was not qualified under Kumho Tire"
},
{
"docid": "21030147",
"title": "",
"text": "appeals is not 'required' to raise the issue of procedural default sua sponte.’’)', Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir.1999) (observing that courts should balance comity and efficiency with petitioner’s \"substantial interest in justice” in deciding whether to raise procedural default sua sponte). In any event, the delay would not constitute a procedural default, as \"the last state court” to which Conaway presented the Juror Bias claim (the MAR Court) \"did not clearly and expressly rely on” — or indeed even reference. — the delay. See Coleman, 501 U.S. at 735, 111 S.Ct. 2546. Moreover, Conaway has not asserted here that the delay implicates a claim of constitutional ineffective assistance by his counsel. . Although McDonough was itself a federal civil proceeding, we have expressly recognized its applicability to Sixth Amendment claims in federal habeas corpus proceedings instituted by state prisoners. See Jones v. Cooper, 311 F.3d 306, 310 (4th Cir.2002). . The McDonough test for juror bias is generally characterized as having two parts. See Jones v. Cooper, 311 F.3d 306, 310 (4th Cir.2002). The inquiry into whether a trial’s fairness was affected essentially constitutes a third part, however, as it must be satisfied before the juror's bias may be proven. See id. at 313. In any event, we adhere to the uniform practice of referring to the McDonough test as having two parts. . We have consistently treated Justice O’Connor’s concurrence in Smith as the authoritative articulation of implied bias. See, e.g., Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988) (recognizing implied bias principle as limited to extreme situations where relationship between prospective juror and litigation such that \"it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances” (citing Smith, 455 U.S. at 222, 102 S.Ct. 940 (O'Connor, J., concurring))). . Since the Court’s 1982 decision in Smith, at least ten circuits have recognized the continuing viability of the implied bias principle. See United States v. Scott, 854 F.2d 697, 699 (5th Cir.1988) (presuming bias where juror failed to disclose that his brother worked in sheriff's office); Hunley"
},
{
"docid": "5212187",
"title": "",
"text": "(4th Cir.1988)). “These extreme cases occur when a juror has ‘a relationship in which the potential for substantial emotional involvement, adversely affecting impartiality, is inherent.’ ” United States v. Frost, 125 F.3d 346, 379 (6th Cir.1997) (quoting Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990)) (internal quotation marks omitted). Although the doctrine of implied bias existed prior to Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), Justice O’Connor’s concurrence in that case describes the potential application of the doctrine by providing examples of extreme or exceptional cases: “[Tjhat the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” 455 U.S. at 222, 102 S.Ct. 940 (O’Connor, J., concurring). As this court has noted, there is a question as to the continued viability of the implied-bias doctrine after Smith. See Johnson, 425 F.3d at 326. In general, we review a district court’s decision to deny a challenge of a juror for cause for abuse of discretion. Cox v. Treadway, 75 F.3d 230, 239 (6th Cir.1996) (citing Marks v. Shell Oil Co., 895 F.2d 1128, 1129 (6th Cir.1990)). However, we have neither applied an abuse-of-discretion standard when reviewing for implied bias nor have we explicitly stated the proper standard of review. See Frost, 125 F.3d at 380 n. 15. Our sister circuits have applied different standards of review, considering it as “a question of law,” see Hunley v. Godinez, 975 F.2d 316, 318-19 (7th Cir.1992), “a mixed question of law and fact” reviewed de novo, see Fields v. Brown, 503 F.3d 755, 770 (9th Cir.2007), or “within the discretion of the trial court ... [and] accorded deference,” see United States v. Greer, 285 F.3d 158, 172 (2d Cir.2002). We find it unnecessary to decide whether the implied-bias doctrine remains viable or which standard of review is appropriate in this case. Assuming the viability of the doctrine, Russell cannot demonstrate implied bias under any"
},
{
"docid": "22474651",
"title": "",
"text": "argues that we must infer the existence of juror bias under these circumstances. The doctrine of presumed or implied, as opposed to actual, bias provides that, in' certain “extreme” or “exceptional” cases, courts should employ a conclusive presumption that a juror is biased. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556-57, 104 S.Ct. 845, 850-51, 78 L.Ed.2d 663 (1984)(Blackmun, J., concurring); id. at 558, 104 S.Ct. at 851 (Brennan, J., concurring); Smith v. Phillips, 455 U.S. 209, 221-24, 102 S.Ct. 940, 948-50, 71 L.Ed.2d 78 (1982)(O’Connor, J., concurring); id. at 231, 102 S.Ct. at 953 (Marshall, J., dissenting); Hunley v. Godinez, 975 F.2d 316, 318-20 (7th Cir.1992); Tinsley v. Borg, 895 F.2d 520, 526-29 (9th Cir.1990). These extreme cases occur when a juror has “a relationsMp in which the ‘potential for substantial emotional involvement, adversely affecting impartiality,’ is inherent[.]” Tinsley, 895 F.2d at 527 (quoting United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979)); see also Hunley, 975 F.2d at 319 (courts presume bias when a juror “is connected to the litigation at issue in such a way that [it] is highly unlikely that he or she could act impartially during deliberations”); Person v. Miller, 854 F.2d 656, 664 (4th Cir.1988)(holding the same). For example, one court has presumed bias when a juror sitting in a murder trial in which the defense was battered-wife syndrome was herself the victim of domestic abuse. See Burton v. Johnson, 948 F.2d 1150, 1159 (10th Cir.1991). Conversely, courts have refused to imply bias when a juror was personally acquainted with a witness, see Tinsley, 895 F.2d at 528-29 (collecting cases), or when the employment of a juror is closely related to the substance of the trial. See id. at 529 (no implied bias in rape prosecution when social worker juror had counselled rape victim for eighteen months and testified on her behalf). Further, the Sixth Circuit has declined to presume bias when a juror unintentionally failed to divulge during voir dire that she was related to a law enforcement officer, and another juror unintentionally failed to disclose the fact that"
},
{
"docid": "21547660",
"title": "",
"text": "we find no reversible error in the failure to do so. IV Miller next argues that the district court erred by not excusing for cause all prospective black jurors on the basis that they were beneficiaries of the court order Miller was charged with violating. Miller claims that the court's action forced him to use his peremptory challenges to remove a number of black jurors and that, even given his use of these challenges, he was unable to remove all black jurors. Challenges for cause are typically limited to situations where actual bias is shown. United States v. Loucas, 629 F.2d 989, 992 (4th Cir.1980). Even if bias may be implied in appropriate circumstances, Smith v. Phillips, 455 U.S. 209, 221-24, 102 S.Ct. 940, 948-50, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring), the doctrine of implied bias is limited in application to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. This case does not present one of those extreme situations. Compare Smith, 455 U.S. at 222, 102 S.Ct. at 948 (noting some circumstances in which a finding of implied bias might be justified). A criminal contempt proceeding is not simply the continuation of the private parties’ civil litigation. Rather, it is a proceeding between the public and the defendant, Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 445, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911), that seeks to vindicate the court’s authority. Young, — U.S. at -, 107 S.Ct. at 2133. In this case; potential black jurors, even as beneficiaries of the court order, have no greater interest in vindicating the court’s authority than any other member of the general public who might also be called to serve as a juror. There is simply no pecuniary or other unique benefit to be gained by the beneficiary class from a finding of contempt. Compare Young, — U.S. at -, 107 S.Ct. at 2136 (beneficiary stood to benefit from finding of"
},
{
"docid": "19593664",
"title": "",
"text": "the actual bias\" of the juror or (2) \"a per se rule of disqualification applies\" such that bias should be implied. United States v. Fulks , 454 F.3d 410, 432 (4th Cir. 2006). \"[T]he doctrine of implied bias is limited in application to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.\" Person v. Miller , 854 F.2d 656, 664 (4th Cir. 1988). Examples include employer/employee relationships, close relatives involved in the litigation, and a witness to (or individual somehow involved in) the criminal transaction. Fitzgerald v. Greene , 150 F.3d 357, 364 (4th Cir. 1998). In concluding that the state habeas court unreasonably applied McDonough , the majority relies on Conaway v. Polk , 453 F.3d 567 (4th Cir. 2006). The facts of Conaway , however, are far removed from those of this case. In Conaway , a juror was asked whether he knew any of the State's witnesses. The juror answered that he knew the local sheriff. The juror then responded in the negative when asked if he had any family or friends who had interacted with the District Attorney's office. In reality, the juror was a cousin of a co-defendant who happened to be the State's primary witness. We concluded that there were \"multiple questions posed to [the juror] that could candidly be answered only by acknowledging his kinsman,\" and that the state court was unreasonable to find otherwise. Id. at 585. Here, in contrast, after being informed that the case was about the murder of a police officer, Treakle answered that he had a close family member in law enforcement: a nephew serving as a police officer in the very jurisdiction the case was being tried. After affirming that his nephew's occupation would not affect his ability to be impartial, counsel moved on to other jurors without asking follow-up questions. There are not \"multiple questions\" that could \"candidly be answered\" only by acknowledging that his brother was a sheriff's"
}
]
|
215137 | "excess of an appropriation only if the law specifically states that an appropriation is made or that such a contract may be made.”). . Following the Senate report on S. 3681, Senator Hayden proposed that the bill be included as an amendment in the 1939 Interior Appropriation bill. See 83 Cong. Rec. 4709, 4727 (1938) (statement of Sen. Hayden). . The Code of Federal Regulations states that ""[c]ommingled water means irrigation water and nonproject water that use the same facilities.” 43 C.F.R. § 426.15(a). At times, the government equates commingling to the acreage limitation. See, e.g., Hr'gTr. 79:13-16. . “Excess lands” is a term of art in federal reclamation law, referring to lands in excess of 160 acres. See REDACTED United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1094 (9th Cir.1976). The Reclamation Act of 1902 had two purposes: to “encourage family farming on modest-sized parcels [160 acres];” and ""to increase agricultural output by subsidizing the irrigation of formerly arid and unproductive lands."" Barcellos & Wolfsen, Inc. v. Westlands Water Dist., 899 F.2d 814, 824 (9th Cir.1990). The 1902 Act was amended by the Omnibus Adjustment Act of 1926, Pub.L. No. 69-206, 44 Stat. 478 (codified at 43 U.S.C. § 423e), to “require[] water recipients who owned lands in excess of 160 acres to enter into a contract with [the Department of the] Interior in which they agreed to sell their excess lands" | [
{
"docid": "22877352",
"title": "",
"text": "Mr. Justice Clark delivered the opinion of the Court. These four cases present issues of basic importance to the federal reclamation laws. The Supreme Court of California has refused to confirm certain contracts entered into between two state irrigation districts and a water agency on the one hand and the United States on the other, finding the contracts invalid on several grounds. 47 Cal. 2d 597, 681, 695, 699, 306 P. 2d 824, 886, 894, 875. Specifically involved are parts of two statutory enactments: Section 5 of the Reclamation Act of 1902, pro viding generally that no right to the use of water shall be sold for lands in excess of 160 acres in single ownership, and § 9 of the Reclamation Project Act of 1939, providing, inter alia, for the repayment to the United States of funds expended on the construction of reclamation works, and authorizing the Secretary of the Interior to make contracts to furnish reclamation water at appropriate rates for irrigation. The opinion of the Supreme Court of California turned on an interpretation of a third provision, § 8 of the Reclamation Act of 1902. That section provides that the Act is not to be construed as interfering with state laws “relating to the control, appropriation, use, or distribution of water used in irrigation.” It further provides that in administering the Act the Secretary of the Interior “shall proceed in conformity with such laws . . . The California court held that this provision required the application of California law, and finding the provisions of the contracts contrary thereto, it refused confirmation. The water districts and agency involved, joined by the State of California, appealed, and we postponed the question of jurisdiction to the merits. 355 U. S. 803 (1957). We have concluded, for reasons hereinafter set forth, that we have no jurisdiction over the appeals. Treating the papers as petitions for certiorari, 28 U. S. C. § 2103, we grant certio-rari. On the merits, we deem the contracts controlled by federal law and valid as against the objections made. I. The Background of the Litigation. This"
}
]
| [
{
"docid": "2327907",
"title": "",
"text": "FLETCHER, Circuit Judge: Boston Ranch Company, Edwin R. O’Neill, and West Haven Farming Company appeal the district court’s denial of their motion to order the Department of Interior to sell water to them at a certain price pursuant to a contract incorporated into a consent judgment. They argue that § 224(h) of the Reclamation Reform Act of 1982, 43 U.S.C. § 390ww(h), if applied to them, impairs their contract rights and interferes with the consent judgment in violation of due process and the separation of powers required by the Constitution. We affirm the district court. FACTUAL AND STATUTORY BACKGROUND This appeal turns on the interpretation of contracts made and a judgment rendered under the aegis of the Reclamation Act of 1902, 32 Stat. 388, and subsequent statutes amending it. The purpose of the original 1902 Act was to encourage people to go West, not to engage in big-time speculation, see Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 297, 78 S.Ct. 1174, 1186, 2 L.Ed.2d 1313 (1958), but to grow crops on modest family farms in the country’s drier regions so that the nation’s agricultural bounty would increase. The Act promoted the farming of lands in the arid West by creating a system under which the federal government would provide funds to build water projects from which water would be sold at a subsidized price. The Interior Department was directed to charge water users prices that would recapture the cost of building the project exclusive of interest. 43 U.S.C. § 461. The original 1902 Act allowed this subsidized water to be sold only to resident farmers and only for parcels of land no larger than 160 acres. 43 U.S.C. § 431. But the strict restriction against larger farms inhibited Congress’ goal of increasing agricultural production. In 1926 Congress amended the Act to allow Interior to sell water for larger tracts, but only if the owner promised to divest himself of the lands in excess of 160 acres on terms to be worked out by Interior. 43 U.S.C. § 423e. The appellants are landowners. Each owns more than one thousand acres"
},
{
"docid": "1476527",
"title": "",
"text": "of the property. The primary benefit that the landowners receive from the federal reclamation program is the privilege of receiving subsidized water. Having to sell then-excess lands within a limited period of time at an artificially low appraised price is an intended burden. Id. at 824. These recordable contracts also have a provision, Article 13, that extends the ten-years period of ownership whenever “water or service from the Project may not be available to the land involved through no fault of the District or the Landowner.” This suit concerns three issues: (1) the payment rate for San Luis Unit water applicable to excess lands during extension periods, i.e., full-cost or subsidized (the 1963 Contract rate); and if the fund before the court contains any water service payments that should be refunded; (2) who is entitled to any drainage component payments; and (3) whether any declaratory relief is appropriate. A. 1902: Reclamation Act of1902. Any discussion of federal water in California begins in 1902: “The Reclamation Act of 1902 provided the framework for modern day reclamation law.” Martin J. Jackley, Reclamation Law and the Bell Fourche Irrigation District: A Desperate Fight for a Way of Life in Times of Change, 40 S.D. L. REV. 478, 479 (1995) (footnote omitted). “The final westward migration of the late 1800s resulted in an enormous demand by the settlers for irrigation systems.” Peterson v. United States Dep’t of Interior, 899 F.2d 799, 802 (9th Cir.1990) (citing Paul S. Taylor, The Excess Land Law: Execution of a Public Policy, 64 YALE L.J. 477, 481-85 (1955)). “Responding to the pressing demand for federal assistance in funding water reclamation projects, Congress passed the Reclamation Act of 1902.” Id. (citing 1902 Act). The 1902 Act had two purposes: “encourage family farming on modest-sized parcels [160 acres];” and “to increase agricultural output by subsidizing the irrigation of formerly arid and unproductive lands.” Barcellos, 899 F.2d at 824 (citing Ivanhoe Irrig. Dist., 357 U.S. at 275, 78 S.Ct. 1174; United States v. Tulare Lake Canal Co., 535 F.2d 1093 (9th Cir.1976)). “Congress adjusted the balance by amending the Act to authorize"
},
{
"docid": "1476526",
"title": "",
"text": "1963 Contract is impacted by additional considerations: First, Section (a) of the San Luis Act requires the Government to provide drainage service to Westlands. “Any water project that brings fresh water to an agricultural area must take the salty water remaining after the crops have beén irrigated away from the service area.” Firebaugh Canal, 203 F.3d at 571. Second, “[t]he 1963 Contract prohibits the District from furnishing Project water to an owner who wishes to use the water to irrigate his ‘excess lands,’ or lands in excess of 160 acres, unless the owner agrees in a separate, recordable contract with Interior to certain significant restraints on his rights to the excess lands.” Barcellos, 899 F.2d at 816 (footnote omitted). Between 1969 and 1974, each of the Third-Party Defendants (Boston Ranch Company, S. Stamoules & Co., South Boston Co., and Westhaven Farming Co. ) ex ecuted a recordable contract with the United States to divest themselves of then-excess lands. See id. These recordable contracts are identical in every aspect, except for the party’s name and description of the property. The primary benefit that the landowners receive from the federal reclamation program is the privilege of receiving subsidized water. Having to sell then-excess lands within a limited period of time at an artificially low appraised price is an intended burden. Id. at 824. These recordable contracts also have a provision, Article 13, that extends the ten-years period of ownership whenever “water or service from the Project may not be available to the land involved through no fault of the District or the Landowner.” This suit concerns three issues: (1) the payment rate for San Luis Unit water applicable to excess lands during extension periods, i.e., full-cost or subsidized (the 1963 Contract rate); and if the fund before the court contains any water service payments that should be refunded; (2) who is entitled to any drainage component payments; and (3) whether any declaratory relief is appropriate. A. 1902: Reclamation Act of1902. Any discussion of federal water in California begins in 1902: “The Reclamation Act of 1902 provided the framework for modern day reclamation"
},
{
"docid": "1476529",
"title": "",
"text": "Interior to allow larger operators to receive water in exchange for their promise to divest themselves of excess lands.” • Id. (citing 43 U.S.C. § 423e). Under the 1902 Act, there was very limited regulation of excess lands, because prior to the 1982 RRA, Interior did not regulate leasing of excess lands receiving subsidized water. See 32 Stat. 389 (1902) (making landowner eligible for federal project water if he owned less than 160 acres, but not limiting such water delivery to non-leased lands). The Omnibus Adjust ment Act of 1926, the first major amendment to the 1902 Act, partially rectified this problem by introducing the “recordable contract” idea, which required water recipients who owned lands in excess of 160 acres to enter into a contract with Interior in which they agreed to sell their excess lands within ten years at a price not reflecting the availability of project water. See id. at 483. B.1963: 1963 Contract “Westlands entered into a water service contract with the United States in 1963 under which the United States, through the Bureau of Reclamation, agreed to make available for Westlands’ purchase 900,000 acre-feet of water from the San Luis Unit of the Central Valley Project CCVP’).” Barcellos & Wolfsen, Inc. v. Westlands Water Dist., 849 F.Supp. 717, 720 (E.D.Cal.1993), aff'd, O’Neill v. United States, 50 F.3d 677 (9th Cir.1995). By this Contract, Interior agreed to provide CVP water to the District for 40 years. Two main provisions of the 1963 Contract are germane to this suit: (1) a specified volume of water provided at $8.00/acre-foot ($7.50/acre-foot for water service and $0.50/aere-foot for drainage service) in Article 6(a); and (2) before water could be delivered to “excess lands” (lands in excess of 160 acres), the owner must execute a “recordable contract” to sell those excess lands within ten (10) years at a price that does not consider the water rights (Article 23(a)), or Interior would do so through a power of attorney granted by the owner (Articles 24-25). C. 1976: D.C. District Court Injunction On August 9, 1976, the District of Columbia district court issued an"
},
{
"docid": "2327908",
"title": "",
"text": "in the country’s drier regions so that the nation’s agricultural bounty would increase. The Act promoted the farming of lands in the arid West by creating a system under which the federal government would provide funds to build water projects from which water would be sold at a subsidized price. The Interior Department was directed to charge water users prices that would recapture the cost of building the project exclusive of interest. 43 U.S.C. § 461. The original 1902 Act allowed this subsidized water to be sold only to resident farmers and only for parcels of land no larger than 160 acres. 43 U.S.C. § 431. But the strict restriction against larger farms inhibited Congress’ goal of increasing agricultural production. In 1926 Congress amended the Act to allow Interior to sell water for larger tracts, but only if the owner promised to divest himself of the lands in excess of 160 acres on terms to be worked out by Interior. 43 U.S.C. § 423e. The appellants are landowners. Each owns more than one thousand acres of farm land in California’s Central Valley. They buy water from the Westlands'Water District (the District). The District and the Department of Interior (Interior) entered into a contract in 1963 (the 1963 Contract), under which the District bought water at a subsidized rate of $8.00 per acre foot (including a $0.50 drainage service component) from a federal reclamation project (the Project) for resale under certain conditions to subscribers within the District. As subscribers, the appellants are beneficiaries of the 1963 Contract, even though they are not parties to it. The 1963 Contract prohibits the District from furnishing Project water to an owner who wishes to use the water to irrigate his “excess lands,” or lands in excess of 160 acres, unless the owner agrees in a separate, recordable contract with Interior to certain significant restraints on his rights to the excess lands. Each appellant entered into at least one such recordable contract with Interior between 1969 and 1974. The appellants' recordable contracts are identical except for the description of the owner’s particular excess lands. Article"
},
{
"docid": "15044069",
"title": "",
"text": "ORDER KARLTON, District Judge. Before the court is the plaintiffs’ motion for summary judgment. Plaintiffs’ suit attacks the adoption of regulations implementing the Reclamation Reform Act (“RRA”) on the grounds that prior to adoption the Bureau of Reclamation was required to perform an Environmental Impact Study (“EIS”) pursuant to the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq. For the reasons I explain below, the motion is granted. THE RECLAMATION ACTS In 1902, Congress adopted the first Reclamation Act. Its purpose was to “encourage family farming on modest sized parcels and to increase agricultural output by subsidizing the irrigation of formerly arid and unproductive lands.” Barcellos & Wolfson, Inc. v. Westlands Water Dist., 899 F.2d 814, 824 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 555, 112 L.Ed.2d 562 (1990). The Act was designed to limit private speculative gains resulting from the existence of reclamation projects, see United States v. Tulare Lake Canal Co., 585 F.2d 1093, 1119 (9th Cir.1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1156, 51 L.Ed.2d 571 (1977), which ultimately provided irrigation water to farmers throughout the 17 western states at prices substantially below cost. To ensure family-sized farming and prevent private speculation, the original Act limited the delivery of water to farms no greater than 160 acres in size actually occupied by the farmer. Congress’ intent to limit the benefits of the Reclamation Act to small family farms was frustrated by the executive branch. “As the program has been administered by the Department of the Interior ... the vast federal subsidy has been flowing to many farming operations which in no way resemble the small, family-owned farms envisioned by the enacting Congress.” Peterson v. U.S. Dept. of the Interior, 899 F.2d 799, 804 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 567, 112 L.Ed.2d 574 (1990). Instead, through leasing arrangements and other devices, the water districts and large farming interests, with the acquiescence of the Department, “found ways to circumvent the 160-acre limitation,” id., resulting in the enormous federal subsidies involved in supplying reclamation water being provided to very large"
},
{
"docid": "1476636",
"title": "",
"text": "had 30 days to act after the Judgment was submitted to it, but did not stop its effectiveness. . See, e.g., Bryan J. Wilson, Westlands Water District and Its Federal Water: A Case Study of Water District Politics, 7 STAN. ENVTL. L.J. 187, 197 (1987/1988) (discussing boundaries of original Westlands and Westplains areas, which merged into present-day Westlands). . Interior intended the so-called \"hammer clause” to encourage compliance with the new acreage and pricing limitations of the 1982 RRA, see 128 Cong. Rec. 26,073 (Sept. 29, 1982) (statement of Rep. Udall), by giving water contractors a choice: voluntarily and irrevocably elect to amend their contracts to comply with the RRA’s full-cost pricing provisions for excess lands in order to take advantage of the expanded acreage limitations (960 acres), see 43 U.S.C. § 390cc(b) (2000), or continue to receive water’ at the subsidized contract rate under the 160-acre pre-RRA (1902 Act as amended) regime. . Boston Ranch sold approximately 20,280 acres of excess lands in May, 1989, and 2,848 excess lands in November, 1989. See Doc. 48 ¶ 39. However, on January 23, 1990, Boston Ranch executed an election to subject its remaining 632 acres to the discretionary provisions of the 1982 RRA. In 1986, S. Stamoules & Company gifted 160 acres of land. See id. at ¶ 40. In January, 1988, it distributed approximately 960 acres to each of its individual partners, who elected to subject those lands to the discretionary provisions of the 1982 RRA. See id. South Boston Company and WestHaven sold the last of their excess lands in approximately 1992. . Pub.L. No. 100-203, 101 Stat. 1330. . It did, however, provide that Interior \"shall not seek reimbursement for any amounts due under this subsection ... which was due prior to December 22, 1987.” Id. . Section 205(a) of the RRA states in relevant portion: (a) Notwithstanding any other provision of law, any contract with a district entered into by the Secretary [of Interior] ... shall provide for the delivery of irrigation water at full cost ... to [excess lands] 43 U.S.C. § 390ee(a) (2000). . This"
},
{
"docid": "1476530",
"title": "",
"text": "the Bureau of Reclamation, agreed to make available for Westlands’ purchase 900,000 acre-feet of water from the San Luis Unit of the Central Valley Project CCVP’).” Barcellos & Wolfsen, Inc. v. Westlands Water Dist., 849 F.Supp. 717, 720 (E.D.Cal.1993), aff'd, O’Neill v. United States, 50 F.3d 677 (9th Cir.1995). By this Contract, Interior agreed to provide CVP water to the District for 40 years. Two main provisions of the 1963 Contract are germane to this suit: (1) a specified volume of water provided at $8.00/acre-foot ($7.50/acre-foot for water service and $0.50/aere-foot for drainage service) in Article 6(a); and (2) before water could be delivered to “excess lands” (lands in excess of 160 acres), the owner must execute a “recordable contract” to sell those excess lands within ten (10) years at a price that does not consider the water rights (Article 23(a)), or Interior would do so through a power of attorney granted by the owner (Articles 24-25). C. 1976: D.C. District Court Injunction On August 9, 1976, the District of Columbia district court issued an injunction preventing approval of any new contracts for excess land sales until the initiation of public rule-making proceedings. See Nat. Land for People v. Bureau of Reclamation, 417 F.Supp. 449 (D.D.C.1976). That injunction remained in effect until 1982. As a result, Interior halted all land sales under recordable contracts nationwide, and did not approve land sales from 1976 through 1984. As ten years of ownership of water users’ excess lands began to expire, a problem surfaced: although under the injunction, the water-users were unable to complete sale of them excess lands, they nevertheless continued to receive subsidized water for these excess lands for more than ten years. D. 1978: The Interior Department Increases the Water Price In 1978, the Solicitor of the Interior Department “issued a legal opinion stating that the $8.00 rate specified in the 1963 Contract was inadequate to recover the escalating costs of the Project and was therefore contrary to the federal reclamation laws, see 43 U.S.C. § 461, and not binding.” Barcellos, 899 F.2d at 817 (citing 1978 “Krulitz opinion” )."
},
{
"docid": "1476528",
"title": "",
"text": "law.” Martin J. Jackley, Reclamation Law and the Bell Fourche Irrigation District: A Desperate Fight for a Way of Life in Times of Change, 40 S.D. L. REV. 478, 479 (1995) (footnote omitted). “The final westward migration of the late 1800s resulted in an enormous demand by the settlers for irrigation systems.” Peterson v. United States Dep’t of Interior, 899 F.2d 799, 802 (9th Cir.1990) (citing Paul S. Taylor, The Excess Land Law: Execution of a Public Policy, 64 YALE L.J. 477, 481-85 (1955)). “Responding to the pressing demand for federal assistance in funding water reclamation projects, Congress passed the Reclamation Act of 1902.” Id. (citing 1902 Act). The 1902 Act had two purposes: “encourage family farming on modest-sized parcels [160 acres];” and “to increase agricultural output by subsidizing the irrigation of formerly arid and unproductive lands.” Barcellos, 899 F.2d at 824 (citing Ivanhoe Irrig. Dist., 357 U.S. at 275, 78 S.Ct. 1174; United States v. Tulare Lake Canal Co., 535 F.2d 1093 (9th Cir.1976)). “Congress adjusted the balance by amending the Act to authorize Interior to allow larger operators to receive water in exchange for their promise to divest themselves of excess lands.” • Id. (citing 43 U.S.C. § 423e). Under the 1902 Act, there was very limited regulation of excess lands, because prior to the 1982 RRA, Interior did not regulate leasing of excess lands receiving subsidized water. See 32 Stat. 389 (1902) (making landowner eligible for federal project water if he owned less than 160 acres, but not limiting such water delivery to non-leased lands). The Omnibus Adjust ment Act of 1926, the first major amendment to the 1902 Act, partially rectified this problem by introducing the “recordable contract” idea, which required water recipients who owned lands in excess of 160 acres to enter into a contract with Interior in which they agreed to sell their excess lands within ten years at a price not reflecting the availability of project water. See id. at 483. B.1963: 1963 Contract “Westlands entered into a water service contract with the United States in 1963 under which the United States, through"
},
{
"docid": "16564074",
"title": "",
"text": "Thomas Kleppe, Secretary of the Department of Interior, who supervises the operations of the Bureau of Reclamation and is authorized by statute, 43 U.S.C. § 373, to perform such acts and to make such rules and regulations as required to implement the purposes and provisions of the Reclamation Act, and; Gilbert G. Stamm, Commissioner of the Bureau of Reclamation, responsible for administering the reclamation of arid land under the Reclamation Act of 1902 and supplementary acts and under the supervision of the Secretary of the Interior. The intervening defendants are ten individuals who have entered into agreements to purchase excess land from private land owners and three California corporate landlords, owners of excess land. The Statutory Framework The Westlands Water District is a part of the San Luis Unit of the Central Valley Project in California. It was designed, constructed, and financed by the government to supply federally owned water through federally owned irrigation works to farm land in Westlands. The Project is administered by the Bureau in accordance with the Reclamation Acts of 1902 and 1926. All land within Westlands was in private ownership at the time the Project was authorized by Congress. Under the Act of 1926, for a private landowner to receive Project water, he was first required to sign a recordable contract with the Department of the Interior agreeing to sell any lands owned in excess of 160 acres, under terms and conditions satisfactory to the Secretary of the Interior and at prices not exceeding those fixed by the Secretary. 43 U.S.C. § 423e. A condition of the recordable contract is that the landowner must obtain approval of proposed excess land sales from the Bureau of Reclamation. Under the reclamation laws and pursuant to its recordable contract with the landowner, the Bureau approves the sale when assured that: a bona fide sale is involved; the prospective purchaser is eligible to take title to the land as nonexcess; and the price involved in the transaction does not reflect project benefits. If the landowner fails to sell his excess acreage within time limits provided by the contract, a"
},
{
"docid": "16564072",
"title": "",
"text": "MEMORANDUM OPINION PARKER, District Judge. In this proceeding plaintiff seeks a preliminary injunction embracing a wide range of relief. The Court concludes that partial relief is warranted and a preliminary injunction is granted to that extent. The background events and the reasons why such relief is granted are set forth in this Memorandum Opinion. The Nature of the Litigation This proceeding is concerned with our nation’s reclamation program and the sale of privately owned land in the Westland Water District (Westlands) of the San Joaquin Valley of California. Such sales are governed by the requirements and provisions of the Reclamation Act of 1902, 43 U.S.C. § 371 et seq., and the Omnibus Adjustment Act of 1926, 43 U.S.C. § 423 et seq. The reclamation program provides federally subsidized water to private owners of land in Westlands and other arid areas through projects constructed and sponsored by the Federal government. The two statutes mandate that owners of more than 160 acres in Westlands may receive water from a Federal water resources project on such excess land if they sign recordable contracts agreeing to sell such excess land within a stated time to eligible buyers in 160 acre parcels at prices based on the true market value of such lands without reference to the construction of the water project. The Bureau of Reclamation (Bureau) of the Department of Interior is charged with the administration of the reclamation program. The plaintiff, National Land for People, Inc. (National Land), seeks a preliminary injunction against officials of the Department of Interior prohibiting the approval of such excess land sales under present Bureau rules and regulations; directing them to institute rule making proceedings and to implement rules consistent with the Act; and prohibiting them from approving sales of excess land until completion of rule making procedures. The Parties National Land is a non-profit membership organization composed predominantly of farmworkers and farmers whose purpose is to promote and assist the growth of family farms and to insure enforcement of laws affecting agricultural landholding. The organization is incorporated in the State of California. The named Federal defendants are:"
},
{
"docid": "23503451",
"title": "",
"text": "Article VIII of said Colorado River compact; and third, for power.” Section 9 authorized the opening to entry of the public lands that would become irrigable by the Project but in tracts not greater than 160 acres in size in accordance with the provisions of the reclamation law. Section 14 provided that the Project Act should be deemed supplemental to the reclamation law, “which said reclamation law shall govern the construction, operation, and management of the works herein authorized, except as otherwise herein provided.” The “reclamation law” referred to was defined in § 12 as the Act of June 17, 1902 (Reclamation Act), 32 Stat. 388, and Acts amendatory thereof and supplemental thereto. One of the statutes amendatory of or supplemental to the Reclamation Act was the Omnibus Adjustment Act of 1926 (1926 Act), § 46 of which, 44 Stat. (part 2) 649, 43 U. S. C. § 423e, forbade delivery of reclamation project water to any irrigable land held in private ownership by one owner in excess of 160 acres, and required owners to execute recordable contracts for the sale of excess lands before such lands could receive project water. Pursuant to the Project Act, the United States and the District entered into a contract on December 1, 1932, providing for the construction of the Imperial Dam and the All-American Canal. The District undertook to pay the cost of the works, and to include within itself certain public lands of the United States and other specified lands. The United States undertook to deliver to the Imperial Dam the water which would be carried by the new canal to the various lands to be served by it. The contract contained no acreage limitation provision. Pursuant to this contract, the United States constructed the Imperial Dam in the Colorado River — some distance below Black Canyon but upriver from the existing point of diversion — and the All-American Canal connecting the dam and Imperial Valley. Use of the canal began in 1940, and by 1942 it carried all Colorado River water used by Imperial Valley. Article 31 of the contract between"
},
{
"docid": "2327935",
"title": "",
"text": "period to sell excess lands if “water or service from the Project” becomes unavailable during that time. The appellants argue that “service” refers to the service of approving excess land sales and that they are thus entitled by the contract to additional time in which to dispose of their lands. Their interpretation of the word “service” is unsupportable, but even if we accept their interpretation, Article 13 does not entitle them to subsidized water. The appellants need to show more than just their entitlement to own the excess lands for more than ten years free of the Secretary’s power of attorney; they need to show their entitlement to Project water under the terms of the contract during that time. Article 13, when,properly construed, perhaps at most implicitly provides for the converse relationship between extended ownership and extended water rights. If a landowner were actually to suffer from a cut off of water through no fault of his own, it is arguable that he would be entitled to hold onto his lands for a long enough time to receive the benefit that Article 13 seems intended to confer. The primary benefit that the landowners receive from the federal reclamation program is the privilege of receiving subsidized water. Having to sell their excess lands within a limited period of time at an artificially low appraised price is an intended burden. When Congress passed the Reclamation Act of 1902, it had two goals — to encourage family farming on modest-sized parcels and to increase agricultural output by subsidizing the irrigation of formerly arid and unproductive lands. See Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); United States v. Tulare Lake Canal Co., 535 F.2d 1093 (9th Cir.1976). Because the 1902 Act’s attempt to advance the first goal by strictly limiting access to subsidized water to those who owned fewer than 160 acres proved to interfere too much with the second goal, Congress adjusted the balance by amending the Act to authorize Interior to allow larger operators to receive water in exchange for their promise to divest"
},
{
"docid": "16564073",
"title": "",
"text": "if they sign recordable contracts agreeing to sell such excess land within a stated time to eligible buyers in 160 acre parcels at prices based on the true market value of such lands without reference to the construction of the water project. The Bureau of Reclamation (Bureau) of the Department of Interior is charged with the administration of the reclamation program. The plaintiff, National Land for People, Inc. (National Land), seeks a preliminary injunction against officials of the Department of Interior prohibiting the approval of such excess land sales under present Bureau rules and regulations; directing them to institute rule making proceedings and to implement rules consistent with the Act; and prohibiting them from approving sales of excess land until completion of rule making procedures. The Parties National Land is a non-profit membership organization composed predominantly of farmworkers and farmers whose purpose is to promote and assist the growth of family farms and to insure enforcement of laws affecting agricultural landholding. The organization is incorporated in the State of California. The named Federal defendants are: Thomas Kleppe, Secretary of the Department of Interior, who supervises the operations of the Bureau of Reclamation and is authorized by statute, 43 U.S.C. § 373, to perform such acts and to make such rules and regulations as required to implement the purposes and provisions of the Reclamation Act, and; Gilbert G. Stamm, Commissioner of the Bureau of Reclamation, responsible for administering the reclamation of arid land under the Reclamation Act of 1902 and supplementary acts and under the supervision of the Secretary of the Interior. The intervening defendants are ten individuals who have entered into agreements to purchase excess land from private land owners and three California corporate landlords, owners of excess land. The Statutory Framework The Westlands Water District is a part of the San Luis Unit of the Central Valley Project in California. It was designed, constructed, and financed by the government to supply federally owned water through federally owned irrigation works to farm land in Westlands. The Project is administered by the Bureau in accordance with the Reclamation Acts of 1902"
},
{
"docid": "650782",
"title": "",
"text": "federal reclamation laws is Section 46 of the Omnibus Adjustment Act of 1926, 44 Stat. 636, 649-50, 43 U.S.C. § 423e, derived from Section 5 of the Reclamation Act of 1902, 32 Stat. 389, 43 U.S.C. § 431. Section 46 of the 1926 Act provides that lands in excess of 160 acres held by one owner shall not receive water made available by the construction of a project unless the owner executes a contract agreeing to sell the excess land at prices reflecting the value of the excess land without the benefits made available by the project. We held in Tulare I that Congress intended by Section 8 of the Flood Control Act of 1944 to make Section 46 of the Omnibus Adjustment Act of 1926 applicable to the Pine Flat Project. The question presented in California was whether the state may impose conditions upon the appropriation and distribution of water in connection with the New Melones Dam, a federal reclamation project in the Central Valley of California. The answer turned on the meaning of Section 8 of the Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C. § 383, which states that the 1902 Act was not intended to interfere with the laws of any state relating to the appropriation or distribution of water, and that the Secretary of Interior is to proceed in conformity with such laws. The Supreme Court held that, in view of Section 8 of the 1902 Act, the state may impose any condition on the appropriation and distribution of water in a federal reclamation project not inconsistent with Congressional directives respecting the project. Although Section 8 of the 1902 Act is applicable generally to federal reclamation projects, including the Pine Flat Project, and the holding in California is therefore applicable to Pine Flat, the issue resolved in California obviously was not the same as the issue resolved in Tulare I. Tulare Lake Canal Company argues that California nonetheless affects Tulare I for two reasons. The first is that Tulare I relied upon Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2"
},
{
"docid": "12441990",
"title": "",
"text": "land anywhere in the United States, and that they desired to purchase “excess' lands” irrigated with water delivered by the federal reclamation project. These excess lands would be the private lands that would have been sold under the provisions of Section 46 of the Omnibus Adjustment Act of 1926, 43 U.S.C. § 423e, had the government prevailed in the litigation. They further alleged that they were within the class of beneficiaries of the reclamation laws that were the focus of the lawsuit. Read, as it must be, in the light of the government’s complaint, their interest is in the purchase of farm lands at prices to be set in accord with the dictates of Section 46. This Court has only recently extensively reviewed the purposes behind Section 46. That Section was adopted to achieve broad antimonopoly and antispeculation purposes “conceived by Congress to be of importance to society as a whole.” United States v. Tulare Lake Canal Co., 535 F.2d 1093, 1121 (9th Cir. 1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1156, 51 L.Ed.2d 571. We specifically noted also that “Section 46 was intended to accomplish the redistribution of large privately owned tracts at prices substantially below the actual value of such lands at the time of sale.” Id. The history of the reclamation laws confirms that one of their primary purposes was the establishment of a large number of family-size farms. Id. at 1119, 1122. See generally, Taylor, The Excess Land Law: Execu tion of a Public Policy, 64 Yale L.J. 477, 481-489 (1961). In this case, the district court found that there were approximately 800 owners of irrigable land in the Imperial Irrigation District whose holdings totalled over 160 acres and that the aggregate landholdings of this group were approximately 233,000 acres. Sale of any of these holdings in excess of 160 acres in accord with Section 46 would make family-size farms available for purchase in the Imperial Valley at prices below current market prices. The injury that, the Yellen group is asserting in this case is not merely the high cost of land. More precisely, they"
},
{
"docid": "2327936",
"title": "",
"text": "time to receive the benefit that Article 13 seems intended to confer. The primary benefit that the landowners receive from the federal reclamation program is the privilege of receiving subsidized water. Having to sell their excess lands within a limited period of time at an artificially low appraised price is an intended burden. When Congress passed the Reclamation Act of 1902, it had two goals — to encourage family farming on modest-sized parcels and to increase agricultural output by subsidizing the irrigation of formerly arid and unproductive lands. See Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); United States v. Tulare Lake Canal Co., 535 F.2d 1093 (9th Cir.1976). Because the 1902 Act’s attempt to advance the first goal by strictly limiting access to subsidized water to those who owned fewer than 160 acres proved to interfere too much with the second goal, Congress adjusted the balance by amending the Act to authorize Interior to allow larger operators to receive water in exchange for their promise to divest themselves of excess lands. See 43 U.S.C. § 423e. Against this backdrop, Article 13’s guarantee to the landowner of subsidized water for the period of time during which he lost that right makes good sense, since the essential benefit to the landowner provided by the contract (and the Act) is cheap water for the specified period of time. It does not follow that in exchange for the temporary loss of the right to sell their excess lands at an artificially low price, the landowners should receive the right to additional years of cheap water. The statutory and contractual scheme suggest that the right to subsidized water is likely to be more valuable than the right to sell lands; otherwise there would be no need to coerce the landowner to sell at the end of ten years— he would do it right away. Other than Article 13, the only contractual provision that the appellants rely on to link ownership with entitlement to subsidized water is Article 8, which we concluded did not so entitle landowners. We"
},
{
"docid": "1476632",
"title": "",
"text": "Study of Water District Politics, 7 STAN. ENVTL. L.J. 187, 188 (1987/1988) (“Westlands Water District lies on the western edge of California's San Joaquin Valley, southwest of Fresno. It is roughly rectangular, bounded approximately by Interstate 5 on the west and the San Joaquin River on the east.”) (citing WEST-LANDS WATER DISTRICT, FACTS AND FIGURES 2 (1987)). . For an in-depth description of the history of the CVP and the lands involved, see Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 279-84, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958). . Pub.L. No. 86-488, 74 Stat. 156 (1960). . Boston Ranch Company \"executed two recordable contracts in 1972, covering 23,711 acres of excess lands.” Barcellos, 899 F.2d at 816 n. 2. .Westhaven Farming Company \"executed five recordable contracts in 1973 and 1974, covering 5,556 excess acres.” Barcellos, 899 F.2d at 816 n. 2. . Reclamation Act of 1902, Pub.L. No. 57-161, ch. 1093, § 5, 32 Stat. 388 (former 43 U.S.C. §§ 371-573). . \"The purpose of the original 1902 Act was to encourage people to go West, not to engage in big-time speculation, but to grow crops on modest family farms in the country’s drier regions so that the nation’s agricultural bounty would increase.” Id. at 815 (internal citation omitted). Additional objectives were to widely distribute the benefits of publicly-financed water reclamation projects; promote owner-operated farms; and preclude speculative gain. See 35 Cong. Rec. 6758 (June 13, 1902) (statement of Rep. Martin). . 44 Slat. 478 (1926) (amending 1902 Act). . Between 1969 and 1974, all water-users entered into recordable contracts that complied with the 1963 Contract. See Barcellos, 899 F.2d at 816. . This suit was brought by the National Land for People on behalf of several small farmers who were unsuccessful in their attempt to purchase excess lands in the West-lands Water District and sought to prevent Westlands from engaging in questionable land transfers by requiring Interior to promulgate regulations of its approval of Westlands excess lands sales under recordable contracts. .See 85 Interior Dec. 197, at 297, 1978 WL 27464 (July 31, 1978) (Decision No. M-36901). ."
},
{
"docid": "1476633",
"title": "",
"text": "go West, not to engage in big-time speculation, but to grow crops on modest family farms in the country’s drier regions so that the nation’s agricultural bounty would increase.” Id. at 815 (internal citation omitted). Additional objectives were to widely distribute the benefits of publicly-financed water reclamation projects; promote owner-operated farms; and preclude speculative gain. See 35 Cong. Rec. 6758 (June 13, 1902) (statement of Rep. Martin). . 44 Slat. 478 (1926) (amending 1902 Act). . Between 1969 and 1974, all water-users entered into recordable contracts that complied with the 1963 Contract. See Barcellos, 899 F.2d at 816. . This suit was brought by the National Land for People on behalf of several small farmers who were unsuccessful in their attempt to purchase excess lands in the West-lands Water District and sought to prevent Westlands from engaging in questionable land transfers by requiring Interior to promulgate regulations of its approval of Westlands excess lands sales under recordable contracts. .See 85 Interior Dec. 197, at 297, 1978 WL 27464 (July 31, 1978) (Decision No. M-36901). . The action was captioned: Barcellos & Wolfsen, Inc. v. Westlands Water Dist., No. CV-F-79-106 EDP (E.D.Cal.). . Before the 1982 RRA, federal reclamation law was primarily comprised of the 1902 RRA, 32 Stat. 388, as amended by: (1) the Omnibus Adjustment Act of 1926, 44 Stat. 636; and (2) the Reclamation Project Act of 1939, 53 Stat. 1187. . See S. Con. Rep. No. 568, 97th Cong., 2d Sess. 5 (1982). . These sections read: (a) Generally The provisions of this subchapter shall be applicable to any district which— (1) enters into a contract with the Secretary subsequent to October 12, 1982; (2) enters into any amendment of its contract with the Secretary subsequent to Octo ber 12, 1982, which enables the district to receive supplemental or additional benefits; or (3) which amends its contract for the purpose of conforming to the provisions of this subchapter. (b) Amendment of existing contracts Any district which has an existing contract with the Secretary as of October 12, 1982, which does not enter into an amendment of such"
},
{
"docid": "16564075",
"title": "",
"text": "and 1926. All land within Westlands was in private ownership at the time the Project was authorized by Congress. Under the Act of 1926, for a private landowner to receive Project water, he was first required to sign a recordable contract with the Department of the Interior agreeing to sell any lands owned in excess of 160 acres, under terms and conditions satisfactory to the Secretary of the Interior and at prices not exceeding those fixed by the Secretary. 43 U.S.C. § 423e. A condition of the recordable contract is that the landowner must obtain approval of proposed excess land sales from the Bureau of Reclamation. Under the reclamation laws and pursuant to its recordable contract with the landowner, the Bureau approves the sale when assured that: a bona fide sale is involved; the prospective purchaser is eligible to take title to the land as nonexcess; and the price involved in the transaction does not reflect project benefits. If the landowner fails to sell his excess acreage within time limits provided by the contract, a power of attorney passes to the Secretary of the Interior to sell the property. Otherwise, the Bureau of Reclamation has no authority over whom the private seller sells his land. The History of this Litigation On November 14, 1975, National Land, pursuant to the Administrative Procedure Act, 5 U.S.C. § 553, petitioned the Bureau to formulate rules and regulations establishing criteria and procedures for governmental approval of sales of excess land under the Reclamation Act. Plaintiff requested rule making to insure Bureau enforcement of the statutory requirements that any person owning in excess of 160 acres of land receiving subsidized water from a Federal reclamation project must dispose of such excess land pursuant to a recordable contract: a) in lots of not more than one hundred and sixty (160) acres per buyer, b) to residents of the land or those living in the neighborhood, and c) at prices which reflect the value of the land without the Federally subsidized irrigation. 43 U.S.C. § 431, 43 U.S.C. § 423e. On February 5,1976, the Bureau rejected the"
}
]
|
860382 | is certain McConnell’s ADEA claims would be timely, because at the time he filed both his original and amended state court petitions, the EEOC had not yet notified him either of the dismissal of his charge or termination of its proceedings. The statute of limitations would not have begun to run when McConnell filed his claims. 1. New Section 626(e) Sets the Limitations Period for McConnell’s Action Four United States Courts of Appeals have considered the retroactive application of various provisions of the Civil Rights Act of 1991: Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.1992); Banas v. American Airlines, 969 F.2d 477 (7th Cir. 1992); Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.1992); REDACTED Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir. 1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. Cincinnati, 959 F.2d 594 (6th Cir.1992), petition for cert. filed, 60 U.S.L.W. 3881 (June 11, 1992). Among them they consider the retroactivity of sections 101, 102, 104, 105, and 112 of the Act. Research has revealed no circuit or district court decision regarding section 115. Each of the above circuit opinions rehearses, in varying detail, the current confusion surrounding the United States Supreme Court’s retroactivity jurisprudence, which is elaborated in Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969); Bradley v. Richmond School Bd., 416 U.S. 696, 716, | [
{
"docid": "23046407",
"title": "",
"text": "parties have briefed the significance of that enactment to the appeal. Some weeks ago another panel of this court, in agreement with the only other courts of appeals to have decided it, Vogel v. City of Cincinnati, 959 F.2d 594, 597-98 (6th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992), held that the Act is not. to be applied retroactively. Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir. 1992). In view of the importance of the question, we shall discuss it as if it were an open question in this circuit, rather than, as we would ordinarily do, dispose of it with a citation to our recent decision. But we can be brief. Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), had interpreted the then section 1981 to exclude claims based on a refusal to promote or transfer an employee, unless the promotion or transfer could be said to create a new employment relation. The decision, applied as decisions normally (perhaps, after James B. Beam Distilling Co. v. Georgia, - U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), always) are to pending as well as to new cases, wiped out many of Luddington’s claims. The new civil rights act makes section 1981 expressly applicable to all racial discrimination in a contractual relation. 42 U.S.C. § 1981(b). If, as Luddington argues, the new act is retroactive, then some of the charges dismissed by the district judge must be reinstated. Of course, there is retroactivity and there is retroactivity. A statute could be applied (1) to cases filed and completed before the effective date of the statute that arise from acts committed before that effective date, (2) to cases filed before the effective date of the statute, but not completed by that date, that arise from acts committed before that date, (3) to cases filed after the effective date that arise from acts committed before that date, (4) to cases in any of these categories but in which the conduct complained of straddles the effective date"
}
]
| [
{
"docid": "11710355",
"title": "",
"text": "of equitable relief); Sparrow v. Commissioner, 949 F.2d 434, 438-39 (D.C.Cir.1991) (title VII remedies, including back pay, properly considered equitable), cert. denied, - U.S. -, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992). . See, e.g., Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir.1992) (on petition for rehearing); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992), petition for cert. filed, 60 U.S.L.W. 3881 (U.S. June 11, 1992) (No. 91-2001). . See Kaiser Aluminum & Chem. Corp. v. Bonjomo, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990) (noting apparent conflict between Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), which states that retroactivity is the norm, and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), in which a unanimous Court stated, “Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.’’). . Additionally, in Uncle Ben's, 965 F.2d at 1374 we relied upon the canon that statutes affecting substantive rights, as opposed to procedural ones, should be applied only prospectively. In Rowe v. Sullivan, 967 F.2d 186, 193-94 (5th Cir.1992), we suggested that where a party attempts to use a statutory change to revive a right that did not exist under the law as it was at the time of the events in question, the right at issue has substantive attributes. We need not follow that suggestion to decide the instant case, though. . The language of the Act does not require retroactivity, Uncle Ben’s, 965 F.2d at 1373, so under Bowen we would reach the same result. . Cf. United Steelworkers of Am. v. Weber, 443 U.S. 193, 205-06, 99 S.Ct. 2721, 2728, 61 L.Ed.2d 480 (1979) (Title VII was not intended to \"diminish traditional management prerogatives.”), cited in Burdine, 450 U.S. at 259, 101 S.Ct. at"
},
{
"docid": "9610119",
"title": "",
"text": "the original panel by designation, concurred with Judge Cummings’ position. . Other circuits which have considered this issue have concluded overwhelmingly that the new Act does not apply retroactively. See Gersman v. Group Health Ass'n, Inc., 975 F.2d 886 (D.C.Cir.1992); Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.1992), cert. granted, - U.S. --, 113 S.Ct. 1250, 122 L.Ed.2d 649 (1993); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992); Vogel v. Cincinnati, 959 F.2d 594 (6th Cir.), cert. denied, - U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Hicks v. Brown Group, Inc., 982 F.2d 295 (8th Cir.1992) (en banc); Baynes v. AT & T Technologies, 976 F.2d 1370 (11th Cir.1992). Contra, Reynolds v. Martin, 985 F.2d 470 (9th Cir.1993) (concluding that the new Act applies retroactively). .In his dissent. Judge Ripple notes that \"it is a significant judicial diseconomy for this court to proceed to judgment” before the Supreme Court renders its decision in Landgraf. Ripple, J. dissent at 570. But this circuit has already expended its judicial resources resolving the issue of retroactivity in Mozee and Luddington. This case involves no more than a straightforward application of those two cases. . In his dissent in this case, Judge Cummings continues to assert that the time of the trial, rather than the time of the alleged discriminatory conduct, determines application of the new law. He expresses \"wonder” over this court’s position that the time of the conduct controls liability, and speculates that this position is rooted in our \"imagination.” Cummings, J. dissent at 565-66. To the contrary, our position is found in Mozee and Luddington, two cases which, as Judge Cummings agrees, state the law of this Circuit. See Cummings, J. dissent at 564 (\"I have never questioned Mozee and Luddington as binding authority in this circuit.”). . The new Act makes clear that the right to a jury trial emanates from the availability of compensatory and punitive damages. Section 102(c) states: If a complaining party seeks compensatory or punitive damages under this section"
},
{
"docid": "1529264",
"title": "",
"text": "the Eighth Circuit have addressed whether this act should apply retroactively to § 1981 claims that were pending on appeal. at the time of enactment. Both circuits have ruled that the CRA of 1991 does not apply retroactively. Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992). Both Vogel and Fray examine the history of judicial treatment of retroactivity as applied to new legislation. Building upon both Roman civil law and English common law, up to 1969 it was a well-established principle in American jurisprudence that legislation must be applied only prospectively unless the legislature specifically decreed a retroactive application. Fray, 960 F.2d at 1374. However, in Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), and in Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court held that a new statute must be retroactively applied to a case that was pending on appeal at enactment “unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley, 416 U.S. at 711, 94 S.Ct. at 2016. Later, in Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), the Supreme Court reiterated the principle that “[rjetroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect, unless their language requires the result.” Id. at 208,109 S.Ct. at 471. While the Supreme Court acknowledged this tension in the case law in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), the court did not have to resolve the issue, as congressional intent was found to be clear in that case. Given these conflicting rules of construction, both the Vogel and Fray courts examined the language and legislative history of the CRA of 1991 and concluded that it should not be"
},
{
"docid": "18866785",
"title": "",
"text": "Commerce, 974 F.2d 592, 595 (5th Cir.1992); Wilson v. Belmont Homes, Inc., 970 F.2d 53, 56 (5th Cir.1992); Landgraf v. USI Film Products, 968 F.2d 427, 432 (5th Cir.1992); Rowe v. Sullivan, 967 F.2d 186, 190 (5th Cir.1992); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992). Sixth Circuit: Holt v. Mich. Dep’t of Corrections, 974 F.2d 771, 774 (6th Cir.1992); Harvis v. Roadway Express, Inc., 973 F.2d 490, 497 (6th Cir.1992); Vogel v. Cincinnati, 959 F.2d 594, 597-98 (6th Cir.1992). Seventh Circuit: Banas v. American Airlines, 969 F.2d 477, 483 (7th Cir.1992); Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1199 (7lh Cir.1992); Luddington v. Indiana Bell Tel. Co., 966 F.2d 225 (7th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 934-38 (7th Cir.1992). Eighth Circuit: Hicks v. Brown Croup, Inc., 982 F.2d 295 (8th Cir.1992); Huey v. Sullivan, 971 F.2d 1362, 1365 (8th Cir.1992); Partan v. GTE North, Inc., 971 F.2d 150 (8th Cir.1992); Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir.1992); Valdez v. Mercy Hosp., 961 F.2d 1401, 1404 (8th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370, 1374-78 (8th Cir.1992). Eleventh Circuit: Baynes v. AT & T Technologies, Inc., 976 F.2d 1370, 1373 (11th Cir.1992). District of Columbia Circuit: Gersman v. Group Health Ass’n, 975 F.2d 886 (D.C.Cir.1992). Academic commentators arc likewise unanimous in the conclusion that there was no \"clear congressional intent\" the Act apply retroactively. See Note, Retroactive Application of the Civil Rights Act of 1991 to Pending Cases, 90 Mich. L.Rev. 2035, 2057 (1992) (“Congress simply could not decide whether to apply the Act either retroactively or prospectively.”); Comment, Executive Veto, Congressional Compromise, and Judicial Confusion: The 1991 Civil Rights Act— Does It Apply Retroactively?, 24 Loy.U.Chi.L.J. 109, 116 (1992) (both the language of the 1991 Civil Rights Act and its legislative history are ambiguous); Comment, Retroactivity of the Civil Rights Act of 1991, 44 Baylor L.Rev. 569 (1992) (\"[t]he language of the Act provides little guidance concerning the issue of retroactivity”); Recent Developments, Retroactive Application of the Civil Rights Act"
},
{
"docid": "13046171",
"title": "",
"text": "“a new and unanticipated obligation” on the parties. Bradley, supra, 416 U.S. at 720, 94 S.Ct. at 2021. Although the basic norm of nondiscrimination is unchanged by the Act, we believe that imposing potential liability for damages for post-hiring behavior under section 1981, as opposed to the lesser Title VII remedies, would significantly and unfairly have an effect on the parties. In addition, this case has been litigated for two and one-half years through a non-jury trial on the merits, all in reliance on prior law. In circumstances like these, we conclude that the effect of the statutory change strongly mitigates against retroactivity. For these reasons, we hold that those parts of the Civil Rights Act of 1991 in controversy in this case do not apply retroactively in cases in which judgment was entered before the Act’s pertinent effective date. Our holding is consistent with those of most of the other circuits that have addressed the retroactivity of the Civil Rights Act of 1991. See Gersman v. Group Health Association, Inc., 975 F.2d 886 (D.C.Cir.1992); Johnson v. Uncle Ben’s Inc., 965 F.2d 1363 (5th Cir.1992); Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992); but see Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir.1992). We also note that the Equal Employment Opportunity Commission has concluded the Act does not apply retroactively to conduct occurring before the effective date of the Act. EEOC Notice No. 915.002 (December 27, 1991). The judgment of the district court is AFFIRMED. . We address no other kinds of cases, but neither do we imply that the Act would apply retroactively in other circumstances. Having reviewed the record, we also conclude that the remainder of appellant's arguments have no merit. . We have doubts whether Baynes' section 1981 claims were ever properly before the district court. Nonetheless, the magistrate judge appointed by the district court found"
},
{
"docid": "22463343",
"title": "",
"text": "recently addressed the issue of the Act’s retroactivity in Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.1992), where we joined the other circuit courts which have ruled on the issue in holding that § 101(2)(b) of the Act does not apply to conduct occurring before the effective date of the Act. See Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992). We need not repeat here our discussion of the legislative history of the Act. For the reasons explained in Johnson, we conclude that there is no clear congressional intent on the general issue of the Act’s application to pending cases. We must therefore turn to the legal principles applicable to statutes where Congress has remained silent on their retroactivity. As we noted in Johnson the legal principles surrounding the retroactive application of statutes are somewhat uncertain in light of the Supreme Court’s decisions in Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) and Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). We need not resolve the recognized tension between the Bradley and Bowen cases, however, in order to resolve the issue facing us here. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1572, 108 L.Ed.2d 842 (1990). Even under the standard set forth in Bradley we conclude that these two provisions of the Act should not be applied retroactively to this case. The rule set forth in Bradley is that a court must “apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley, 416 U.S. at 711, 94 S.Ct. at 2016. In determining whether retroactive application of a statute will wreak injustice, we consider “(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the"
},
{
"docid": "8103957",
"title": "",
"text": "defendants’ contention. In Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992), this Circuit held that the Civil Rights Act of 1991 does not apply retroactively to conduct that occurred before the Act became law. Id. at 597-89. The Fifth, Seventh and Eighth Circuits have followed suit. See Johnson v. Uncle Ben’s Inc., 965 F.2d 1363 (5th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992). See also Fray, app. at 1383 (listing district courts refusing to apply Act retroactively). Several courts have discussed why the Civil Rights Act of 1991 should not apply to claims arising before and during Patterson’s reign. The courts’ reasoning can be summarized as follows. Courts must first look to the statute itself to determine whether Congress, through the statute, spoke to the issue of retroactivity. “[Wjhere the congressional intent is clear, it governs.” Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990). The Act in question is silent on this matter. If the statute’s language is unhelpful, then courts must try to discern congressional intent by looking to the statute’s legislative history. The legislative history of the Act reveals that Congressional Democrats and Republicans could not agree on whether the Act should be applied retroactively or merely prospectively. As a result, Congress “dumped the question in the the judiciary’s lap without guidance.” Luddington v. Indiana Bell Tel. Co., 966 F.2d 225, 227 (7th Cir.1992). Added to this Congressional indecision is judicial inconsistency over whether a statute should be given retroactive or prospective effect in the absence of clear congressional intent. Compare Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) (courts are to apply the law in effect at the time a court renders its decision unless such application results in manifest injustice or runs contrary to congressional intent) with Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 498 (1988) (statute does"
},
{
"docid": "2475125",
"title": "",
"text": "In holding as we do, we break ranks with the other circuits that have, decided this issue. See Baynes v. AT & T Technologies, Inc., 976 F.2d 1370 (11th Cir.1992); Gersman v. Group Health Ass’n, Inc., 975 F.2d 886 (D.C.Cir.1992); Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir.), cert. denied — U.S. -, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.), cert. denied — U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). We do so in the conviction that the plain language of the Act compels our result. We part with those decisions because they either rely on an administrative agency interpretation or the legislative history of the Act when they should not look beyond the plain text, or because they ignore or misconstrue .that dispositive statutory language. In Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992), the Sixth Circuit ignored sections 402(b) and 109(c) in finding the Act prospective. The court grounded its decision in administrative deference to the Equal Employment Opportunity Commission’s policy statement supporting the Act’s prospective application. Id. at 598. Because we conclude that the plain language of the Act when read in conjunction with basic principles of statutory construction requires us to find that the Act applies retroactively, we need not heed the Equal Employment Opportunity Commission's contrary conclusion. See Immigration and Naturalization Service v. Cardozo-Fonseca, 480 U.S. 421, 445-48, 107 S.Ct. 1207, 1220-22, 94 L.Ed.2d 434 (1987) (explaining that when the judiciary employs traditional tools of statutory construction to find clear congressional intent, deference to a contrary administrative finding is inappropriate). The Eighth Circuit, in Fray v. Omaha World Herald Co., 960 F.2d 1370, 1377, 1378 (8th Cir.1992), relied on legislative history that it termed “highly probative” and “dispositive” to its alternative holdings under Bowen and Bradley. When, as here, the text of the statute reveals its plain meaning as to retroactivity, we need not be concerned"
},
{
"docid": "1529263",
"title": "",
"text": "As in Lytle, the purposes served by collateral estoppel do not justify applying the doctrine in this case. Id. 494 U.S. at 553, 110 S.Ct. at 1337. Collateral estoppel is designed to protect parties from multiple lawsuits and potentially inconsistent decisions, as well as to conserve judicial resources. Ibid. Although remanding for further proceedings certainly will expend greater judicial resources, such litigation is essential in preserving Rivers’s and Davi-son’s seventh amendment rights to a jury trial. V While this case was pending on appeal, the United States Congress passed the Civil Rights Act of 1991. Appéllants now argue that the district court should also be reversed in light of the 1991 Act, which amends § 1981 to change the result in Patterson. The 1991 Act states that: For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the en- ' joyment of all benefits, privileges, terms, and conditions of the contractual relationship. Pub.L. 102-166, § 101(b); 42 U.S.C. § 1981(b). Both this Circuit and the Eighth Circuit have addressed whether this act should apply retroactively to § 1981 claims that were pending on appeal. at the time of enactment. Both circuits have ruled that the CRA of 1991 does not apply retroactively. Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992). Both Vogel and Fray examine the history of judicial treatment of retroactivity as applied to new legislation. Building upon both Roman civil law and English common law, up to 1969 it was a well-established principle in American jurisprudence that legislation must be applied only prospectively unless the legislature specifically decreed a retroactive application. Fray, 960 F.2d at 1374. However, in Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), and in Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court held that a new statute must be retroactively"
},
{
"docid": "8103956",
"title": "",
"text": "the formation of the employment contract is not actionable under § 1981. The Court, however, recognized that a failure-to-promote claim may be actionable under § 1981, but “[o]nly where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer.” 491 U.S. at 185-86, 109 S.Ct. at 2377. The Civil Rights Act of 1991 overruled the Patterson decision. The defendants acknowledge that the Act greatly expands the coverage of § 1981 and “arguably include^] situations like that in the instant matter that occur after the effective date of the act.” Brief of Appellee at 11. In other words, were Holt to file a claim tomorrow alleging discriminatory conduct by Michigan State Industries occurring after November 21, 1991 — the effective date of the Act — his claim would be viable under § 1981. In this case, however, the employer’s alleged conduct occurred prior to the Act. The defendants thus argue that the Civil Rights Act should not be applied retroactively. Sixth Circuit precedent supports the defendants’ contention. In Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992), this Circuit held that the Civil Rights Act of 1991 does not apply retroactively to conduct that occurred before the Act became law. Id. at 597-89. The Fifth, Seventh and Eighth Circuits have followed suit. See Johnson v. Uncle Ben’s Inc., 965 F.2d 1363 (5th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992). See also Fray, app. at 1383 (listing district courts refusing to apply Act retroactively). Several courts have discussed why the Civil Rights Act of 1991 should not apply to claims arising before and during Patterson’s reign. The courts’ reasoning can be summarized as follows. Courts must first look to the statute itself to determine whether Congress, through the statute, spoke to the issue of retroactivity. “[Wjhere the congressional intent is clear, it governs.” Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990). The"
},
{
"docid": "9610118",
"title": "",
"text": "trial solely on the issue of whether Gannett committed national origin discrimination under the former Title VII. If so, the district court should award appropriate damages. Reversed and Remanded. . In his dissent in this case, Judge Cummings observes that this opinion “all but ignore[s]” the Civil Rights Act of 1991, and instead relies on case law dealing with retroactivity. Cummings, J. dissent at 564-65. The problem, however, is not that we ignore the new Act, but that the new Act avoids the issue of retroactivity. We would have preferred to cite the text of the new Act. But for many reasons expressed in documents other than the statute, Congress chose to be silent on the issue of retroactivity — the issue which the court considers in this opinion. Absent precise language from the new Act, we must rely upon the presumption against retroactivity firmly established in this circuit's case law. . We denied Rehearing and Rehearing En Banc in Luddington on September 4, 1992. . Senior District Judge Frank A. Kaufman (D.Md.), sitting on the original panel by designation, concurred with Judge Cummings’ position. . Other circuits which have considered this issue have concluded overwhelmingly that the new Act does not apply retroactively. See Gersman v. Group Health Ass'n, Inc., 975 F.2d 886 (D.C.Cir.1992); Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.1992), cert. granted, - U.S. --, 113 S.Ct. 1250, 122 L.Ed.2d 649 (1993); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992); Vogel v. Cincinnati, 959 F.2d 594 (6th Cir.), cert. denied, - U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Hicks v. Brown Group, Inc., 982 F.2d 295 (8th Cir.1992) (en banc); Baynes v. AT & T Technologies, 976 F.2d 1370 (11th Cir.1992). Contra, Reynolds v. Martin, 985 F.2d 470 (9th Cir.1993) (concluding that the new Act applies retroactively). .In his dissent. Judge Ripple notes that \"it is a significant judicial diseconomy for this court to proceed to judgment” before the Supreme Court renders its decision in Landgraf. Ripple, J. dissent at"
},
{
"docid": "2701453",
"title": "",
"text": "damages or damages for pain and suffering. The Civil Rights Act of 1991 (“the 1991 Act”), which took effect on November 21, 1991, provides that compensatory damages may be awarded in Title VII actions in some circumstances. See 42 U.S.C. § 1981a(a)(l). It is now the law of this Circuit, however, that the provisions of the 1991 Act should not be applied retroactively. See Butts v. New York City Department of Housing Preservation and Development, 990 F.2d 1397 (2d Cir.1993); see also Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1373-74 (5th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929, 940 (7th Cir.), cert. denied, — U.S. —, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992); Fray v. Omaha World Herald Co., 960 F.2d 1370, 1378 (8th Cir.1992); Vogel v. Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, — U.S. —, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). But see Davis v. San Francisco, 976 F.2d 1536, 1549-56 (9th Cir. 1992) (applying retroactively the portion of the statute governing expert witness fees). Although the 1991 Act cannot be given retroactive effect in this case, the plaintiff may, of course, receive a monetary award for back pay (together with prejudgment interest) if she prevails on her Title VII claims. In addition, the plaintiff may receive compensatory or punitive damages if she prevails on her state law claims. But the plaintiff is not entitled in this action to any damages on the basis of her Title VII claims. For this reason, the defendants’ motion for summary judgment on the plaintiffs claims for damages under Title VII must be granted. II The defendants seek summary judgment on all of the plaintiffs state law claims based on the exclusivity provisions of the Connecticut Workers Compensation Act (“CWCA”), Conn.Gen.Stat. §§ 31-284(a) and 31-293a, and on the preemptive effect of Section 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. I shall consider each of the plaintiffs state law claims in turn. A. Wrongful Discharge and Retaliatory Discharge. The Amended Complaint, which was filed on July 31, 1992, alleges that"
},
{
"docid": "13046172",
"title": "",
"text": "Johnson v. Uncle Ben’s Inc., 965 F.2d 1363 (5th Cir.1992); Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929 (7th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992); but see Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir.1992). We also note that the Equal Employment Opportunity Commission has concluded the Act does not apply retroactively to conduct occurring before the effective date of the Act. EEOC Notice No. 915.002 (December 27, 1991). The judgment of the district court is AFFIRMED. . We address no other kinds of cases, but neither do we imply that the Act would apply retroactively in other circumstances. Having reviewed the record, we also conclude that the remainder of appellant's arguments have no merit. . We have doubts whether Baynes' section 1981 claims were ever properly before the district court. Nonetheless, the magistrate judge appointed by the district court found that \"(Baynes] also appears to bring her claims of retaliatory discharge, racial and sexual harassment, and failure to promote under 42 U.S.C. § 1981.” The magistrate judge recommended, and the district court granted, AT & T’s motion for summary judgment on “(p]laintiff s claims under 42 U.S.C. § 1981.\" Magistrate's Report and Recommendation, March 27, 1990, at 22. Because of this treatment below, we assume, without deciding, that the relevant claims were before the court under section 1981 as well as Title VII. . The judgment that resulted from this court’s application of the Bradley analysis in United States v. Peppertree Apartments was vacated as moot by the Supreme Court. The United States elected not to pursue its rights under the statutory provision this court had held retroactively applicable in that case. See Bailes v. United States, — U.S. -, 112 S.Ct. 2935, 119 L.Ed.2d 561 (1992), vacating 942 F.2d 1555, on remand United States v. Peppertree Apartments, 961 F.2d 1538 (11th Cir.1992). . In Bradley, the Supreme Court relied on the distinction between disputes"
},
{
"docid": "11710354",
"title": "",
"text": "and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate. . See, e.g., Hubbard v. Environmental Protection Agency, 949 F.2d 453, 463 (D.C.Cir.1991) (discussing congressional intent that title VII relief be in equity, recognizing that back pay element of title VII award is part of statutory equitable remedy, and listing consistent cases from other circuits), reh'g en banc granted in part on other grounds, denied in part, 949 F.2d at 475 (D.C.Cir.1992); Ramos v. Roche Prods., 936 F.2d 43, 50 (1st Cir.) (characterizing back pay as equitable and holding that no jury trial is available for title VII claim), cert. denied, — U.S. —, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991). See also Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 572, 110 S.Ct. 1339, 1348, 108 L.Ed.2d 519, 108 L.Ed.2d 504 (1990) (Congress specifically characterized backpay under title VII as a form of equitable relief); Sparrow v. Commissioner, 949 F.2d 434, 438-39 (D.C.Cir.1991) (title VII remedies, including back pay, properly considered equitable), cert. denied, - U.S. -, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992). . See, e.g., Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir.1992) (on petition for rehearing); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992), petition for cert. filed, 60 U.S.L.W. 3881 (U.S. June 11, 1992) (No. 91-2001). . See Kaiser Aluminum & Chem. Corp. v. Bonjomo, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990) (noting apparent conflict between Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), which states that retroactivity is the norm, and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), in which a unanimous Court stated, “Retroactivity is not favored in the law. Thus, congressional"
},
{
"docid": "16203047",
"title": "",
"text": "our prior decisions impels us toward a presumption of prospectivity, we cannot comfortably assert that we are fettered by them to that choice. Thus, the greater weight of authority from the Supreme Court and the existing authority from this Circuit establish that as between the two propositions that statutes presumptively apply to preenactment conduct and that they presumptively apply only to post-enactment conduct, the latter prevails. That is, generally “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.” Bowen, 488 U.S. at 208, 109 S.Ct. at 471. In addition to conforming to the longest and largest line of Supreme Court decisions, this has the obvious salutary result that persons may know when they act the legal consequences of their actions. “ ‘[Retrospective laws are ... generally unjust; and ... neither accord with sound legislation nor with the fundamental principles of the social compact.’ ” Kaiser Aluminum v. Bonjorno, 494 U.S. at 855-56, 110 S.Ct. at 1587 (Scalia, J., concurring) (quoting J. Story, Commentaries on the Constitution, § 1398 (1851)). Nonetheless, that leaves us, as an inferi- or court, with the question of what to do with the presumption stated by Thorpe and Bradley in the highest court. We are not in fact the first circuit to wrestle with this problem. The Fifth, Sixth, Seventh, and Eighth Circuits have already dealt with the question of the retroactivity or prospectivity of the Civil Rights Act of 1991. Fray v. Omaha World Herald Co., 960 F.2d 1370, 1374-78 (8th Cir.1992); Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.1992); Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 934-38 (7th Cir.1992); and Vogel v. Cincinnati, 959 F.2d 594, 597-98 (6th Cir.1992). All have held, as we do, that the Act does not apply retroactively. In our holding, we are informed, as have been three of our sibling circuits, by the Supreme Court’s decision in Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1560, 84 L.Ed.2d 572 (1985)."
},
{
"docid": "16203048",
"title": "",
"text": "Constitution, § 1398 (1851)). Nonetheless, that leaves us, as an inferi- or court, with the question of what to do with the presumption stated by Thorpe and Bradley in the highest court. We are not in fact the first circuit to wrestle with this problem. The Fifth, Sixth, Seventh, and Eighth Circuits have already dealt with the question of the retroactivity or prospectivity of the Civil Rights Act of 1991. Fray v. Omaha World Herald Co., 960 F.2d 1370, 1374-78 (8th Cir.1992); Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.1992); Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 934-38 (7th Cir.1992); and Vogel v. Cincinnati, 959 F.2d 594, 597-98 (6th Cir.1992). All have held, as we do, that the Act does not apply retroactively. In our holding, we are informed, as have been three of our sibling circuits, by the Supreme Court’s decision in Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1560, 84 L.Ed.2d 572 (1985). See Fray, 960 F.2d at 1374; Uncle Ben’s, 965 F.2d at 1374; and Mozee, 963 F.2d at 934. In Bennett, the Supreme Court considered a controversy arising from efforts of the United States Secretary of Education to recover from the state of New Jersey federal grant funds allegedly misused during the years 1970-72. The statute governing the grants, 20 U.S.C. § 241(a) et seq. had been amended in 1978. The Third Circuit had held that standards set by the amendments should apply to determine the propriety of expenditures in previous years. New Jersey Department of Education v. Hufstedler, 724 F.2d 34, 36-37 (1983). The Supreme Court reversed, and in doing so, discussed Bradley. The Court noted that Bradley had held “a statutory provision for attorney’s fees applied retroactively to a fee request that was pending when the statute was enacted.” 470 U.S. at 639, 105 S.Ct. at 1560. The Court further noted the Bradley Court’s recognition of “the general principle that a court must apply the law in effect at the time of its decision...."
},
{
"docid": "20879510",
"title": "",
"text": "Cranch) 103, 110, 2 L.Ed. 49 (1801), quoted in Bradley, 416 U.S. at 717, 94 S.Ct. at 2019. Section 101 of the 1991 Act expands the range of conduct that will violate § 1981. In Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1560, 84 L.Ed.2d 572 (1985), the Supreme Court stated that the Bradley presumption of retroactivity should be limited by the “venerable rule of statutory interpretation ... that statutes affecting substantive rights and liabilities are presumed to have only prospective effect.” In holding that the 1991 Act does not apply retroactively, many circuits have distinguished Bradley, and followed the Georgetown Hospital presumption on this ground. See Gersman, 975 F.2d at 898-99; Baynes, 976 F.2d at 1374-75; Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363, 1374 (5th Cir.1992), petition for cert. filed, 61 U.S.L.W. 3356 (No. 92-737, Sept. 29, 1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 936 (7th Cir.), cert. denied, — U.S. —, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992); Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, — U.S. —, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). We agree. 3. Although we can readily distinguish the Civil Rights Act of 1991 from the statute at issue in Bradley, we also believe that the conflicting presumptions articulated in Bradley and Georgetown Hospital reflect truly divergent lines of authority on the question of statutory retroactivity. We recently reviewed these conflicting precedents in Simmons v. Lockhart, 931 F.2d 1226, 1230 (8th Cir.1991), and concluded: [Where] Congress’s silence is ambiguous ... one must choose between the Bradley and Georgetown Hospital presumptions. The better rule is that of Georgetown Hospital____ [T]he presumption against retroactive application best preserves the distinction between courts and legislatures: the former usually act retrospectively, settling disputes between persons, the latter usually act prospectively, setting the general rules for future conduct. See also Criger v. Becton, 902 F.2d 1348, 1353-54 (8th Cir.1990). Some have argued that the Civil Rights Act of 1991 should nonetheless be given retroactive effect because it is “restorative” legislation — by overruling recent"
},
{
"docid": "2475124",
"title": "",
"text": "Supreme Court’s interpretation of previous legislation thereby returning the law to its previous posture.” Ayers v. Allain, 893 F.2d 732, 754-55 (5th Cir.1990), vacated on other grounds sub nom. United States v. Fordice, — U.S. -, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). Indeed, to hold otherwise with respect to this Act would lead to incongruous results. In the eight Supreme Court cases overruled by the Act, the discriminatory conduct at issue was on average nearly nine years old by the time the case reached the Court, and four of those cases were remanded for further proceedings. We would seriously undermine Congress’ stated intent were we to hold that the decisions it repudiated would live on in the federal courts for another nine years. In sum, we give proper effect to the language of the Civil Rights Act of 1991 by applying it to cases that were pending at the time of its enactment. We thus conclude that the Act entitles Reynolds to receive interest on her back pay award under the Rehabilitation Act. B. In holding as we do, we break ranks with the other circuits that have, decided this issue. See Baynes v. AT & T Technologies, Inc., 976 F.2d 1370 (11th Cir.1992); Gersman v. Group Health Ass’n, Inc., 975 F.2d 886 (D.C.Cir.1992); Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir.), cert. denied — U.S. -, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.), cert. denied — U.S. -, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). We do so in the conviction that the plain language of the Act compels our result. We part with those decisions because they either rely on an administrative agency interpretation or the legislative history of the Act when they should not look beyond the plain text, or because they ignore or misconstrue .that dispositive statutory language. In Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992), the"
},
{
"docid": "18866784",
"title": "",
"text": "not only allow us to rectify an erroneous opinion, it would provide us the opportunity to resolve our own conflicting precedents. II Like the Supreme Court, we have generated a conflicting set of decisions regarding the application of a new statute to cases pending at the date of enactment. Like the Supreme Court, we seem to have placed a premium on discovering “clear” legislative intent in otherwise ambiguous statutes in order to avoid having to address the conflict. As in life, such avoidance leads to problems. The text of the 1991 Civil Rights Act is not clear. In the face of congressional silence, we must determine the general rules regarding presumptive application of statutes to cases pending at the date of enactment. I would grant the petition for rehearing and accept the suggestion that we hear this case en banc. . Every other circuit court to consider the issue has cither rejected retroactive application of the 1991 Act, or follows a previous in-circuit case holding the same: Fifth Circuit: Valdez v. San Antonio Chamber of Commerce, 974 F.2d 592, 595 (5th Cir.1992); Wilson v. Belmont Homes, Inc., 970 F.2d 53, 56 (5th Cir.1992); Landgraf v. USI Film Products, 968 F.2d 427, 432 (5th Cir.1992); Rowe v. Sullivan, 967 F.2d 186, 190 (5th Cir.1992); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992). Sixth Circuit: Holt v. Mich. Dep’t of Corrections, 974 F.2d 771, 774 (6th Cir.1992); Harvis v. Roadway Express, Inc., 973 F.2d 490, 497 (6th Cir.1992); Vogel v. Cincinnati, 959 F.2d 594, 597-98 (6th Cir.1992). Seventh Circuit: Banas v. American Airlines, 969 F.2d 477, 483 (7th Cir.1992); Taylor v. Western & Southern Life Ins. Co., 966 F.2d 1188, 1199 (7lh Cir.1992); Luddington v. Indiana Bell Tel. Co., 966 F.2d 225 (7th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 934-38 (7th Cir.1992). Eighth Circuit: Hicks v. Brown Croup, Inc., 982 F.2d 295 (8th Cir.1992); Huey v. Sullivan, 971 F.2d 1362, 1365 (8th Cir.1992); Partan v. GTE North, Inc., 971 F.2d 150 (8th Cir.1992); Williams v. Valentec Kisco, Inc., 964 F.2d 723, 731 (8th Cir.1992); Valdez"
},
{
"docid": "22463342",
"title": "",
"text": "she was not deprived of any fruits of employment as,a result of the sexual harassment. Her argument that she is entitled to a declaratory judgment for purposes of vindication because she prevailed on the issue of whether sexual harassment occurred must also fail. See LaBoeuf v. Ramsey, 503 F.Supp. 747 (D.Mass.1980) (allowing declaratory judgment for purposes of vindication). USI did not dispute at trial the fact of Landgraf s sexual harassment. The only issues disputed were the propriety of USI’s reaction to the harassment and Landgraf s reason for resigning. Landgraf did not prevail on either of these issues and the district court did not err in refusing to grant a declaratory judgment. V. Finally, we address the question of whether any provisions of the Civil Rights Act of 1991 apply to this case. Two provisions of the Act would affect this case if applicable: the addition of compensatory and punitive damages and the availability of a jury trial. Civil Rights Act of 1991, Pub.L. No. 102-166, §§ 102(a)(1), 102(c), 105 Stat. 1072-73 (1991). We recently addressed the issue of the Act’s retroactivity in Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th Cir.1992), where we joined the other circuit courts which have ruled on the issue in holding that § 101(2)(b) of the Act does not apply to conduct occurring before the effective date of the Act. See Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992). We need not repeat here our discussion of the legislative history of the Act. For the reasons explained in Johnson, we conclude that there is no clear congressional intent on the general issue of the Act’s application to pending cases. We must therefore turn to the legal principles applicable to statutes where Congress has remained silent on their retroactivity. As we noted in Johnson the legal principles surrounding the retroactive application of statutes are somewhat uncertain in light of the Supreme Court’s decisions in Bradley v. Richmond School Board,"
}
]
|
824877 | entitled to discover Plaintiffs’ identities,” (Doc. # 30, at 7), and Plaintiffs argue that no case law cited by Defendants offers a standard for addressing the particular issue of disclosing one’s identity to the opposing party. (See Doc. # 30, at 8-9.) Plaintiffs assert that if Defendants really need to know their identities as this case proceeds, then “the [c]ourt can evaluate this issue through a future motion by Plaintiffs for a protective order under which Plaintiffs’ identities might be revealed to Defendants for limited purposes on a strictly confidential basis.” (Doc. # 30, at 8.) In support of the assertion that Defendants do not need or have the right to learn Plaintiffs’ identities, Plaintiffs cite as persuasive authority REDACTED aff'd in part, vacated in part, 620 F.3d 170 (3d Cir.2010), cert. granted, judgment vacated sub nom. City of Hazleton, Pa. v. Lozano, - U.S. -, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011), and aff'd in part, rev’d in part, 724 F.3d 297 (3d Cir.2013). In Lozano, the court found that the defendant, a municipality whose ordinances were challenged by several plaintiffs including two persons who had “uncertain immigration status,” id. at 505, “d[id] not have a strong need to obtain the identity of the anonymous plaintiffs in order to defend against [the] suit,” id. at 510. In support of its finding, the court cited only Topo v. Dhir, 210 F.R.D. 76, 79 (S.D.N.Y.2002), for its proposition that a plaintiff may | [
{
"docid": "1214867",
"title": "",
"text": "the outcome of the litigation as the legal arguments they raise. In addition, the plaintiffs seeking anonymity here are not public figures, and thus there is scant public need to follow their activities in order to prevent abuse of some public trust. c. Motivation for Seeking Identity The final factor for the court to consider addresses whether the opposition to pseudonyms by counsel, the public, or the press is illegitimately motivated. While we do not find persuasive power in defendant’s argument that learning the identity of the anonymous plaintiffs is necessary to determine whether they have standing to sue, we have no evidence to indicate that defendant adopted this position for illegitimate reasons. We note, however, that federal courts have recognized that inquiries into immigration status can have an in terro-rem, effect, limiting the willingness of plaintiffs to pursue their rights out of fears of the consequences of an exposure of their position. See Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002) (holding that “[c]ourts have generally recognized the in terrorem effect of inquiring into a party’s immigration status when irrelevant to any material claim.”); Zeng Liu v. Donna Karan International, Inc., 207 F.Supp.2d 191, 193 (S.D.N.Y.2002) (finding that disclosing immigration status when not relevant to the case presents a “danger of intimidation [that] would inhibit plaintiffs in pursuing their rights.”). In this case, then, we lack evidence that defendant had illegitimate motives in challenging plaintiffs’ use of anonymity, but recognize the potential intimidation that accompanied that challenge. We find, therefore, that this factor weighs neither for nor against disclosure. In sum, we find that the factors in favor of confidentiality for the plaintiffs who seek to proceed anonymously outweigh those that recommend disclosure. The highly legal nature of the issues here, combined with the intense public interest and strong level of emotion connected with the issue mean that the undocumented immigrants who seek to participate in this action face extraordinary circumstances that require anonymity if they hope to proceed without facing unsupportable burdens. The public’s interest in learning the identity of the litigants does not outweigh the anonymous plaintiffs"
}
]
| [
{
"docid": "1214868",
"title": "",
"text": "a party’s immigration status when irrelevant to any material claim.”); Zeng Liu v. Donna Karan International, Inc., 207 F.Supp.2d 191, 193 (S.D.N.Y.2002) (finding that disclosing immigration status when not relevant to the case presents a “danger of intimidation [that] would inhibit plaintiffs in pursuing their rights.”). In this case, then, we lack evidence that defendant had illegitimate motives in challenging plaintiffs’ use of anonymity, but recognize the potential intimidation that accompanied that challenge. We find, therefore, that this factor weighs neither for nor against disclosure. In sum, we find that the factors in favor of confidentiality for the plaintiffs who seek to proceed anonymously outweigh those that recommend disclosure. The highly legal nature of the issues here, combined with the intense public interest and strong level of emotion connected with the issue mean that the undocumented immigrants who seek to participate in this action face extraordinary circumstances that require anonymity if they hope to proceed without facing unsupportable burdens. The public’s interest in learning the identity of the litigants does not outweigh the anonymous plaintiffs concerns, and defendant can defend itself adequately without information about the anonymous plaintiffs’ identities. Accordingly, we find that the anonymous plaintiffs may proceed without identifying themselves. We note, finally, that we find misplaced defendant’s concern that this court’s acknowledgment of the Doe plaintiffs’ right to proceed anonymously would “recognize” and “affirm” an “interest in evading the laws of the United States.” (Memorandum of Law in Opposition to Plaintiffs’ Cross-Motion for Summary Judgment (Doc. 150) at 107). A venerable principle of constitutional law holds that all persons in the United States have rights under the Fourteenth Amendment to the United States Constitution, whether they are citizens or not. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (holding that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins,"
},
{
"docid": "10141035",
"title": "",
"text": "harm it causes — even if it does not eliminate the preexisting risk.”); Lozano v. City of Hazleton, 620. F.3d 170, 192 (3d Cir. 2010) (“Redressability ... does not require that a court be able to solve all of a plaintiffs woes. Rather, [it] need only be able to redress, to some extent, the specific injury underlying the suit.”), vacated and remanded for further consideration, 563 U.S. 1030, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011), affirmed in part and reversed in part on other grounds, Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013); Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309, 349 (2d Cir. 2009) (agreeing with the plaintiffs that “[e]ven if emissions increase elsewhere, the magnitude of [the plaintiffs’ injuries will be less if [the defendants’ emissions are reduced than they would be without a remedy”), rev’d on other grounds, 564 U.S. 410, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011); Ohio Valley Envtl. Coal., Inc. v. Hobet Mining, LLC, 702 F.Supp.2d 644, 653 (S.D.W. Va. 2010) (“[N]otwithstanding the continued likeli hood of ... pollution ..., obtaining injunc-tive relief would likely increase [the plaintiffs’ aesthetic and recreational enjoyment of the geographic area in question, satisfying redressability.”). Although these cases do not directly address the issue faced here, they are at least consistent with the proposition that a plaintiffs requested equitable relief need not completely eliminate the harm complained of; rather, the requested relief need only, to some extent, decrease the likelihood or magnitude of the hann. Here, the court concludes that the alternative relief requested by the State — such as an injunction prohibiting additional plutonium transfers to SRS and an injunction requiring annual reports meet the redress-ability requirement. The injury of which the State complains is not merely the violation of a federal statute; it is the interest that the statute is designed to protect. The provisions of § 2566 evince a design to insure that, within the deadlines set by Congress, unprocessed plutonium designated for MOX Facility processing either would be processed in specified amounts or else would be reduced through other methods."
},
{
"docid": "10141034",
"title": "",
"text": "v. Valente, 456 U.S. 228, 244 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)). The Court also deemed the fact that other countries .might increase their emissions was of little relevance to the redressability analysis because, “[a] reduction of domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.” Id. at 526,127 S.Ct. 1438. In short, the fact that the risk of injury alleged “would be reduced to some extent if petitioners received the relief they seek” was enough to satisfy the redressability element. Id. Interpreting Massachusetts v. EPA, a number of courts have reached conclusions favoring a more expansive view of-redress-ability than the one advanced by, Defendants. See Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 905 (10th Cir. 2012) (“[Standing is proper where a favorable decision would relieve ‘some extent’ of an injury.”); Amnesty Int’l USA v. Clapper, 667 F.3d 163, 170 (2d Cir. 2011) (“Where a challenged action increases an already extant risk of harm to a plaintiff, the elimination of that action would redress the harm it causes — even if it does not eliminate the preexisting risk.”); Lozano v. City of Hazleton, 620. F.3d 170, 192 (3d Cir. 2010) (“Redressability ... does not require that a court be able to solve all of a plaintiffs woes. Rather, [it] need only be able to redress, to some extent, the specific injury underlying the suit.”), vacated and remanded for further consideration, 563 U.S. 1030, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011), affirmed in part and reversed in part on other grounds, Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013); Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d 309, 349 (2d Cir. 2009) (agreeing with the plaintiffs that “[e]ven if emissions increase elsewhere, the magnitude of [the plaintiffs’ injuries will be less if [the defendants’ emissions are reduced than they would be without a remedy”), rev’d on other grounds, 564 U.S. 410, 131 S.Ct. 2527, 180 L.Ed.2d 435 (2011); Ohio Valley Envtl. Coal., Inc. v. Hobet Mining, LLC, 702 F.Supp.2d 644, 653 (S.D.W. Va. 2010) (“[N]otwithstanding the continued"
},
{
"docid": "1214866",
"title": "",
"text": "of the plaintiffs, but on the legal issues at the heart of the case. We find no evidence of a widespread, much less universal, public interest in the identities of the plaintiffs. The public’s interest in this case is in the right of Hazleton to press forward with its legislation, not in a dispute between the parties. Accordingly, the public’s interest in the identities of the individual plaintiffs is not so strong as to justify the danger of disclosing the identity of plaintiffs with a legitimate fear for the consequences of that disclosure. a. Subject Matter of the Litigation The next factor in favor of disclosure asks whether, because of the subject matter of the litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s normal interest. This factor too does not weigh in favor of disclosure. The subject matter of this litigation is primarily constitutional law, and the identities of the particular plaintiffs are not as important to the outcome of the litigation as the legal arguments they raise. In addition, the plaintiffs seeking anonymity here are not public figures, and thus there is scant public need to follow their activities in order to prevent abuse of some public trust. c. Motivation for Seeking Identity The final factor for the court to consider addresses whether the opposition to pseudonyms by counsel, the public, or the press is illegitimately motivated. While we do not find persuasive power in defendant’s argument that learning the identity of the anonymous plaintiffs is necessary to determine whether they have standing to sue, we have no evidence to indicate that defendant adopted this position for illegitimate reasons. We note, however, that federal courts have recognized that inquiries into immigration status can have an in terro-rem, effect, limiting the willingness of plaintiffs to pursue their rights out of fears of the consequences of an exposure of their position. See Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002) (holding that “[c]ourts have generally recognized the in terrorem effect of inquiring into"
},
{
"docid": "7979349",
"title": "",
"text": "(\"Cavallaro I”), No. 09-40152, 2011 WL 2295023 (D. Mass. June 8, 2011), vacated sub nom., 678 F.3d 1 (1st Cir. 2012), which had been issued the prior day and which had dismissed with prejudice substantially identical claims to those pressed by plaintiffs here. See id. at *6-7. . Plaintiffs could no longer amend as a matter of course under Fed. R. Civ. P. 15(a)(1) because more than twenty-one days had passed since defendants filed their answer. . The court also granted defendants’ motion for judgment On the pleadings as to plaintiffs’ state law claims in. a separate memorandum and order issued that same day. . -Prior to .plaintiffs’ announced refusal to amend on April 12, 2011, there were at least six district court cases dismissing similar FLSA claims filed by plaintiffs’ counsel, at least eight district court cases dismissing similar RICO claims filed by plaintiffs’ counsel, and at least five district court cases dismissing similar ERISA claims filed by plaintiffs’ counsel. See DeSilva, 770 F.Supp.2d at 547-48 (dismissing FLSA, RICO, and ERISA claims); Manning I, 2011 WL 796505, at *3 (same); Sampson v. Medisys Health Network, Inc., No. 10-CV-1342, 2011 WL 579155, at *10 (E.D.N.Y. Feb. 8, 2011) (dismissing FLSA and RICO, claims); Nakahata, 2011 WL 321186, at *3-5 (same); Pruell I, 2010 WL 3789318, at *5 (dismissing FLSA, RICO, and ERISA claims); Wolman v. Catholic Health Sys. of Long Island, No. 10-CV-1326, 2010 WL 5491182, at *7 (E.D.N.Y. Dec. 30, 2010), aff’d in part, rev’d in part sub nom. Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106 (2d Cir. 2013) (dismissing FLSA and RICO claims); Cavallaro v. UMass Mem’l Health Care Inc., No. 09-40152, 2010 WL 3609535, at *1 (July 2, 2010) (dismissing RICO claim); Kuznyetsov v. W. Penn Allegheny Health Sys., Inc., No. 9-379, 2010 WL 597475, at *7 (W.D. Pa. Fob. 16, 2010) (dismissing RICO and ERISA claims); Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2010 WL 235123, at *1 (W.D. Pa. Jan. 11, 2010) (dismissing ERISA claims). We assume plaintiffs- counsel was familiar with these rulings in their other cases."
},
{
"docid": "1215006",
"title": "",
"text": "his case had nothing to do with immigration, but was a civil rights suit based on his treatment in jail. Because plaintiff tried to fool the defendant about who he was, the court rightly concluded that the suit was not instituted in the name of the real party in interest. Here, plaintiffs are not trying to mislead the court or the defendant about who they are. They acknowledge that the pseudonyms are not their real names. We note as well that the case that defendant cites to argue that we may raise plaintiff's failure to comply with Rule 17(a) sue sponte nowhere mentions that Rule. See Doe v. United States Dep’t of Justice, 93 F.R.D. 483 (D.Colo.1982). Indeed, the judge in that case did not act sua sponte, but only after both parties filed motions, the plaintiff to proceed anonymously and the defendant for a more definite statement that included the name of the plaintiff. Id. at 483. Accordingly, we find that Rule 17(a) does not apply to the plaintiff's efforts to proceed anonymously. . We agree with the defendant that plaintiffs should have sought formal leave of the court to proceed anonymously. Such failure is not grounds to grant a procedural default to the defendant because we addressed this issue at a preliminary stage of the litigation and no prejudice has occurred to the defendant. Early in the discovery period, plaintiffs sought a protective order from this court directing the defendant not to request information from the Doe plaintiffs that revealed their identities or immigration status. (See Motion for Protective Order (Doc. 65)). Defendant offered various reasons why such an order was inappropriate, including an argument that “[n]u-merous federal precedents establish clearly that anonymity may not be utilized to avoid disclosure of the identity of ah illegal alien.\" (Brief in Opposition to Motion for a Protective Order (Doc. 67) at 1). After considering these arguments, we granted this motion for a protective order on December 15, 2006. That protective order reads: \"The John or Jane Doe Plaintiffs in this proceeding do not have to produce, or otherwise respond to"
},
{
"docid": "11124273",
"title": "",
"text": "On Remand from the United States Supreme Court OPINION OF THE COURT McKEE, Chief Judge. This case is before us on remand from the United States Supreme Court. The City of Hazleton previously appealed the District Court’s judgment permanently enjoining enforcement of two Hazleton ordinances that attempt to prohibit employment of unauthorized aliens and preclude them from renting housing within the City. In a precedential Opinion and Judgment filed on September 9, 2010, we upheld the permanent injunction. Thereafter, the Supreme Court granted Hazleton’s petition for a writ of certiorari and remanded this case so that we could reconsider our analysis in light of Chamber of Commerce v. Whiting, 563 U.S.-, 131 S.Ct. 1968, 179 L.Ed.2d 1031 (2011). See City of Hazleton v. Lozano, 563 U.S.-, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011). Subsequently, the Court also decided Arizona v. United States, 567 U.S.-, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). Both Whiting and Arizona address the extent to which federal immigration law preempts various state laws pertaining to the treatment of unauthorized aliens. On remand, we asked for supplemental briefing on whether either of those decisions alter our original analysis upholding the District Court’s injunction. Having thoroughly considered the additional submissions of the parties and the Court’s decisions in Whiting and Arizona, we again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again affirm the District Court’s order enjoining enforcement of these provisions. I. BACKGROUND The factual and procedural background underlying this case have been extensively described in the District Court’s decision, Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D.Pa.2007) (“Lozano I”), and our earlier decision, Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir.2010) (“Lozano II”), vacated and remanded, — U.S. -, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011). Accordingly, we need not reiterate that history as thoroughly as we otherwise would. However, context and clarity require that we first set forth those facts underlying our analysis on remand. This litigation involves a series of immigration ordinances enacted by the City of Hazleton"
},
{
"docid": "1214859",
"title": "",
"text": "of such undocumented plaintiffs are based not on the specific facts of each undocumented plaintiffs legal status, but instead on the notion that plaintiffs who are not legally in the United States cannot be injured by the ordinances. The information provided by the anonymous plaintiffs about their immigration status gives the defendant all the information necessary to make this standing claim. Indeed, plaintiffs have expressed a legitimate fear that exposing their names could lead to adverse legal consequences that go beyond the public disapprobation they face. If threats of exposure of one’s legal status can intimidate plaintiffs and prevent them from participating in a lawsuit, the defendant’s own statements and actions have added weight to these fears. During discovery in this case, the parties disagreed over whether the anonymous plaintiffs should be required to turn over immigration documents to the defendant. After a telephone conference, this court ordered the parties to enter into a confidentiality agreement to protect the identities of the Doe plaintiffs. (See Order (Doc. 63)). After the court issued this order, plaintiffs informed us that a local newspaper had quoted defendant’s attorney, who claimed that the order violated 8 U.S.C. § 1373(c) by preventing the city from turning over to the federal government information on the plaintiffs immigration status. See Munley’s IIRA Order Violates Federal Law, Attorney Says, Standard Speaker, December 13, 2006 (attached to Motion for a Protective Order (Doc. 64)). The federal law “says no government entity, federal, state or local, may in any way restrict the transfer of information concerning an alien’s legal status to the federal government,” Hazleton’s attorney asserted. (Id.). The attorney expressed “surprise” at the order, which he claimed “violates federal law.” (Id.). Plaintiffs informed us of these statements as part of their motion seeking a protective order preventing disclosure of their identities and immigration status. Given these public statements and court filings, plaintiffs could legitimately fear that defendant was determined to expose their legal status to federal authorities. Such fears could cause plaintiffs to abandon their attempt to secure rights guaranteed them under federal law. We conclude, therefore, that plaintiffs"
},
{
"docid": "21012601",
"title": "",
"text": "will not be hampered or inconvenienced merely by plaintiffs anonymity in court papers. Indeed, defendants already know plaintiffs true identity. See Aware Woman Center, 253 F.3d at 687 (no prejudice where plaintiff offered to disclose her name to defendant); EW, 213 F.R.D. at 112; Smith, 105 F.Supp.2d at 44-45. In any event, since there are two other plaintiffs in this Court alleging similar conduct who will be proceeding under their real names, defendants will have an unfettered opportunity to present their defenses and to challenge the credibility of these accusers. Finally, the restrictions contained in this order only apply to the discovery period and may be reconsidered if this case goes to trial. See Smith, 105 F.Supp.2d at 45. In balancing the relevant factors, this Court finds that plaintiff has established special circumstances to warrant authorization to proceed anonymously. Protective Order Defendants challenge the Protective Order entered by this Court pending resolution of the motion to proceed anonymously. A party may obtain discovery of any non-privileged matter that is relevant to a claim or defense of any party. Fed. R.Civ.P. 26(b)(1). However, a district court may limit discovery “for good cause shown” by making “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including that the discovery not be had or that it be had only by a method other than that selected by the party seeking discovery. Fed.R.Civ.P. 26(c). “The burden of persuasion in a motion ... for a protective order is borne by the movant.” Jones v. Hirschfeld, 219 F.R.D. 71, 74-75 (S.D.N.Y.2003) (citing Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir.1992)). To establish good cause, a party must show that disclosure will result in a specific injury. See In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 221-22 (S.D.N.Y.2006); Wiwa v. Royal Dutch Petroleum Co., No. 96 CIV. 8386, 2006 WL 2724024, at *1 (S.D.N.Y. Sept.22, 2006); but see Topo v. Dhir, 210 F.R.D. 76, 77-78 (S.D.N.Y.2002) (“specificity requirement” does not apply to private individuals). As discussed above, plaintiff has articulated"
},
{
"docid": "1214850",
"title": "",
"text": "The record provides no indication that plaintiffs have waived their claim on anonymity by allowing others to discover their true names. This factor weighs in favor of plaintiffs’ attempt to proceed anonymously. b. Bases for Request of Anonymity Second, courts evaluate the bases for the claim that anonymity is necessary and the legitimacy of those bases. Here, plaintiffs seek to avoid disclosure of their identities because they fear the consequences of such public knowledge and are concerned that defendant may disclose their names to federal immigration authorities. The plaintiffs argue that they have “stated legitimate concerns that the public identification of the Doe Plaintiffs, amidst this highly publicized and controversial lawsuit, would make them easy targets of intense anti-immigrant and anti-Latino sentiment.” (Brief in Opposition to Defendant’s Motion to Dismiss (Doc. 106) at 97). Plaintiffs also contend that such disclosure may affect “their basic rights to shelter, education, and a livelihood.” {Id. at 99). We find these compelling reasons for allowing plaintiffs to proceed anonymously. In Jane Doe 1 v. Merten, the Federal District Court for the Eastern District of Virginia refused to allow plaintiffs who sought to challenge a Virginia law that prevented illegal immigrants from obtaining admission to state colleges and Universities to proceed anonymously. 219 F.R.D. 387 (E.D.Va.2004). The students had claimed: “[I]f they are required to reveal their identities, the federal government will seek to deport them or their families and they will thus likely decide not to proceed with this suit, effectively rendering them unable to vindicate their rights in this matter.” Id. at 390. Defendant cites to this case to support its argument that plaintiffs should be required to reveal their identities, in part because the court in that case found that the plaintiffs seeking to proceed anonymously did not have a strong interest in keeping information about their immigration status confidential. The court in Merten concluded that “unlawful or problematic immigration status is simply not the type of ‘personal information of the utmost intimacy’ that warrants abandoning the presumption of openness in judicial proceedings.” Id. We find that the facts and context of"
},
{
"docid": "1214860",
"title": "",
"text": "informed us that a local newspaper had quoted defendant’s attorney, who claimed that the order violated 8 U.S.C. § 1373(c) by preventing the city from turning over to the federal government information on the plaintiffs immigration status. See Munley’s IIRA Order Violates Federal Law, Attorney Says, Standard Speaker, December 13, 2006 (attached to Motion for a Protective Order (Doc. 64)). The federal law “says no government entity, federal, state or local, may in any way restrict the transfer of information concerning an alien’s legal status to the federal government,” Hazleton’s attorney asserted. (Id.). The attorney expressed “surprise” at the order, which he claimed “violates federal law.” (Id.). Plaintiffs informed us of these statements as part of their motion seeking a protective order preventing disclosure of their identities and immigration status. Given these public statements and court filings, plaintiffs could legitimately fear that defendant was determined to expose their legal status to federal authorities. Such fears could cause plaintiffs to abandon their attempt to secure rights guaranteed them under federal law. We conclude, therefore, that plaintiffs have offered good and compelling reasons for not revealing their identities. The second factor, then, weighs heavily in favor of anonymity. c. Magnitude of the Public Interest Involved in Maintaining Confidentiality The third factor, the magnitude of the public’s -interest in maintaining the confidentiality of the litigants’ identities, also weighs in the anonymous plaintiffs’ favor. Hazleton’s ordinances have become the subject of wide public debate, and has also served as a model for other communities seeking to act against what they perceive to be the problem of illegal immigration. See Anabelle Garay, Attempts to Curb Illegal Immigration Prove Costly, Washing ton Post, May 6, 2007, at A12 (reporting that “[d]ozens of cities and counties have proposed or passed laws that prohibit landlords from leasing to illegal immigrants, penalize businesses that employ undocumented workers or train police to enforce federal immigration laws.”). The public has an interest in determining the constitutionality of ordinances like the one passed in Hazleton, and particularly in determining whether such ordinances violate the constitutional rights of immigrants who lack authorization to"
},
{
"docid": "1214857",
"title": "",
"text": "Hazleton-based Spanish-language newspaper, attempted to cover the event for his publication. Id.' Arroyo, an American citizen, is not involved in the lawsuit against the City. Id. Several members of the crowd at the rally began to shout at Arroyo after a rumor circulated that he was one of the plaintiffs in the lawsuit against the ordinances. Id. Confronting Arroyo, a few rally participants shouted at him to “ ‘get out of the country’ ” while others chanted “ ‘traitor.’ ” Id. Police escorted Arroyo from the rally for his own protection. Id. We find that this record of hostility to the plaintiffs in the lawsuit and the climate of fear and hostility surrounding the debate over the ordinances creates a justified fear about revealing the anonymous plaintiffs’ identities. Dr. Lopez and Mr. Arroyo faced public condemnation and\" confrontation based on their real or perceived participation in the lawsuit, and they are United States citizens. Those with a more tenuous legal status have an exponentially greater concern over the dangers of participating in a lawsuit that has generated such intense sentiment. In addition, we find that the defendant does not have a strong need to obtain the identity of the anonymous plaintiffs in order to defend against plaintiffs’ suit, thus adding to the reasonableness of plaintiffs’ request to keep their identity anonymous. Plaintiffs seek to keep their identities private largely because of their problematic immigration status; they fear the consequences of a public admission of unauthorized residence and employment in the United States. Courts have concluded that plaintiffs may refuse to turn over information on their immigration status when that status is not relevant to the lawsuit. See Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002). Here, defendant has claimed to need information on the unnamed plaintiffs’ immigration status in order to determine whether they have standing to bring suit in the case. Plaintiffs have admitted that they lack legal authorization for their presence and employment in the country, and defendant therefore has all the information necessary to challenge the anonymous plaintiffs’ presence in the suit. Defendant’s arguments about the standing"
},
{
"docid": "11124274",
"title": "",
"text": "remand, we asked for supplemental briefing on whether either of those decisions alter our original analysis upholding the District Court’s injunction. Having thoroughly considered the additional submissions of the parties and the Court’s decisions in Whiting and Arizona, we again conclude that both the employment and housing provisions of the Hazleton ordinances are pre-empted by federal immigration law. Accordingly, we will again affirm the District Court’s order enjoining enforcement of these provisions. I. BACKGROUND The factual and procedural background underlying this case have been extensively described in the District Court’s decision, Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D.Pa.2007) (“Lozano I”), and our earlier decision, Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir.2010) (“Lozano II”), vacated and remanded, — U.S. -, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011). Accordingly, we need not reiterate that history as thoroughly as we otherwise would. However, context and clarity require that we first set forth those facts underlying our analysis on remand. This litigation involves a series of immigration ordinances enacted by the City of Hazleton between July 2006 and March 2007. The two ordinances at issue are: (1) the Illegal Immigration Relief Act Ordinance (“IIRAO”), which consists of Ordinance 2006-18, as amended by Ordinance 2006-40, and Ordinance 2007-6; and (2) the Rental Registration Ordinance (“RO”), which consists of Ordinance 2006-13. These ordinances attempt to regulate the employment of unauthorized aliens, and the provision of rental housing to aliens lacking lawful immigration- status, within Hazleton. The relevant employment provisions make it unlawful for any person “to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct” any person without work authorization “to perform work in whole or in part within the City.” IIRAO § 4A. The IIRAO also provides for public monitoring and prosecution, and sanctions violators by suspending their business permits. Id. § 4B. “Safe harbor” from the IIRAO’s sanctions is available for businesses that verify work authorization using the federal E-Verify program. Id. § 4B(5). The IIRAO also requires City agencies and certain businesses to enroll in the E-Verify program. Id. §§ 4B(6)(b), 4C,"
},
{
"docid": "14997057",
"title": "",
"text": "pseudonyms to conceal a plaintiffs identity has no explicit sanction in the federal rules,” the Supreme Court has “given the practice implicit recognition.” 527 F.3d at 371 n. 2. We thus concluded that “the decision whether to allow a plaintiff to proceed anonymously rests within the sound discretion of the court.” Id. In deciding whether to permit those Plaintiffs with concerns about the legality of their immigration status to proceed anonymously, the district court surveyed case law within this Circuit and identified nine separate factors courts have used to decide whether anonymity is appropriate. See Lozano, 496 F.Supp.2d at 506. The court then engaged in a thorough analysis of each of these factors, and concluded that the factors favoring anonymity outweighed those favoring disclosure. Specifically, the court found that ethnic tensions had escalated in Hazleton since enactment of the ordinances, and that the named Plaintiffs had been harassed and intimidated for their involvement in this litigation. See id. at 508-10. The court concluded that the Doe Plaintiffs, because of their unlawful status, would face an “exponentially greater” risk of harassment, and even physical danger, if their identities were revealed. Id. at 510. The court also noted that the litigation was in the public interest, and reasoned that the Doe Plaintiffs, as well as prospective litigants lacking lawful status, would be deterred from bringing cases clarifying constitutional rights, if doing so required alerting federal immigration authorities to their presence. See id. at 511-12. Finally, the court explained that because the Doe Plaintiffs’ identity information was not central to their claims, restricting Hazleton’s access to that information would not be prejudicial. See id. at 513. We agree with each of these conclusions, and think it clear that given the environment in Hazleton following enactment of these ordinances, the court did not abuse its discretion in permitting the Doe Plaintiffs to proceed using pseudonyms. Relatedly, Hazleton also argues that the district court violated 8 U.S.G. § 1373(a) by entering an order prohibiting the parties from disclosing “information obtained during discovery regarding the John and Jane Doe plaintiffs.” J.A. 211. Section 1373(a) provides: Notwithstanding"
},
{
"docid": "1214858",
"title": "",
"text": "has generated such intense sentiment. In addition, we find that the defendant does not have a strong need to obtain the identity of the anonymous plaintiffs in order to defend against plaintiffs’ suit, thus adding to the reasonableness of plaintiffs’ request to keep their identity anonymous. Plaintiffs seek to keep their identities private largely because of their problematic immigration status; they fear the consequences of a public admission of unauthorized residence and employment in the United States. Courts have concluded that plaintiffs may refuse to turn over information on their immigration status when that status is not relevant to the lawsuit. See Topo v. Dhir, 210 F.R.D. 76, 78 (S.D.N.Y.2002). Here, defendant has claimed to need information on the unnamed plaintiffs’ immigration status in order to determine whether they have standing to bring suit in the case. Plaintiffs have admitted that they lack legal authorization for their presence and employment in the country, and defendant therefore has all the information necessary to challenge the anonymous plaintiffs’ presence in the suit. Defendant’s arguments about the standing of such undocumented plaintiffs are based not on the specific facts of each undocumented plaintiffs legal status, but instead on the notion that plaintiffs who are not legally in the United States cannot be injured by the ordinances. The information provided by the anonymous plaintiffs about their immigration status gives the defendant all the information necessary to make this standing claim. Indeed, plaintiffs have expressed a legitimate fear that exposing their names could lead to adverse legal consequences that go beyond the public disapprobation they face. If threats of exposure of one’s legal status can intimidate plaintiffs and prevent them from participating in a lawsuit, the defendant’s own statements and actions have added weight to these fears. During discovery in this case, the parties disagreed over whether the anonymous plaintiffs should be required to turn over immigration documents to the defendant. After a telephone conference, this court ordered the parties to enter into a confidentiality agreement to protect the identities of the Doe plaintiffs. (See Order (Doc. 63)). After the court issued this order, plaintiffs"
},
{
"docid": "11124376",
"title": "",
"text": "as the “Home Rule Charter and Optional Plans Law”, and all other laws enforceable the State of Pennsylvania. . For reasons explained in Lozano v. City of Hazleton, 620 F.3d 170, 176 n. 1 (3d Cir. 2010) (”Lozano II\"), vacated and remanded, 563 U.S. -, 131 S.Ct. 2958, 180 L.Ed.2d 243 (2011), we will use the term “unauthorized alien” when discussing issues of employment, and we will use either \"aliens not lawfully present” or \"aliens lacking lawful immigration status” when referring to persons who are not legally in this country. . The full text of the IIRAO and RO are set forth as an Appendix to Lozano II, 620 F.3d at 224-38. For convenience, we again attach the full text of these ordinances as an Appendix to this opinion. . \"E-Verify is an internet-based system that allows an employer to verify an employee’s work-authorization status. An employer submits a request to the E-Verify system based on information that the employee provides---- In response to that request, the employer receives either a confirmation or a tentative nonconfirmation of the employee’s authorization to work.” Chamber of Commerce v. Whiting, - U.S. -, 131 S.Ct. 1968, 1975, 179 L.Ed.2d 1031 (2011) (internal quotation marks and citations omitted). For a more complete description of the E-Verify program, including its evolution and history, see Whiting, 131 S.Ct. at 1986. .The District Court dismissed Plaintiffs' Equal Protection, Fair Housing Act, privacy, and Pennsylvania Landlord and Tenant Act claims. Those portions of the District Court's ruling were not appealed. .We first held that at least one Plaintiff had standing to challenge the employment and housing provisions of the Hazleton ordinances generally, but no Plaintiff had standing to challenge a severable private cause of action provision in the IIRAO. Lozano,II, 620 F.3d at 184-94. We also held that certain Plaintiffs . could proceed anonymously and that the confidentiality agreement between the parties did not violate 8 U.S.C. § 1373(a). Id. at 194-96. In addition, we concluded that Hazleton had waived any issues of severability except with respect to the private cause of action provision. Id. at 182. Hazleton"
},
{
"docid": "7979332",
"title": "",
"text": "I”), No. 09-11463, 2011 WL 796505 (D. Mass. Feb. 28, 2011), aff'd in part, vacated in part, remanded, 725 F.3d 34 (1st Cir. 2013), which dismissed a virtually identical complaint based in part on its failure to identify which defendant the named plaintiffs worked for, id. at *1. Defense counsel also cited Nakahata v. New York-Presbyterian Healthcare System, Inc., No. 10 Civ. 2661, 2011 WL 321186 (S.D.N.Y. Jan. 28, 2011), aff'd in part, vacated in part, remanded, 723 F.3d 192 (2d Cir. 2013), which found another substantially similar complaint to be deficient because of its “failure to specify which entity, among the many named defendants, employed the respective plaintiffs,” id. at *4. Second, the letter urged plaintiffs’ counsel to dismiss their RICO and ERISA claims, which defense counsel contended were “unfounded.” As support, defense counsel cited seven district court cases dismissing identical RICO .claims, including three District of Massachusetts cases, and two district court cases dismissing identical ERISA claims, including Manning I, in which the court found that the plaintiffs’ ERISA claims “fail[edj as a matter of law,” 2011 WL 796505, at *2. Third, the letter requested that plaintiffs’ counsel amend and replead the FLSA claims to comply with Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Defense counsel warned plaintiffs’ counsel that other district courts had dismissed nearly identical claims, citing Manning I, which described the dismissed complaint as an “aggregation of conclusory statements and general allegations,” 2011 WL 796505, at *2; Pruell v. Caritas Christi (“Pruell I”), No. 09-11466, 2010 WL 3789318 (D. Mass. Sept. 27, 2010), which dismissed the plaintiffs’ FLSA claims for failing to allege the plaintiffs’ weekly wages and hours worked or even that the plaintiffs worked more than forty hours per week, id. at *3; and DeSilva v. North Shore-Long Island Jewish Health System, Inc., 770 F.Supp.2d 497 (E.D.N.Y. 2011), which dismissed the plaintiffs’ FLSA claims for failing to satisfy the “minimal burden” of providing “some approximation of the overtime hours that [plaintiffs]"
},
{
"docid": "7979331",
"title": "",
"text": "contemplated settlement could not account for potential disparities in the damages suffered by class members. Several months later, the district court rejected an amended settlement proposal on March 9, 2011, reiterating its concern regarding class conflict and stating that it could not find the proposed settlement to be fair, adequate, and reasonable. The plaintiffs were thus on notice of potential problems as to the certification of a putative class based on their pleadings. Settlement negotiations broke down after the district court’s second ruling. On April 1, 2011, defense counsel sent a letter to plaintiffs’ counsel with a number of requests, three of which related to plaintiffs’ federal claims as stated in their complaint. First, defense counsel insisted that plaintiffs’ counsel dismiss all defendants, remove references in the complaint to “Health Centers” and “Affiliates” that did not employ any of the named' plaintiffs, and file an amended complaint containing allegations sufficient to establish employment relationships between the named plaintiffs and each defendant. To support this request, defense counsel cited Manning v. Boston Medical Center Corp. (“Manning I”), No. 09-11463, 2011 WL 796505 (D. Mass. Feb. 28, 2011), aff'd in part, vacated in part, remanded, 725 F.3d 34 (1st Cir. 2013), which dismissed a virtually identical complaint based in part on its failure to identify which defendant the named plaintiffs worked for, id. at *1. Defense counsel also cited Nakahata v. New York-Presbyterian Healthcare System, Inc., No. 10 Civ. 2661, 2011 WL 321186 (S.D.N.Y. Jan. 28, 2011), aff'd in part, vacated in part, remanded, 723 F.3d 192 (2d Cir. 2013), which found another substantially similar complaint to be deficient because of its “failure to specify which entity, among the many named defendants, employed the respective plaintiffs,” id. at *4. Second, the letter urged plaintiffs’ counsel to dismiss their RICO and ERISA claims, which defense counsel contended were “unfounded.” As support, defense counsel cited seven district court cases dismissing identical RICO .claims, including three District of Massachusetts cases, and two district court cases dismissing identical ERISA claims, including Manning I, in which the court found that the plaintiffs’ ERISA claims “fail[edj as a"
},
{
"docid": "17327241",
"title": "",
"text": "enforcement officer, and a non-witness third party. Vaughn index No. 2. At the August 28, 1987 hearing, defendant noted that the document obtained by plaintiffs is “somewhat different in text and is completely different in typeset” from the document labelled 151 that is attached to Vaughn index No. 2. Transcript at 40. Defendant also stated that Doc. 151 was never disclosed by OSI or DOJ: To our knowledge, the document that we have in our files, a similar document to which plaintiffs have obtained, has never been released by the Office of Special Investigations voluntarily or by the Justice Department to any third parties outside the U.S. Government. Id. at 39. Defendant stresses that plaintiffs offer no authority for the proposition that a person’s privacy interests under Exemption 7(C) are waived for all purposes once his identity has been learned by some other means. Reply Memorandum in Support of Defendant’s Second Motion for Partial Summary Judgment (“Defendant’s 2d Reply”) at 16-17. Indeed, Weisberg is authority to the contrary. See Weisberg, 745 F.2d at 1491. In Weisberg, the Court of Appeals ruled that the fact that plaintiffs were able to piece together the identities of FBI informants by relying on media reports and even disclosures by the FBI itself did not undermine the privacy interests of those individuals under Exemption 7(C). Id. If any public leak or disclosure were sufficient to obliterate the protection offered by Exemption 7(C), unauthorized disclosures would be encouraged and rewarded. In this case, the fact that plaintiffs have obtained a document virtually identical to defendant’s Doc. 151 does not undermine the privacy interests defendant seeks to protect. Nor does the fact that Boraks testified in the Demjanjuk criminal trial in Israel foreclose withholding of his name under FOIA Exemption 7(C). See Scherer v. Kelley, 584 F.2d 170, 176 n. 7 (7th Cir.1978), cert. denied sub nom. Scherer v. Webster, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778 (1979). Accordingly, for the reasons stated in Section 111(2) of this Memorandum, the names deleted by defendant in Doc. 151 are exempt from disclosure under 5 U.S.C. §"
},
{
"docid": "1214851",
"title": "",
"text": "for the Eastern District of Virginia refused to allow plaintiffs who sought to challenge a Virginia law that prevented illegal immigrants from obtaining admission to state colleges and Universities to proceed anonymously. 219 F.R.D. 387 (E.D.Va.2004). The students had claimed: “[I]f they are required to reveal their identities, the federal government will seek to deport them or their families and they will thus likely decide not to proceed with this suit, effectively rendering them unable to vindicate their rights in this matter.” Id. at 390. Defendant cites to this case to support its argument that plaintiffs should be required to reveal their identities, in part because the court in that case found that the plaintiffs seeking to proceed anonymously did not have a strong interest in keeping information about their immigration status confidential. The court in Merten concluded that “unlawful or problematic immigration status is simply not the type of ‘personal information of the utmost intimacy’ that warrants abandoning the presumption of openness in judicial proceedings.” Id. We find that the facts and context of this case lead to a different assessment of the nature of information about one’s immigration status. Unlike Merten, where plaintiffs were seeking admission to state colleges and universities, the plaintiffs in this case do not seek to receive any goods provided by the state. Further, their immigration status does not determine whether they will be subject to the terms of the ordinance. Accordingly, the individual identities and interests of the plaintiffs are not at issue in this case to the degree they were in Merten and are not necessary to reach the issues of constitutionality raised by the lawsuit. The intense public interest in this case makes the risks from exposing sensitive information about one’s identity exponentially more dire than in Merten and make more persuasive plaintiffs’ reasons for seeking to proceed without revealing their true names. The manner in which public interest has manifested itself in this case demonstrates why anonymity is necessary for plaintiffs who lack a legal immigration status. Trial testimony indicated the intense public interest in the ordinances led at times"
}
]
|
592461 | Hostile Work Environment claim, an employer will be held liable for a hostile work environment in the workplace when the employer knows of the hostile work environment but fails to take appropriate remedial steps. See Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir.2009) (“Despite offering a reasonable avenue of complaint to plaintiff, employer defendants can still be held liable if plaintiff can show that they ‘knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.’ ”) (quoting Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000)). The Court analyzes whether an employer’s remedial actions were sufficient based on the totality of the circumstances. Id. (citing REDACTED In the present case, the record indicates that the Plaintiff was called a sexually explicit and derogatory term in the workplace in front of multiple supervisors as well as several employees, but Allback was never suspended or reprimanded for this behavior. There is also evidence that, although the Plaintiff was suspended without pay for three days after Allback’s accusations regarding her unwanted sexual contact, these charges were eventually dismissed in their entirety and her suspension was reversed. Nevertheless, Allback was not disciplined in any way for making these false allegations. There is also evidence that Milone simply dismissed the Plaintiffs complaints, telling her to “shrug it off.” The Court finds that this evidence may demonstrate that Town knew, or in | [
{
"docid": "23019047",
"title": "",
"text": "on the issue of whether there was a hostile work environment. B. Imputation of Knowledge to the Employer Because the district court decided that summary judgment in favor of Perkin Elmer was appropriate on the hostile work environment issue, it never ruled on Perkin Elmer’s argument that it was entitled to summary judgment on the basis that the hostile work environment could not be imputed to the company. We turn to that issue. Once a plaintiff has established the existence of a hostile workplace, she must then demonstrate that the harassing conduct “which created the hostile situation should be imputed to the employer.” Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 63 (2d Cir.1992). When the harasser is a supervisor, the employer is presumed to be absolutely liable. See Faragher v. City of Boca Raton, — U.S.-,-, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d 662 (1998) (“An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.”); Burlington Indus. v. Ellerth, — U.S.-,-, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998) (same). However, when the harassment is attributable to a co-worker, rather than a supervisor, as is the ease here, the employer will be held liable only for its own negligence. See Faragher, — U.S. at-, 118 S.Ct. at 2290-92. Therefore, Perkin Elmer will only be liable if Distasio can demonstrate that the company “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995). Under Title VII, an employer need not have actual knowledge of the harassment; an employer is considered to have notice of sexual harassment if the employer — or any of its agents or supervisory employees' — knew or should have known of the conduct. See Murray, 57 F.3d at 249. The question of when an official’s actual or constructive knowledge will be imputed to the employer is determined by agency principles. See Torres v. Pisano,"
}
]
| [
{
"docid": "11553034",
"title": "",
"text": "difficult question of whether TSH should be legally liable for the harassment. Wc have held that an employer may be responsible for sexual harassment based upon the acts of nonemployees. Lockard, 162 F.3d at 1073 (restaurant responsible for acts of customers); see also Crist, 122 F.3d at 1108 (group home liable for acts of mentally incapacitated resident); 29 C.F.R. § 1604.11(e) (employer may be responsible for acts of non-employee where employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action”). To protect against imposing strict liability upon employers, we apply a negligence analysis, asking whether the organization “failfed] to remedy or prevent a hostile or offensive work environment of which management-level employees knew, or in the exercise of reasonable care should have known.” Lockard, 162 F.3d at 1074, citing Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 577 (10th Cir.1990); 29 C.F.R. § 1604.11(e) (employer liable if “fails to take immediate and appropriate corrective action”). The focus is not on the conduct itself but on the employer’s behavior in response; a hospital cannot control every act of its patients, but it does control the environment at large. Crist, 122 F.3d at 1110-12. The negligence analysis can be divided into two separate inquiries, looking “first, into the employer’s actual or constructive knowledge of harassment, and second, into the adequacy of the employer’s remedial and preventative responses.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673 (10th Cir.1998). With regard to knowledge, a plaintiff may prove actual knowledge based on her reports of harassment to management-level employees or constructive knowledge based on the pervasiveness of the sexual hostility within the working environment. Id. While Dr. Turnbull made no complaints about James Stout in particular prior to the attack, she spoke about general safety concerns with her supervisors on multiple occasions, even bringing those concerns to the hospital’s Executive Committee. Trial testimony established that the atmosphere of sexual hostility at the hospital was pervasive. Indeed, part of TSH’s defense is that the dangers were so obvious that employees knowingly assumed those risks through their"
},
{
"docid": "20657089",
"title": "",
"text": "that the error was prejudicial in light of the charge as a whole.” Japan Airlines Co. v. Port Auth. of N.Y. & N.J., 178 F.3d 103, 110 (2d Cir.1999). “A jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 153 (2d Cir.1997). We will not require a new trial “[i]f the instructions, read as a whole, presented the issues to the jury in a fair and evenhanded manner.” Lore v. City of Syracuse, 670 F.3d 127, 156 (2d Cir.2012). The asserted error in this case concerns the court’s instructions on the standard for employer liability in a hostile work environment claim. It is the plaintiffs burden to establish that the discriminatory conduct may be imputed to the employer. See, e.g., Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir.2013). To succeed in that endeavor, the plaintiff can demonstrate that a supervisor used his or her authority “to further the creation of a discriminatorily abusive working environment,” Perry, 115 F.3d at 153, or that the employer knew or reasonably should have known about harassment by non-supervisory co-workers, “yet failed to take appropriate remedial action,” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.2009) (internal quotation marks omitted). The appropriateness of an employer’s remedial action must “be assessed from the totality of the circumstances.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir.1998). The defendants contend that the district court’s instructions would have led the jury to conduct a different, and legally unsound, inquiry. The court instructed the jury that when a non-supervisory coworker creates a hostile work environment, the employer will be liable only if the plaintiff proves that his “supervisor or successively higher authority knew ... or should have known ... of the hostile or abusive work environment and permitted it to continue by failing to take remedial action.” 13 Trial Tr. 121-22. The defendants argue that this instruction would have allowed the jury to hold the company liable if any single supervisor"
},
{
"docid": "22113631",
"title": "",
"text": "by plaintiff that other co-workers told her of certain harassing statements likely inadmissible to prove that the statements were actually made). Accordingly, on this appeal we did not consider those allegations that may constitute hearsay because we found sufficient admissible evidence to preclude summary judgment. See id. at 156 (disregarding hearsay statements but finding sufficient admissible evidence to prevent summary dismissal of plaintiffs hostile work environment claim). B. Employer Liability To prevail on their § 1981 claims the plaintiffs must show not only severe or pervasive harassment but also “a specific basis ... for imputing the conduct that created the hostile environment to the employer.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996). Because the harassment here was by a coworker and not a supervisor, the plaintiffs must demonstrate that GFS “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” Id. (internal quotation marks omitted). “[A]n employer will be liable in negligence for a racially ... hostile work environment created by a victim’s coworkers if the employer knows about (or reasonably should know about) that harassment but fails to take appropriately remedial action.” Richardson, 180 F.3d at 446 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)); see Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir.1998). “[O]nce an employer has knowledge of a racially combative atmosphere in the workplace, he has a duty to také reasonable steps to eliminate it.” Snell v. Suffolk County, 782 F.2d 1094, 1104 (2d Cir.1986). The reasonableness of GFS’s response is a close call. The record suggests that Patrick Grable was inadequately prepared to deal with workplace harassment and insufficiently sympathetic to the plaintiffs’ complaints. He told the plaintiffs that if Corliss’s conduct does not stop then they may have to leave; he admitted a lack of knowledge as to McDonald’s policy on workplace harassment; and he trivialized the plaintiffs’ concerns. At the same time, Grable did give Corliss a verbal warning four days after receiving the plaintiffs’ complaint and"
},
{
"docid": "23056563",
"title": "",
"text": "to alter the conditions of the victim’s employment and create an abusive working environment and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer.” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.2009) (internal quotation marks omitted). Here, we need not and do not determine whether Summa’s showing of harassment was sufficiently severe or pervasive to constitute a hostile work environment under Title VII or the NYSHRL because we hold that the conduct in this case cannot be imputed to Hofstra. II. Assuming that Summa’s allegations constituted a hostile work environment, there are no grounds upon which the objectionable conduct can be imputed to the University. In this case, all of the alleged harassers were players on the football team. While this Circuit has not yet determined the standards for addressing harassment attributable to non-employees, we now adopt the well-reasoned rules of the Equal Employment Opportunity Commission (“EEOC”) in imputing employer liability for harassment by non-employees according to the same standards for non-supervisory co-workers, with the qualification that we “will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.” 29 C.F.R. § 1604.11(e). By analogy to the rules for non-supervisory co-workers, see id. § 1604.11(d), “the employer will be held liable only for its own negligence,” and the plaintiff must demonstrate that the employer “failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Duck, 588 F.3d at 762 (internal quotation marks omitted). In determining the appropriateness of an employer’s response, we look to whether the response was “immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility [the employer] has with respect to [the employee’s] behavior.” Crist v. Focus Homes, Inc., 122 F.3d 1107, 1111 (8th Cir.1997). In this case, we think it apparent that the University and the head football coach had"
},
{
"docid": "22406526",
"title": "",
"text": "F.3d 553, 561 (6th Cir.1999). Although the Supreme Court has not addressed hostile work environment claims arising from the actions of a coworker, we have developed a framework for evaluating such a claim: Five constituents must converge to bring a successful claim for a sexually hostile work environment under Title VII:(1) the employee suffered intentional discrimination because of their sex, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position, and (5) the existence of respondeat superior liability. Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.1990) (footnote and citations omitted); accord Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir.1999). B. Hostile Work Environment Harassment and Merithew's Actions In dismissing his complaint, the District Court determined that Weston could not establish a prima fade hostile work environment claim based on the PDOC's failure to adequately reprimand Merithew. It concluded that the alleged discrimination was not pervasive, regular, or objectively detrimental, and that respondeat superior liability did not apply. Weston alleged in his complaint that the PDOC was liable for Merithew's harassment because it failed to prevent her from assaulting him and did not adequately discipline her. This argument has no merit. Our rule \"envisions prompt remedial action when the hostile environment is discovered.\" Bouton v. BMW of N. America, Inc., 29 F.3d 103, 110 (3d Cir.1994). In other words, when the source of the alleged harassment is a co-worker, a plaintiff must demonstrate that th~ employer failed to provide a reasonable avenue for complaint, or, if the employer was aware of the alleged harassment, that it failed to take appropriate remedial action. Kunin, 175 F.3d at 293 (citing Andrews, 895 F.2d at 1486 (liability exists where the defendant knew or should have known of the harassment and failed to take prompt remedial action)); see also 29 C.F.R. § 1604.11(d)(1999) (employer is liable for co-worker harassment if it knows or should have known of the conduct, unless it can show that it took immediate and"
},
{
"docid": "22160017",
"title": "",
"text": "employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. Harris v. Forklift Systems, Inc., 510 U.S. at 23,114 S.Ct. 367. Second, the plaintiff must show that “a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997); see also Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995). When the source of the alleged harassment is a co-worker, the plaintiff must demonstrate that the employer “ ‘failed to provide a reasonable avenue for complaint or if it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.’ ” Richardson v. New York State Department of Correctional Service, 180 F.3d at 441 (quoting Kracunas v. Iona College, 119 F.3d 80, 89 (2d Cir.1997)); see 29 C.F.R § 1604.11(d) (1999) (employer is liable for co-worker harassment if “the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action”). The district court here, in granting summary judgment dismissing How-ley’s hostile-work-environment claim, stated simply that a single incident of verbal harassment is not sufficient, apparently without considering the totality of the circumstances. Yet, considering all the circumstances, Holdsworth’s conduct could reasonably be viewed as having intolerably altered Howley’s work environment, for Holdsworth did not simply make a few offensive comments; nor did he air his views in private; nor were his comments merely obscene without an apparent connection to Howley’s ability to perform her job. Although Holdsworth made his obscene comments only on one occasion, the evidence is that he did so at length, loudly, and in a large group in which Howley was the only female and many of the men were her subordinates. And his verbal assault included charges that Howley had gained her office of"
},
{
"docid": "4995332",
"title": "",
"text": "employee’s work performance. In addition, psychological effects on the employee are relevant to determine whether the plaintiff actually found the environment abusive. See Harris, 510 U.S. at 23, 114 S.Ct. 367, 126 L.Ed.2d 295. Also, the plaintiff must show that there is some specific basis to impute the actions giving rise to the hostile work environment to her employer. Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000). Importantly, an employer may be presumed responsible where the alleged harasser is the plaintiffs supervisor and the harassment culminated in some tangible employment action. See Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Notably, the Second Circuit has directed that in determining whether the plaintiff suffered an atmosphere of hostility, courts must look to the totality of all the circumstances. In fact, the circumstances of this case hue closely to the Second Circuit case Raniola v. Bratton, 243 F.3d 610 (2d Cir.2001). In Raniola, the plaintiff was a police officer for the New York City Police Department, who claimed to have been subjected to years of abuse including sex-based derogatory remarks, disproportionately burdensome work assignments, sabotage of her work, threats, and false accusations of misconduct. Id. at 613. Further, the plaintiff was denied the opportunity to work desirable shifts that were granted to male officers and was refused commendations that were given to male officers. Id. at 614. The plaintiff also alleged that she was suspended, placed on probation, and terminated in retaliation for having complained about her work conditions. Id. at 615. The district court dismissed the action after presentation of the plaintiffs case at trial. The court held that there was insufficient evidence that the plaintiff suffered a hostile work environment, finding that her experience was typical of “ ‘the camaraderie of a precinct house’ which lacks ‘[s]ome of the niceties of expression that one would expect’ in many other work places.” Id. Further, the district court dismissed as unavailing anecdotal accounts of disparate treatment between men and women and complaints of more onerous work assignments because such proof"
},
{
"docid": "11136684",
"title": "",
"text": "or another protected characteristic.” Robinson v. Harvard Prot. Servs., 495 Fed.Appx. 140, 141 (2d Cir.2012) (internal quotation marks omitted) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007)). To withstand summary judgment, Plaintiff must produce evidence that “the workplace was ‘so severely permeated with discriminatory intimidation, ridicule, and insult, that the terms and conditions of [his] employment were thereby altered.’ ” Mills, 519 Fed.Appx. at 75 (quoting Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir.2013)). “Generally, unless an incident of harassment is sufficiently severe, ‘incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.’ ” Das v. Consol. Sch. Dist. of New Britain, 369 Fed.Appx. 186, 189-90 (2d Cir.2010) (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir.2002)). The plaintiff must also establish that the hostile work environment can be imputed to the employer in order to establish employer liability for hostile actions taken by its employees. See Vance v. Ball State Univ., 570 U.S. -, -, 133 S.Ct. 2434, 2443, 186 L.Ed.2d 565 (2013) (explaining under what circumstances an employer may be held liable for harassment by an employee); Summa, 708 F.3d at 124 (holding that “[i]n order to prevail on a hostile work environment claim,” a plaintiff must demonstrate “that there is a specific basis for imputing the conduct creating the hostile work environment to the employer” (quoting Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir.2009))); Smith v. HBO, No. 12-CV-2177, 2013 WL 2285185, at *2 (E.D.N.Y. May 22, 2013) (“Plaintiff must also plead enough facts that the hostile work environment can be imputed to the employer in order to establish employer liability for hostile actions taken by its employees.”). “While the central statutory purpose [of Title VII was] eradicating discrimination in employment, Title VII does not set forth a general civility code for the American workplace.” Redd, 678 F.3d at 176 (alteration in original) (citations and internal quotation marks omitted). The Second Circuit distinguishes between “[complaints of] sexual assaults; [other] physical contacte, whether amorous or hostile, for which there is no consent"
},
{
"docid": "4860883",
"title": "",
"text": "insufficient evidence that she was subjected to such severe and pervasive harassment as to unreasonably interfere with her work performance and create a hostile work environment. D. Employer Liability Finally, the district court concluded C.H. Robinson could not be held liable for the workplace harassment because Gallagher did not make reasonable efforts to report it to management for corrective action. The standards governing this element of the prima facie case are well-summarized in Petrosino v. Bell Atlantic as follows: The Supreme Court has ruled that employers are not automatically liable for sexual harassment perpetrated by their employees. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Where an employee is the victim of sexual harassment, including harassment in the form of a hostile work environment, by non-supervisory coworkers, an employer’s vicarious liability depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action. See Faragher v. City of Boca Raton, 524 U.S. at 789, 118 S.Ct. 2275; accord Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir.2000). Where the harassment is attributed to a supervisor with immediate or successively higher authority over the employee, a court looks first to whether the supervisor’s behavior “culminate[d] in a tangible employment action” against the employee, Burlington Indus., Inc. v. Ellerth, 524 U.S. at 765, 118 S.Ct. 2257, 141 L.Ed.2d 633; if it did, “the employer will, ipso facto, be vicariously liable,” Mack v. Otis Elevator Co., 326 F.3d [116] at 124 [(2d Cir.2003)]. In the absence of such tangible action, an employer will still be liable for a hostile work environment created by its supervisors unless it successfully establishes as an affirmative defense that (a) it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (b) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Burlington"
},
{
"docid": "21316598",
"title": "",
"text": "of Philadelphia, 895 F.2d 1469, 1485 (3d Cir.1990)(“[T]he pervasive use of derogatory and insulting terms relating to women generally and addressed to female employees personally may serve as evidence of a hostile environment.’’). There is no analytically defensible reason to draw a line in the sand in “failed relationship” cases between this type of sexually harassing conduct and sexual advances, physical touching, or any other conduct that has been held to be harassment based on sex pursuant to Title VII. Nowhere does prior case law suggest that certain types of discriminatory behavior, held to constitute gender-based harassment in other cases, may not constitute gender-based harassment when the parties had previously engaged in a romantic relationship. Thus the record below establishes that a reasonable jury could conclude that Va-shaw’s behavior towards Forrest was based on her sex. 2. Employer Liability The parties do not dispute that Vashaw was Forrest’s co-worker, not her supervisor. “A plaintiff must satisfy different standards for establishing employer liability in a hostile work environment case depending on whether the harasser is a supervisor or co-employee of the victim.” Crowley, 303 F.3d at 401. In this Circuit, in order to establish employer liability for a non-supervisory co-employee, “a plaintiff must demonstrate that the employer ‘knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate action.’ ” Id. (quoting White v. N.H. Dept. of Corr., 221 F.3d 254, 261 (1st Cir.2000)); see also Ar- rieta-Colon v. Wal-Mart P.R., Inc., 434 F.3d 75, 85-86 (1st Cir.2006)(reiteratmg same standard for employer liability for non-supervisory co-worker hostile work environment claim brought under Americans With Disabilities Act); O’Rourke v. City of Providence, 235 F.3d 713, 736 (1st Cir.2001)(if harasser is co-worker, employer is only liable if superior knew, or should have known, of harassment and failed to take prompt remedial action). We find that Chili’s remedial actions in this case satisfy the “prompt and appropriate” standard. Drawing all factual inferences in favor of Forrest, it is evident that there is sufficient evidence in the record for a reasonable jury to conclude that Chili’s knew or should"
},
{
"docid": "12758805",
"title": "",
"text": "number of harassing incidents that gives rise, without more, to liability as a matter of law, nor a number of incidents below which a plaintiff fails as a matter of law to state a claim.” Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000) (quoting Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d 426, 439 (2d Cir.1999)) (internal quotation marks omitted). In brief, while not all of the incidents of which the Plaintiff complained were gender-related, enough of them were that the jury was entitled to find that plaintiff experienced a hostile work environment motivated by her gender. 2. Notice to the Employer Defendant argues that Plaintiff cannot rely on incidents of discrimination that were not reported to Defendant, at the time they occurred, through the complaint process Defendant had in place. Defendant urges us to hold that, by not complaining, Plaintiff waived any claim that these events contributed to the allegedly hostile environment. This argument, however, is not in keeping with the Second Circuit’s articulated standard for employer liability, ie., that the employer failed to provide an adequate avenue for complaints or that the employer knew of the harassment, or in the exercise of reasonable care should have known, yet failed to take appropriate remedial action. Howley, 217 F.3d at 154; Richardson, 180 F.3d at 441; Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767 (2d Cir.1998); 29 C.F.R. § 1604.11(d) (1999) (employer is liable for co-worker harassment if “the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action”). The Second Circuit has held that knowledge of the harassment may include constructive notice (ie., that management should have known). Distasio, 157 F.3d at 63-64; Van Zant v. ELM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.1996). Moreover, “an employer is not necessarily insulated from Title VII liability simply because a plaintiff does not invoke her employer’s internal grievance procedure if the failure to report is attributable to the conduct of the employer or its"
},
{
"docid": "2192245",
"title": "",
"text": "a female employee that she had been voted the “sleekest ass” in the office and a subsequent incident in which he deliberately touched her breasts with some papers insufficiently pervasive to sustain a Title VII claim). Once she has demonstrated a hostile work environment, the plaintiff must then show some specific basis for imputing the harassment to the employer. See Torres v. Pisano, 116 F.3d 625, 633 (2d Cir.), cert. denied, 522 U.S. 997, 118 S.Ct. 563, 139 L.Ed.2d 404 (1997). The basis required depends upon whether the harassing employee was an upper-level employee, a lower-level or same-level employee, or a non-employee. See Quinn, 159 F.3d at 766-67. “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (emphasis added). However, the employer may be liable for the actions of an employee of equal or inferior rank if the employer either provided no reasonable avenue for the complaint or knew or should have known of the harassment but did nothing about it. See Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000). Plaintiff has produced sufficient allegations to sustain her cause of action on a hostile work environment theory. She claims that she and other female members of the WWF were subjected to “repeated and unwelcome sexual advances and intrusions” by male members of the WWF. Specifically, she alleges that certain male WWF members accosted Plaintiff and other female members while they were dressing, undressing, or showering. She recites an incident in which she was called “Mister” by a male member of the WWF who then simulated a sexual act with his microphone directed at her buttocks. Finally, she states that Lombardi sexually assaulted her by groping her breasts while pushing her up against a wall and pushing his body into hers. She claims these intrusions were subjectively unwelcome, humiliating, and offensive, and that they altered the terms or conditions of her employment."
},
{
"docid": "5709076",
"title": "",
"text": "on the totality of the circumstances,” viewed from the perspective “of a reasonable person in the plaintiffs position, considering all the circumstances [including] the social context in which particular behavior occurs and is experienced by its target.” Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir.2004) (internal quotation- marks and citation omitted) (finding that “a reasonable jury could conclude that the persistent sexually offensive remarks ... and the graffiti at outdoor work sites were particularly insulting to women because these actions cast women in a demeaning role”). “[T]he kinds of workplace conduct that may be actionable under Title VII ... include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Mentor, 477 U.S. at 65, 106 S.Ct. 2399 (internal quotation marks and citation omitted). “When entering a workplace, reasonable people expect to have their autonomy circumscribed in a number of ways; but giving up control over who can touch their bodies is usually not one of them.” Redd, 678 F.3d at 179. A single incident of contact with an intimate body part is sufficient to establish a hostile work environment claim. See Reid v. Ingerman Smith LLP, 876 F.Supp.2d 176, 185 (E.D.N.Y.2012) (holding that single incident where employee’s supervisor allegedly grabbed her breast and commented that her breasts were large was sufficiently severe to constitute a hostile work environment). “Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment.” Redd, 678 F.3d at 177. See also Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000) (finding that a single incident of verbal abuse was sufficient to raise questions of fact warranting reversal of grant of summary judgment on hostile work environment claim). “[T]here is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor‘a number of incidents below which a plaintiff fails as a matter of law to state a claim.” Id. at 154 (citations omitted). See also Redd, 678 F.3d at 180 (finding that three incidents of touching over a"
},
{
"docid": "5137514",
"title": "",
"text": "minimal effort to discover whether Kohn had engaged in sexual harassment, and that instead of encouraging Duch to discuss the problem, Jakubek discouraged her from revealing the full extent and nature of the harassment by stating in response to her reticence that he did not want to know what happened. Given the foregoing, we hold that a reason able jury could conclude that Duch’s employer had at least constructive knowledge of the sexual harassment directed at her. In so holding we do not announce a new rule of liability for employers who receive nonspecific complaints of harassment from employees. We merely recognize that, under the existing law of this Circuit, when an employee’s complaint raises the specter of sexual harassment, a supervisor’s purposeful ignorance of the nature of the problem — as Jakubek is alleged to have displayed — will not shield an employer from liability under Title VII. Accordingly, notwithstanding the District Court’s observation that Jakubek “was never told of, and did not witness, the alleged harassment,” Duch, 2007 WL 2230174, at *7, we hold that a reasonable jury could conclude that Jakubek “knew, or in the exercise of reasonable care should have known, about the harassment.” See Howley, 217 F.3d at 154 (internal quotation marks omitted). We next consider the adequacy of the employer’s response. c. Whether the Employer Took Appropriate Remedial Action In Distasio v. Perkin Elmer Corporation, we held that [wjhether [a] company’s response was reasonable has to be assessed from the totality of the circumstances. Factors to be considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the nature of the employer’s response in light of the employer’s resources, and the nature of the work environment. 157 F.3d at 65. “If the evidence creates an issue of fact as to whether an employer’s action is effectively remedial and prompt, summary judgment is inappropriate.” Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir.1998) (emphasis added), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see, e.g., Kracunas v. Iona"
},
{
"docid": "22116525",
"title": "",
"text": "F.3d at 570, we believe that plaintiff could reasonably have found her workplace to be both physically and sexually threatening. Daly’s conduct allegedly combined verbal abuse, ostentatious and graphic references to sexual assault and women’s vulnerability to it, and intimidating physical behavior. See Cruz, 202 F.3d at 571 (concluding that a hostile work environment claim survived summary judgment where a supervisor looked at women “up and down in a way that [was] very uncomfortable” and would move toward plaintiff until she was backed against a wall, and holding that this “physically threatening” behavior crossed “the line separating merely offensive or boorish conduct from actionable sexual harassment”). Second, Daly allegedly took steps, such as undermining Gregory’s supervisory authority and depriving her of necessary training, that directly interfered with her ability to do her job. Cf. Howley v. Town of Stratford, 217 F.3d 141, 154-56 (2d Cir.2000) (holding that conduct “diminishing the respect accorded [plaintiff] by subordinates and thereby impairing her ability to lead” can, in appropriate circumstances, contribute to a hostile work environment); Carrero v. New York City Housing Auth., 890 F.2d 569, 579 (2d Cir.1989) (noting that denying plaintiff “adequate training” contributes to a hostile work environment in which plaintiff is deprived “of a fair and equal opportunity to succeed at her position”). Finally, by allegedly rejecting Gregory’s complaints with the demand that she “get on board or quit,” Daly made it clear that his harassing conduct was anything but a joke, and that accepting it was something that Gregory should consider integral to her job. Regardless of whether Daly ultimately made decisions about tangible employment actions based on whether Gregory “got on board,” threatening such a linkage can contribute to creation of a hostile work environment. See Burlington Indus., 524 U.S. at 753, 118 S.Ct. 2257 (distinguishing between making threats and carrying them out); cf. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 897-98 (9th Cir.1994) (noting that a woman “forced to tolerate [a supervisor’s] sexually harassing conduct for fear that her job or her advancement in the company are at risk ... may reasonably feel subordinated and belittled”)."
},
{
"docid": "20254137",
"title": "",
"text": "Diocese, the District Court proceeded to dismiss Rojas’s hostile work environment and retaliation claims. Once again, we find no error in the District Court’s rulings. 1. Hostile Work Environment Claim Under Title VII, a plaintiff claiming he or she was the victim of an unlawful hostile work environment must elicit evidence from which a reasonable trier of fact could conclude (1) that the workplace was permeated with discriminatory intimidation that. was sufficiently severe or pervasive to alter the conditions of his or her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir.2003) (internal quotation marks omitted). “When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.’ ” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.1997) (quoting Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.1994)). Here, the District Court held that liability for the alleged sexual harassment could not be imputed to the Diocese because Enyan-Boadu was not Rojas’s supervisor and there was no evidence from which a reasonable jury could find that the Diocese knew or should have known about the alleged harassment and failed to take appropriate remedial action. Rojas II, 783 F.Supp.2d at 410-11. Given its decision with respect to Rojas’s contrived assertions of disputed facts, which we have affirmed, the District Court was presented with no genuine issue of material fact regarding whether liability for Enyan-Boadu’s alleged harassment could be imputed to the Diocese. Therefore, it properly dismissed Rojas’s hostile environment claims because the competent evidence in the record showed that Enyan-Boadu was not Rojas’s supervisor (and indeed was employed by a distinct corporate entity), that the Diocese did provide a reasonable avenue for complaint, and that Rojas had not made a specific complaint to the Diocese such that it knew or should have known about the alleged sexual harassment. 2. Retaliation"
},
{
"docid": "5137503",
"title": "",
"text": "the existence of a hostile work environment involves both objective and subjective elements.” Id. at 150 (internal quotation marks omitted). Specifically, a plaintiff must show that the misconduct was “ ‘severe or pervasive enough to create an objectively hostile or abusive work environment,’ and the victim must also subjectively perceive that environment to be abusive.” Id. (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir.2002)). Because defendants did not seek, nor did the District Court grant, summary judgment on this ground, we do not address it further. See Duch, 2007 WL 2230174, at *5 (“The Court declines to address whether Plaintiff has established the first element of a hostile work environment claim because, for the reasons discussed below, the claim fails as a matter of law on the second element.”). B. Imputing the Conduct to the Employer At issue on this appeal is whether Duch can impute the conduct that created the hostile work environment to her employer. In a situation such as this, “when the harassment is attributable to a coworker, rather than a supervisor, ... the employer will be held liable only for its own negligence.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir.1998). Accordingly, Duch must demonstrate that her employer “failed to provide a reasonable avenue for complaint” or that “it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000) (internal quotation marks omitted). 1. Reasonable Avenue of Complaint The District Court concluded that “no reasonable fact finder could conclude that the Employer Defendants failed to provide Plaintiff with a reasonable avenue of complaint.” Duch, 2007 WL 2230174, at *6. We agree. Duch argues that the District Court improperly focused on the fact that OCA had a sexual harassment policy in place and that Duch had received a booklet on sexual harassment. See id. According to Duch, the District Court failed to consider whether EEO Liaison Christiano — the avenue of complaint that Duch chose to pursue — was inadequate"
},
{
"docid": "5137504",
"title": "",
"text": "a supervisor, ... the employer will be held liable only for its own negligence.” Distasio v. Perkin Elmer Corp., 157 F.3d 55, 63 (2d Cir.1998). Accordingly, Duch must demonstrate that her employer “failed to provide a reasonable avenue for complaint” or that “it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000) (internal quotation marks omitted). 1. Reasonable Avenue of Complaint The District Court concluded that “no reasonable fact finder could conclude that the Employer Defendants failed to provide Plaintiff with a reasonable avenue of complaint.” Duch, 2007 WL 2230174, at *6. We agree. Duch argues that the District Court improperly focused on the fact that OCA had a sexual harassment policy in place and that Duch had received a booklet on sexual harassment. See id. According to Duch, the District Court failed to consider whether EEO Liaison Christiano — the avenue of complaint that Duch chose to pursue — was inadequate because of her alleged lack of training. Christiano testified that “[wjhen the time came that I was supposed to go for the training[,] I couldn’t go because we were short of officers and I just couldn’t go, so I never got the training.” J.A. 404. Moreover, according to Duch, in response to her complaints, Christiano inappropriately inquired why Duch “didn’t ... just grab [Kohn] and hurt him.” J.A. 327. Even assuming that Christiano’s response rendered her an inadequate avenue for complaint, the relevant inquiry is not whether a particular avenue of complaint was effectively blocked but, rather, whether defendants “provided no reason able avenue of complaint.” See Distasio, 157 F.3d at 63 (emphasis added) (quoting Murray v. N.Y. Univ. College of Dentistry, 57 F.3d 243, 249 (2d Cir.1995)); see also Howley, 217 F.3d at 154 (explaining that employers must “provide a reasonable avenue of complaint” (emphasis added)). As Duch herself acknowledges in her brief, according to the Deputy Director of Human Resources at OCA, a victim of discriminatory conduct could seek assistance from at least"
},
{
"docid": "2192246",
"title": "",
"text": "either provided no reasonable avenue for the complaint or knew or should have known of the harassment but did nothing about it. See Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000). Plaintiff has produced sufficient allegations to sustain her cause of action on a hostile work environment theory. She claims that she and other female members of the WWF were subjected to “repeated and unwelcome sexual advances and intrusions” by male members of the WWF. Specifically, she alleges that certain male WWF members accosted Plaintiff and other female members while they were dressing, undressing, or showering. She recites an incident in which she was called “Mister” by a male member of the WWF who then simulated a sexual act with his microphone directed at her buttocks. Finally, she states that Lombardi sexually assaulted her by groping her breasts while pushing her up against a wall and pushing his body into hers. She claims these intrusions were subjectively unwelcome, humiliating, and offensive, and that they altered the terms or conditions of her employment. (Sec.Am. Compl.Hf 22-25, 29-32, 44, 46-47.) These allegations suffice to show a workplace permeated with discriminatory intimidation which was sufficiently severe or pervasive to alter the conditions of Plaintiffs employment and create both an objectively and subjectively hostile or abusive work environment. Furthermore, Plaintiff states sufficient bases to impute the conduct to the WWF. She avers that Lombardi is a longtime employee of the WWF and a member of the WWF management with significant control and authority over her employment. She also claims that other harassing conduct was perpetrated by WWF “officers.” Finally, she asserts that the harassment was “well known to the senior management of the WWF, yet it failed and refused to take any steps to prevent such conduct.” (Id. ¶¶ 23, 29-30, 32, 35, 37, 48.) Plaintiffs First Cause of Action states a valid Title VII claim for sexual harassment. B. Second Cause of Action: Title VII Retaliation Plaintiff alleges that the WWF violated Title VII by retaliating against her for her opposition to their discriminatory conduct. She seeks punitive and compensatory"
},
{
"docid": "5709077",
"title": "",
"text": "contact with an intimate body part is sufficient to establish a hostile work environment claim. See Reid v. Ingerman Smith LLP, 876 F.Supp.2d 176, 185 (E.D.N.Y.2012) (holding that single incident where employee’s supervisor allegedly grabbed her breast and commented that her breasts were large was sufficiently severe to constitute a hostile work environment). “Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment.” Redd, 678 F.3d at 177. See also Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir.2000) (finding that a single incident of verbal abuse was sufficient to raise questions of fact warranting reversal of grant of summary judgment on hostile work environment claim). “[T]here is neither a threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law, nor‘a number of incidents below which a plaintiff fails as a matter of law to state a claim.” Id. at 154 (citations omitted). See also Redd, 678 F.3d at 180 (finding that three incidents of touching over a five month period constituted evidence of purposeful harassment). b. Imputing Conduct That Created Hostile Work Environment to Employer To satisfy the second element of the test, plaintiff must establish “a spe- cific basis ... for imputing the conduct that created the hostile environment to the employer.” Perry, 115 F.3d at 149. Central to this inquiry is the status of the harasser. Where he is a “supervisor,” an employer may be vicariously liable for his unlawful conduct. Vance v. Ball State Univ., - U.S. -, 133 S.Ct. 2434, 2443, 186 L.Ed.2d 565 (2013). An employee is a “supervisor” if he is empowered “to take tangible employment actions against the victim, ie., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Id. at 2443, 2451-52 (citation omitted) (holding that juries should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer"
}
]
|
150591 | make of this appeal, we do not reach appellee’s contention that even if Allison’s statement was legally inadmissible it was not a factor inducing his guilty plea and thus may not be used to challenge his conviction. Because of the basis on which the district court disposed of this petition, no evidentiary hearing was held and no determination concerning inducement was made. See generally Commonwealth of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); United States ex rel. Ross v. McMann, 409 F.2d 1016 (2d Cir.), judgment vacated as moot 396 U.S. 118, 90 S.Ct. 395, 24 L.Ed.2d 303, (1969) ; REDACTED Busby v. Holman, 356 F.2d 75 (5th Cir. 1966) ; Palumbo v. New Jersey, 334 F.2d 524 (3d Cir. 1964) ; United States ex rel. Brown v. LaVallee, 301 F.Supp. 1245 (S.D.N.y.1969) ; United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175, 1178 (E.D.Pa.1968), aff’d per curiam, 411 F.2d 910 (3d Cir. 1969). While we might have remanded the case to try to determine the question of inducement before reaching the issue of retro-activity, we prefer to avoid placing on the lower court the burden of resolving the nebulous problem of inducement, more than a decade after the event, when the matter of retroactivity is not unduly difficult. . See also Tehan v. United States ex rel. Shott, 382 U.S. | [
{
"docid": "11744549",
"title": "",
"text": "In this respect, however, Collins specifically stated before me prior to the time Mr. McDermott appeared in court, that it was not McDermott but one of the other officers who had made the promise (H.C. 49). . While Mr McDermott is certainly not a physician, I feel quite confident in the accuracy of the conclusions lie stated based on his long experience in the field, and his personal observations of Collins. . This view finds support in this Circuit in the recent decision of Judge Joseph S. Lord, III in United States ex rel. Smith v. Brierly, 267 F.Supp. 274 (E.D. Pa., 1967) in which he held that the Pennsylvania “tacit admission” rule violated the Fifth Amendment prohibition against involuntary confessions, stating that voluntariness requires “the active will to confess”. 267 F.Supp. at 281. . The factual background and legal propriety of this “arrangement” — if any there was — and assuming that there was, its not being carried out is not before me since Collins has never raised those issues in the State courts. . The fourth question assumes that the confession did not induce the guilty plea. . Having found that the confession was the lynchpin factor inducing Collins’ plea, I need not consider whether the confession “in some way affected his plea of guilty”. Brown v. Turner, 257 F.Supp. 734, 738 (ED N.C.1966) ; “induced” the guilty plea, United States ex rel. Collins v. Maroney, 382 F.2d 547 (3rd Cir. 1967); United States ex rel. Cuevas v. Rundle, 258 F.Supp. 647 (ED Pa.1966) or was “the primary motivation for his plea of guilty” Commonwealth v. Garrett, 425 Pa. 594, 229 A.2d 922 (1967)."
}
]
| [
{
"docid": "2793824",
"title": "",
"text": "of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970). In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden. The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for heabeas corpus. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, appellant’s trial counsel testified that appellant did not tell him his confession was coerced. And both the state court and the district court, after separate evidentiary hearings, found no coercion. The record indicates that the Pennsylvania felony-murder rule was explained to appellant by his counsel and suggests that appellant was induced to plead guilty because of assurances that the maximum sentence would be life imprisonment. This inflicts no constitutional infirmities upon the proceedings. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); North Carolina v. Alford, 400 U.S. 25 91 S.Ct. 160, 27 L.Ed.2d 162 (November 23, 1970). The judgment of the district court will be affirmed. . The district court applied the standard in effect at the time of the hearing which imposed upon the Commonwealth the burden of proving the voluntary nature of a guilty plea, United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3 Cir. 1968);"
},
{
"docid": "2982399",
"title": "",
"text": "PER CURIAM: Appellant was convicted and sentenced in 1960 on his plea of guilty to charges of violating sections 209 and 211 of the California Criminal Code. His petition for habeas corpus was based upon the theory that his guilty plea was induced by a confession obtained in violation of the rule of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The district court denied the petition without a hearing on the ground that the Escobedo rule is to be applied prospectively only. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). By allegations appearing for the first time in briefs filed in this court, appellant materially expanded his claim to raise the more general issues of whether his guilty plea was the product of alleged threats and promises and an allegedly coerced confession (see, e. g., Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Chambers v. State of Florida, 309 U.S. 227 n. 2, 60 S.Ct. 472, 84 L.Ed. 716 (1945); White v. Pepersack, 352 F.2d 470, 472 (4th Cir. 1965); Wright v. Dickson, 336 F.2d 878, 882 (9th Cir. 1964) ; Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962)); and whether he was adequately represented by counsel in the submission of his guilty plea. Wilson v. Reagan, 354 F.2d 45 (9th Cir. 1965); Wright v. Dickson, supra, 336 F.2d at 883; Jones v. Cunningham, 313 F.2d 347 (4th Cir. 1963). As the cited cases indicate, neither of these issues, if adequately alleged and ultimately proven, would be foreclosed by the guilty plea itself. Because the second issue is wholly new and the first is substantially so, we affirm the judgment, but without prejudice to the right of the appellant to renew his present contentions in the district court in a new petition for habeas corpus. See Flemings v. Wilson, 365 F.2d 267 (9th Cir. 1966)."
},
{
"docid": "22996748",
"title": "",
"text": "of pleading. Since they act so often as their own counsel in habeas corpus proceedings, we,cannot impose on them the same high standards of the legal art which we might place on the members of the legal profession. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356 (1948). We turn first to the voluntariness of appellant’s confession. As we have noted, it is not entirely clear whether appellant’s conviction was based on a plea or a verdict of guilty. More likely, it was a plea, and we will so assume for the purpose of this discussion. Even so, the voluntariness of the confession is the critical issue, for the averments of the petition clearly indicate a causal relationship between the allegedly coerced confession and the subsequent plea of guilty. Of such cases, the Supreme Court has said, “Our prior decisions have established that: (1) a conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause * * Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224, 100 L.Ed. 126 (1956). (Emphasis added.) Citing Herman, the Court of Appeals for the Fourth Circuit has said: The claim [that a coerced confession induced a guilty plea] may properly be raised on habeas corpus, and if it is proved at the hearing that an illegally obtained confession induced ’the plea of guilty, the conviction should be set aside unless there has been a voluntary waiver. Jones v. Cunningham, 297 F. 2d 851, 855 (4th Cir. 1962). Thus the question is whether appellant has alleged any violation of federal con stitutional safeguards in the obtaining of his confession. Reliance on the principles established in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is precluded by the Supreme Court’s holding in Johnson v. State of New Jersey, 384 U.S. 719, 86"
},
{
"docid": "22963363",
"title": "",
"text": "U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967). See also United States ex rel. Vaughn v. LaValle, 318 F.2d 499 (2nd Cir. 1963), language in which was disavowed in United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2nd Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966), to the extent it was not in accord with the principle that a voluntary plea of guilty entered on advice of counsel is a waiver of all non-jurisdictional defects in prior proceedings.) However, this argument is advanced here for the first time. Because this argument was not made below, it would only be a proper consideration here to prevent a manifest miscarriage of justice. From the present record, we cannot say that the said confessions were the “involuntary end product of coercive influences,” Davis v. State of North Carolina, 384 U.S. 737, 752, 86 S.Ct. 1761, 1770, 16 L.Ed.2d 895 (1966), nor that appellant’s conviction constituted a miscarriage of justice. Assuming that appellant had alleged and proved that his confessions had been coerced, and were therefore constitutionally inadmissible, appellant nevertheless could not prevail since the record establishes that his pleas were in fact voluntary. Appellant was represented by competent counsel at the time he entered his pleas of guilty, a factor which strongly militates against the conclusion that the plea was involuntary (Busby v. Holman, 356 F.2d 75 (5th Cir. 1966); United States ex rel. Staples v. Pate, supra, 332 F.2d 531; Gawantka v. United States, supra, 327 F.2d 129. See also Commonwealth of Pa. ex rel. Herman v. Claudy, supra, 350 U.S. at 122, 76 S. Ct. at 226; United States ex rel. Glenn v. McMann, supra, 349 F.2d 1018.) and appellant’s pleas were in accord with counsel’s recommendation. Appellant now claims that he was forced to plead guilty “under the circumstances” confronting him at that time. In this regard, appellant testified that because his attorney “just quit,” he had no choice but to plead guilty; “I couldn’t win a case in a Court Room without an attorney to fight for me.” Also, appellant"
},
{
"docid": "4541702",
"title": "",
"text": "vult or nolo contendere to the indictment; the sentence to be imposed, if such plea be accepted, shall be either imprisonment for life or the same as that imposed upon a conviction of murder in the second degree. N.J.S.A. 2A :113-3. Every person convicted of murder in the first degree, his aiders, abettors, counselors and procurers, shall suffer death unless the jury shall by its verdict * * * recommend life imprisonment, in which case this and no greater punishment shall be imposed. * * * N.J.S.A. 2A: 113-4. There is no right to a trial by a judge without a jury. The only options are a trial by jury or a plea of non vult. . In Massiah, discussed in more detail, infra, a statement elicited by a federal agent after the defendant’s indictment in a federal prosecution was held inadmissible as an infringement of the right to counsel. Reliance on that case in McLeod, supra, made it clear that Massiah applies to all post indictment efforts to obtain a statement from a defendant. See United States ex rel. O’Connor v. New Jeresy, 405 F.2d 632, 635-636 (3d Cir.), cert. denied, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240 (1969). . In view of the disposition we make of this appeal, we do not reach appellee’s contention that even if Allison’s statement was legally inadmissible it was not a factor inducing his guilty plea and thus may not be used to challenge his conviction. Because of the basis on which the district court disposed of this petition, no evidentiary hearing was held and no determination concerning inducement was made. See generally Commonwealth of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); United States ex rel. Ross v. McMann, 409 F.2d 1016 (2d Cir.), judgment vacated as moot 396 U.S. 118, 90 S.Ct. 395, 24 L.Ed.2d 303, (1969) ; United States ex rel. Collins v. Maroney, 382 F.2d 547 (3d Cir. 1967), on remand, 287 F.Supp. 420 (E.D.Pa.1968) ; Busby v. Holman, 356 F.2d 75 (5th Cir. 1966) ; Palumbo v."
},
{
"docid": "13241907",
"title": "",
"text": "OPINION OF THE COURT PER CURIAM: This case challenges a May 22, 1970, district court order denying a petition for a writ of habeas corpus filed by a state prisoner sentenced to life imprisonment for first degree murder on September 9, 1957, after a hearing to determine the degree of murder following the entry of a guilty plea with the advice of counsel. The thorough opinion of Judge Higginbotham, 313 F.Supp. 237, with which, after consideration of the record as well as of the arguments and briefs of counsel, we are in agreement, makes it unnecessary for us to recite the lengthy history of the proceedings involving relator in both the state and federal courts, the facts, or the issues (particularly as to the voluntariness of the confession) raised in the district court and in this court, except as to the issue discussed below. See United States ex rel. Walker v. Maroney, 313 F.Supp. 237 (E.D.Pa.1970). We note that many of the issues argued here had previously similarly been determined in the case of relator’s co-defendant Crow-son. See United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175 (E.D.Pa. 1968), aff'd 411 F.2d 910 (3d Cir. 1969). Relying on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), decided after the district court opinion and order of May 22, 1970, relator contends that such district court order must be reversed because he had no counsel at the time of his preliminary hearing. It has been consistently held by the great majority of federal courts, as well as the Pennsylvania appellate courts, prior to the Coleman decision, that a preliminary hearing is not a critical stage in the criminal procedure in the state court, absent some special circumstances. See, e. g., United States v. Conway, 415 F.2d 158, 160-161 (3d Cir. 1969); Via v. Perini, 415 F.2d 1052 (6th Cir. 1969); Pagan Cancel v. Delgado, 408 F.2d 1018 (1st Cir. 1969); United States ex rel. Budd v. Maroney, 398 F.2d 806 (3d Cir. 1968) (Pennsylvania); Carr v. Henderson, 385 F.2d 531 (6th Cir. 1967), cert. denied 391"
},
{
"docid": "4330465",
"title": "",
"text": "merits. Yet, as Illinois law so clearly provides, this opportunity for appellate review of trial errors is precisely what a defendant waives by his plea of guilty. We consider this critical misstatement of prevailing state law to a defendant on trial in a state court a “serious dereliction on the part of counsel,” McMann, supra, 397 U.S., at 774, 90 S.Ct. at 1450. Relying upon this misrepresentation of Illinois law, petitioner was deprived the occasion to “rationally weigh the advantages of [continuing his] trial against the advantages of pleading guilty,” Brady, supra, 397 U.S., at 750, 90 S.Ct. at 1470 which due process requires. His plea is therefore invalid. Respondent adverts to the fluidity of federal law regarding the effects and consequences of a guilty plea prior to the Supreme Court’s opinions in the Brady trilogy, decided some four months subsequent to the termination of petitioner’s trial. Because federal courts sometimes considered circumstances surrounding the entry of a plea in determining its validity, respondent argues that counsel’s advice to the effect that a reviewing court might be cognizant of trial errors notwithstanding the plea is reasonable. This contention is meritless. The trial rulings involved here, pertaining to instructions and evidentiary matters, are not of constitutional magnitude and therefore are not cognizable by a federal court under 28 U.S.C. § 2254. Therefore, the position espoused by federal law on this question is immaterial. Moreover, the cases decided prior to the Brady trilogy indicate that federal courts investigated only constitutional infirmities in assessing the voluntariness and intelligence of a guilty plea. See, e.g., Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956) (uncounseled defendant); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940) (coerced confessions which induced and tainted subsequent guilty pleas). See also, Moreno v. Beto, 415 F.2d 154 (5th Cir. 1969); United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968); Kott v. Green, 387 F.2d 136 (6th Cir. 1967); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); Smiley v. Wilson, 378 F.2d 144 (9th"
},
{
"docid": "12012271",
"title": "",
"text": "learned that he would be sentenced in a week’s time, appellant allegedly made .unavailing efforts to, withdraw the plea of guilty and to obtain a trial by jury. In effect, Haacks is arguing that his plea was entered because of ignorance or inadvertence and thus was not voluntary, that he would have pleaded innocent but for what he supposed to be a promise that he would not go to prison and, moreover, that he attempted a timely withdrawal of his plea. If the record presented nothing more than these allegations, it would be difficult to avoid the conclusion that appellant is entitled to a plenary hearing on the voluntariness of his plea. Busby v. Holman, 5 Cir. 1966, 356 F.2d 75, 78 offers a succinct statement of the applicable rule of law. “It is well settled that a conviction, whether in a state or federal court, which is based upon an involuntary or coerced plea of guilty, whether it be unfairly obtained or given through ignorance, fear or inadvertence, is invalid as inconsistent with due process of law.” See Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Com. of Pennsylvania ex rel. Herman v. Claudy, 1956, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Wright v. Dickson, 9 Cir. 1964, 336 F.2d 878; United States v. Tateo, D.C.N.Y.1963, 214 F.Supp. 560. In reply to appellant’s arguments, the State of Florida contends that the words “say nothing” contained in the pro forma judgment of the trial court have an irrefutable and irrebuttable quality. But petitioner contends precisely that the judgment is false because he did try to withdraw his plea of guilty at the time of sentencing and that there were witnesses to his vain effort. This contention is neither verifiable nor disprovable by the present record. We do not in the pro forma judgment have a live transcription or reproduction of occurrences. We have a judgment but no stenographic record of its forbears. We have a machined portion of a judgment which may or may not have relevance to reality. There is no"
},
{
"docid": "4541703",
"title": "",
"text": "See United States ex rel. O’Connor v. New Jeresy, 405 F.2d 632, 635-636 (3d Cir.), cert. denied, 395 U.S. 923, 89 S.Ct. 1770, 23 L.Ed.2d 240 (1969). . In view of the disposition we make of this appeal, we do not reach appellee’s contention that even if Allison’s statement was legally inadmissible it was not a factor inducing his guilty plea and thus may not be used to challenge his conviction. Because of the basis on which the district court disposed of this petition, no evidentiary hearing was held and no determination concerning inducement was made. See generally Commonwealth of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); United States ex rel. Ross v. McMann, 409 F.2d 1016 (2d Cir.), judgment vacated as moot 396 U.S. 118, 90 S.Ct. 395, 24 L.Ed.2d 303, (1969) ; United States ex rel. Collins v. Maroney, 382 F.2d 547 (3d Cir. 1967), on remand, 287 F.Supp. 420 (E.D.Pa.1968) ; Busby v. Holman, 356 F.2d 75 (5th Cir. 1966) ; Palumbo v. New Jersey, 334 F.2d 524 (3d Cir. 1964) ; United States ex rel. Brown v. LaVallee, 301 F.Supp. 1245 (S.D.N.y.1969) ; United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175, 1178 (E.D.Pa.1968), aff’d per curiam, 411 F.2d 910 (3d Cir. 1969). While we might have remanded the case to try to determine the question of inducement before reaching the issue of retro-activity, we prefer to avoid placing on the lower court the burden of resolving the nebulous problem of inducement, more than a decade after the event, when the matter of retroactivity is not unduly difficult. . See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) ; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882 (1966) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ; Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). For a comprehensive discussion of the general principles of retroactivity see IB Moore’s"
},
{
"docid": "4541704",
"title": "",
"text": "New Jersey, 334 F.2d 524 (3d Cir. 1964) ; United States ex rel. Brown v. LaVallee, 301 F.Supp. 1245 (S.D.N.y.1969) ; United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175, 1178 (E.D.Pa.1968), aff’d per curiam, 411 F.2d 910 (3d Cir. 1969). While we might have remanded the case to try to determine the question of inducement before reaching the issue of retro-activity, we prefer to avoid placing on the lower court the burden of resolving the nebulous problem of inducement, more than a decade after the event, when the matter of retroactivity is not unduly difficult. . See also Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966) ; Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882 (1966) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ; Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). For a comprehensive discussion of the general principles of retroactivity see IB Moore’s Federal Practice ¶¶ 0.402 [3.-2-31-0.402 [3.-2-5] (2d ed. 1965); Rogers, Perspectives on Prospective Overruling, 36 Kan.City L.Rev. 35 (1968) ; Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. of Chi.L.Rev. 719 (1966) ; Mishkin, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L.Rev. 56 (1965). . See Desist v. United States, supra, 394 U.S. at 249, 89 S.Ct. 1030. . Gideon was applied retroactively in this Circuit in Palumbo v. New Jersey, 334 F.2d 524 (3d Cir. 1964) ; United States ex rel. Craig v. Myers, 220 F.Supp. 762 (E.D.Pa.1963), aff’d, 329 F.2d 856 (3d Cir. 1964). . The cases applying the right to counsel requirement at these various stages of criminal proceedings retroactively are Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964), with respect to Gideon; Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964), with respect to Douglas', McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2"
},
{
"docid": "13241908",
"title": "",
"text": "co-defendant Crow-son. See United States ex rel. Crowson v. Brierley, 300 F.Supp. 1175 (E.D.Pa. 1968), aff'd 411 F.2d 910 (3d Cir. 1969). Relying on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), decided after the district court opinion and order of May 22, 1970, relator contends that such district court order must be reversed because he had no counsel at the time of his preliminary hearing. It has been consistently held by the great majority of federal courts, as well as the Pennsylvania appellate courts, prior to the Coleman decision, that a preliminary hearing is not a critical stage in the criminal procedure in the state court, absent some special circumstances. See, e. g., United States v. Conway, 415 F.2d 158, 160-161 (3d Cir. 1969); Via v. Perini, 415 F.2d 1052 (6th Cir. 1969); Pagan Cancel v. Delgado, 408 F.2d 1018 (1st Cir. 1969); United States ex rel. Budd v. Maroney, 398 F.2d 806 (3d Cir. 1968) (Pennsylvania); Carr v. Henderson, 385 F.2d 531 (6th Cir. 1967), cert. denied 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871 (1968); Rambo v. Peyton, 380 F.2d 363 (4th Cir. 1967); Thompson v. Pepersack, 270 F. Supp. 793 (D.Md.1967), aff’d sub nom., Thompson v. Warden, 413 F.2d 454 (4th Cir. 1969), cert. denied 397 U.S. 950, 90 S.Ct. 972, 25 L.Ed.2d 131 (1970). We have concluded that Coleman should not be applied retroactively to the preliminary hearing on July 30, 1957, for the reasons clearly stated in Phillips v. North Carolina, 433 F.2d 659 (4th Cir. 1970), and Konvalin v. Sigler, 431 F.2d 1156 (8th Cir. 1970). See also United States ex rel. Bonner v. Pate, 430 F.2d 639 (7th Cir. 1970); Commonwealth v. James, supra 269 A.2d at 900. For the foregoing reasons, the district court order will be affirmed. . The attempted robbery of the drug store during which one of relator’s two co-defendants killed the owner took place on July 25, 1957. See Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959). He was arrested on July 27, 1957, and a preliminary hearing was"
},
{
"docid": "22963362",
"title": "",
"text": "a plea of guilty are based entirely upon the plea and not upon any evidence which may have been improperly acquired by the prosecuting authorities. United States ex rel. Boucher v. Reincke, supra; Gawantka v. United States, 327 F.2d 129 (3rd Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1650, 12 L. Ed.2d 738 (1964). Appellant apparently attempts to circumvent the waiver attending the plea of guilty by claiming that'the plea was involuntary in that it was the product of, or induced by, certain coerced admissions which had been obtained from him by the police. That this may be a ground for habeas corpus relief appears to be well settled. (See Commonwealth of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); , Johnson v. Wilson, 371 F.2d 911 (9th Cir. 1967); Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962); United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964); Bell v. State of Alabama, 367 F.2d 243 (5th Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1967). See also United States ex rel. Vaughn v. LaValle, 318 F.2d 499 (2nd Cir. 1963), language in which was disavowed in United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2nd Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966), to the extent it was not in accord with the principle that a voluntary plea of guilty entered on advice of counsel is a waiver of all non-jurisdictional defects in prior proceedings.) However, this argument is advanced here for the first time. Because this argument was not made below, it would only be a proper consideration here to prevent a manifest miscarriage of justice. From the present record, we cannot say that the said confessions were the “involuntary end product of coercive influences,” Davis v. State of North Carolina, 384 U.S. 737, 752, 86 S.Ct. 1761, 1770, 16 L.Ed.2d 895 (1966), nor that appellant’s conviction constituted a miscarriage of justice. Assuming that appellant had alleged and proved that his confessions"
},
{
"docid": "7661231",
"title": "",
"text": "petit larceny and, on August 8, 1968, was given an unconditional discharge. . Cf. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). . United States ex rel. Ross v. McMann, 409 F.2d 1016, 1021 (2d Cir. 1969), vacated on other grounds, sub nom. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). . United States ex rel. Rosen v. Follette, 409 F.2d 1042, 1045 (2d Cir. 1969), cert. denied, 398 U.S. 930, 90 S.Ct. 1822, 26 L.Ed.2d 93 (1970) ; United States ex rel. Brooks v. McMann, 408 F.2d 823, 826 (2d Cir. 1969) ; United States ex rel. Brock v. LaVallee, 306 F.Supp. 159, 162 (S.D.N.Y.1969). . This omission is all the more glaring since it appears petitioner has been in communication with the attorney, who submitted a letter which does not touch on this issue of advice. (Ex. 3). . McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). . H.R. 3 (July 2, 1968). . See note 40 supra. . Cf. Dukes v. Warden, 406 U.S. 250, 257, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972) (Stewart, J., concurring) ; Santobello v. New York, 404 U.S. 257, 267-268, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Marshall, J., concurring and dissenting). . United States ex rel. Rosa v. Follette, 395 F.2d 721, 726 (2d Cir.), cert. denied, 393 U.S. 892, 89 S.Ct. 216, 21 L.Ed.2d 172 (1968) ; United States ex rel. Scott v. Mancusi, 429 F.2d 104, 110 (2d Cir. 1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1385, 28 L.Ed.2d 651 (1971) ; United States ex rel. Best v. Fay, 239 F.Supp. 632 (S.D.N.Y.1965), aff’d, 365 F.2d 832 (2d Cir. 1966), cert, denied, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967). . Cf. United States ex rel. Best v. Fay, 239 F.Supp. 632, 634-635 (S.D.N.Y.1965), aff’d, 365 F.2d 832 (2d Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967). . H.R. 183 (May 15-17, 1968). . See United States ex rel. Brock v."
},
{
"docid": "4122513",
"title": "",
"text": "87 S.Ct. 109, 17 L.Ed.2d 85 (1966); People v. Cruz, 24 A.D.2d 455, 260 N.Y.S.2d 417 (2d Dept. 1965).” The present attitude of the federal courts seems appropriately reflected in Judge Weinfeld’s passing comment that “ * * * the discretionary determination [whether to allow withdrawal of a plea] is not subject to Federal habeas corpus review. * * * ” United States ex rel. Best v. Fay, 239 F.Supp. 632, 634 (S.D.N.Y. 1965), aff’d 365 F.2d 832 (2d Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967). The question remaining, then, is whether Roy Brown entered a valid plea of guilty of murder in the second degree. In this case, the answer to this question lies in an examination of (A) the formal plea process, as well as the informal out-of-court communications and conferences heretofore summarized in this opinion; and (B) the impact on Brown of the existing New York statutory law relating to trial by jury in capital cases, as that law cast its shadow over pleas to the offense charged, or to lesser included offenses. A. Federal courts have traditionally exacted high standards of voluntariness for the acceptance of guilty pleas. The voluntariness requirement is a constitutional one, reaching even state court proceedings, and owing its existence to the nature of the guilty plea. The guilty plea is more than a mere admission or an extra-judicial confession: “* * * [I]t is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.” Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). If induced by promises or threats which deprive it of the character of a voluntary act, it is void, Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), whether made in federal or state court. United States ex rel. Ross v. McMann, and United States ex rel. Dash v. Follette, 409 F.2d 1016, en banc (2d Cir. Feb. 26, 1969). The"
},
{
"docid": "22554561",
"title": "",
"text": "the electric chair, however, since any defendant facing it would have such fear, but rather whether the solicitor, in the circumstances of this case, induced the guilty plea by overcoming the appellant’s ability to make a voluntary decision. We have carefully examined the record, and we conclude that the finding of the district court that the appellant was not coerced into entering a guilty plea and that he fully understood what he was doing is supported by substantial evidence. We are grateful to Thomas S. Lawson, Jr., Esq., who, as court-appointed counsel for appellant, represented him forcefully and well in this court. The judgment of the district court is affirmed. . The district court found that the confession was voluntary, however. . This had not been recognized as a constitutional right in 1956 and indeed has not yet been so recognized by the Supreme Court. See Crooker v. California, 1958, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448; Cicenia v. LaGay, 1958, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523, and compare Lee v. United States, 5 Cir. 1963, 322 F.2d 770, with U.S. ex rel. Townsend v. Ogilvie, 7 Cir. 1964, 334 F.2d 837. See also Long v. United States, D.C.Cir. 1964, 338 F.2d 549. . Kercheval v. United States, 1927, 274 U.S. 220, 223, 47 S.Ct. 852, 71 L.Ed. 1009; Machibroda v. United States, 1962, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473; Com. of Pennsylvania ex rel. Herman v. Claudy, 1956, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Wright v. Dickson, 9 Cir. 1964, 336 F.2d 878; United States ex rel. McGrath v. LaVallee, 2 Cir. 1963, 319 F.2d 308; Shelton v. United States, 7 Cir. 1961, 292 F.2d 346. RIVES, Circuit Judge (dissenting): This prosecution began on January 9, 1956, when a warrant issued for Busby’s arrest on the charge of rape. He was arrested about the middle of January and jailed in Detroit, Michigan. The Walker County, Alabama, jury returned an indictment against him on January 28. About March 13, two Walker County deputy sheriffs took Busby into their"
},
{
"docid": "13759293",
"title": "",
"text": "would be reached in a case in which only one, or even several, but less than all, of these factors are found to exist. In addition, although the point was not argued, we note that the District Court, in passing on the allegation that a confession, extracted by coercion, induced the petitioner to plead guilty, appears to have assumed that this cannot be raised on habeas corpus. In this the court erred. The claim may properly be raised on habeas corpus, and if it is proved at the hearing that an illegally obtained confession induced the plea of guilty, the conviction should be set aside unless there has been a voluntary waiver. The Supreme Court has decided that “a conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause.” Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224, 100 L.Ed. 126 (1956). Compare Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958). Lastly, the appellee makes the contention that at all events the District Court was empowered to decide the factual conflict raised by the answer without conducting a hearing. This argument also is without merit. Directly in point is the language of the Supreme Court in Com. of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118-119, 76 S.Ct. 223, 224, 100 L.Ed 126 (1956): “ * * where a denial of these constitutional protections is alleged in an appropriate proceeding by factual allegations not patently frivolous or false on a consideration of the whole record, the proceeding should not be summarily dismissed merely because a state prosecuting officer files an answer denying some or all of the allegations.” On the issues raised the petitioner is entitled to his day in court. Reversed and remanded for a hearing. . In recent cases argued before this court, it has been strongly urged upon us that the course of decisions in the Supreme Court indicates that it is prepared to abandon"
},
{
"docid": "2793823",
"title": "",
"text": "OPINION OF THE COURT PER CURIAM: Before us is an appeal from the district court’s denial of a writ of habeas corpus. Represented by counsel, the appellant in 1949 entered a guilty plea to a general charge of murder before a panel of three judges which made a finding of first degree murder and imposed a life sentence. He took no direct appeal from the finding and the sentence. Seventeen years later, contending that his guilty plea had been unlawfully induced by a coerced confession, appellant filed a petition under the Pennsylvania Post Conviction Hearing Act. Testimony from both appellant and his trial counsel was received at an evidentiary hearing. The state court denied the petition, and the denial was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968). Appellant then filed a habeas corpus petition in the district court, and a second evidentiary hearing was held at which the appellant and trial counsel again testified. The district court denied the petition. We find no merit in any of the contentions raised in this appeal. Although there was no on-the-record colloquy at the taking of the plea, we have previously held that the rule of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) will not be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969); United States ex rel. Fear v. Rundle, 423 F.2d 55 (3 Cir. 1970). In United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3 Cir. 1970), we held that the relator has the burden of showing that his guilty plea was not entered as an intelligent act “done with sufficient awareness of the relevant circumstances and likely consequences.” Our independent review of the records of the degree of guilt hearing and the two evidentiary hearings convinces us that appellant did not meet this burden. The Supreme Court has recently ruled that a competently counseled defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on"
},
{
"docid": "4330466",
"title": "",
"text": "might be cognizant of trial errors notwithstanding the plea is reasonable. This contention is meritless. The trial rulings involved here, pertaining to instructions and evidentiary matters, are not of constitutional magnitude and therefore are not cognizable by a federal court under 28 U.S.C. § 2254. Therefore, the position espoused by federal law on this question is immaterial. Moreover, the cases decided prior to the Brady trilogy indicate that federal courts investigated only constitutional infirmities in assessing the voluntariness and intelligence of a guilty plea. See, e.g., Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956) (uncounseled defendant); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940) (coerced confessions which induced and tainted subsequent guilty pleas). See also, Moreno v. Beto, 415 F.2d 154 (5th Cir. 1969); United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968); Kott v. Green, 387 F.2d 136 (6th Cir. 1967); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); Smiley v. Wilson, 378 F.2d 144 (9th Cir. 1967), all of which involved a judicial investigation of coerced confessions which purportedly induced guilty pleas. Defects neither jurisdictional nor constitutional in nature, occurring at any prior stage in the proceedings, were deemed waived in federal courts by the entry of a guilty plea. United States v. Rook, 424 F.2d 403, 405 (7th Cir.), cert. denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964). We note that the trial court properly and extensively admonished petitioner prior to the acceptance of his plea. While judicial admonitions in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), aid the court in discharging its obligation to ascertain the voluntary and intelligent character of a plea, we agree with the position of the Fifth Circuit that: [A]n equally important aspect of the courts’"
},
{
"docid": "22963361",
"title": "",
"text": "the allegations raised below, a conclusion with which we agree. Counsel does contend, however, that appellant was held virtually incommunicado for two days following his arrest, during which time appellant' was questioned by the Memphis police without having been advised of his right to counsel. It thus appears that appellant is belatedly arguing that the rule of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), should be applied retroactively to this case, an approach which is foreclosed by Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Further, Miranda is clearly in-apposite here since it dealt with the “admissibility of statements” obtained from an individual subjected to custodial police interrogation. Upon pleading guilty, appellant admitted all facts alleged and waived all non-jurisdictional defects. United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965); Gray v. Johnson, 354 F.2d 986 (6th Cir. 1965), cert. denied, 383 U.S. 961, 86 S.Ct. 1232, 16 L.Ed.2d 304 (1966). Conviction and sentence following a plea of guilty are based entirely upon the plea and not upon any evidence which may have been improperly acquired by the prosecuting authorities. United States ex rel. Boucher v. Reincke, supra; Gawantka v. United States, 327 F.2d 129 (3rd Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1650, 12 L. Ed.2d 738 (1964). Appellant apparently attempts to circumvent the waiver attending the plea of guilty by claiming that'the plea was involuntary in that it was the product of, or induced by, certain coerced admissions which had been obtained from him by the police. That this may be a ground for habeas corpus relief appears to be well settled. (See Commonwealth of Pa. ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); , Johnson v. Wilson, 371 F.2d 911 (9th Cir. 1967); Jones v. Cunningham, 297 F.2d 851 (4th Cir. 1962); United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964); Bell v. State of Alabama, 367 F.2d 243 (5th Cir. 1966), cert. denied, 386"
},
{
"docid": "2736318",
"title": "",
"text": "result of open plea bargaining which resulted in dismissal of the habitual criminal count; (3) conferred with his attorney as to his guilty plea and as to the raising of constitutional rights; and (4) does not contend that his guilty plea was involuntary. Under these circumstances, we believe that the petitioner’s guilty plea forecloses his allegation that he was denied a speedy trial. A voluntary plea of guilty constitutes a waiver of all non-jurisdictional defects. Fowler v. United States, 391 F.2d 276 (5th Cir. 1968); Busby v. Holman, 356 F.2d 75 (5th Cir. 1966); United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2nd Cir. 1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). The issue of the right to a speedy trial is non-jurisdictional in nature. Fowler v. United States, supra; United States v. Doyle, 348 F.2d 715 (2nd Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); Pate v. United States, 297 F.2d 166 (8th Cir.), cert. denied, 370 U. S. 928, 82 S.Ct. 1569, 8 L.Ed.2d 507 (1962); United States v. Parrino, 203 F.2d 284 (2nd Cir. 1953). And more important than any automatic bar which may arise from a guilty plea, we believe that the petitioner’s actions relative to entering his plea of guilty indicate an actual, knowing waiver of his claim of an unconstitutional denial of a speedy trial. United States v. Doyle, supra. There is nothing in the record to indicate that the guilty plea was unknowing or involuntary. See, e. g., Luckman v. Burke, 299 F.Supp. 488 (E.D.Wis.1969). Cf., Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940). The decision of the District Court is affirmed."
}
]
|
491352 | "that he was acting with a wanton state of mind. This is especially true since Brown suffered no physical injury. Furthermore, Brown’s claim of racial slurs or epithets reflecting racial prejudice cannot form the basis of a claim under § 1983. See Haussman v. Fergus, 894 F.Supp. 142, 149 (S.D.N.Y.1995) (stating that taunts, insults and racial slurs do not comprise an infringement of constitutional guarantees); Wright v. Santoro, 714 F.Supp. 665, 667 (S.D.N.Y.) (stating that discriminatory statements reflecting racial prejudice are not actionable under § 1983 where not connected to any physical injury), aff'd, 891 F.2d 278 (2d Cir.1989). Without any showing of injury or damage, such claims of verbal harassment are insufficient to state a claim under § 1983. See REDACTED Coughlin, 698 F.2d 112, 126 (2d Cir.1983)) (holding that a claim that a prison guard called plaintiff names did not allege any appreciable injury and was properly dismissed). Brown’s suit as against the State of New York is also barred by the Eleventh Amendment. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). CONCLUSION For the reasons set forth above, defendants’ motion for summary judgment is granted. The Clerk of the Court is directed to enter judgment accordingly and close the above-captioned action. It is SO ORDERED. . At the Tier II hearing, Brown testified that when he was out in the hallway, he ""was yelling" | [
{
"docid": "18779297",
"title": "",
"text": "a guard at the Alden Correctional Facility in Alden, New York, where Purcell was then incarcerated. Six of the defendants moved to dismiss the complaint for failure to state a cause of action. Purcell filed several sets of lengthy responding papers which attempted to clarify the claims made in the complaint. These papers also alleged that various parties at several different institutions had punished Purcell for his legal efforts and denied him proper medical treatment. By decision and order dated August 2, 1985, the district court summarily dismissed Purcell’s complaint with respect to all claims and defendants. Addressing Purcell’s claims that prison guards called him names and denied him pens, the court stated that the name calling claim did not allege a constitutional violation and that the denial of pens claim was refuted by Purcell’s writing to the court on several occasions. The dismissal of the latter claim was proper because the complaint did not allege any injury stemming from the denial of pens on one occasion. In view of the apparent fact that Purcell has not suffered harm from the denial, even liberal pleading rules do not suggest that such an allegation was implicit in the complaint. The claim that a prison guard called Purcell names also did not allege any appreciable injury and was properly dismissed. See McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir.1983). The district court’s judgment was also correct insofar as it dismissed those portions of the retaliation and denial of medical treatment claims that were directed at persons not named in the original complaint. Purcell’s prolix allegations about the denial of medical treatment do not meet even the most liberal pleading requirements and were properly dismissed for, among other reasons, failure properly to join or serve parties. See Fed.R.Civ.P. 12(b)(5). The district court did not have the benefit of our decision in Washington v. James, 782 F.2d 1134 (2d Cir.1986), when it decided the motion to dismiss Purcell’s claims of violations of his right to send mail and receive periodicals. In Washington, we held that even two alleged instances of mail interference were"
}
]
| [
{
"docid": "18669737",
"title": "",
"text": "alludes to it in his memorandum of law. See Haussman Aff. at ¶ 7. . If such were the case, any plaintiff arrested for driving while intoxicated, who was later found not to have been intoxicated, could defeat a motion for summary judgment by simply asserting that, in his untrained opinion, he passed the original sobriety tests. . Plaintiff states that this was caused by the cold weather. Defendants assert that, even aside from the shaking, plaintiff was simply unable to keep one leg raised while standing on the other. . There is some discrepancy between the point of light that Haussman says that he was able to follow, see Haussman Aff. at ¶ 7, and the pen that defendants assert that plaintiff's eyes followed in an uneven manner, see Defendant Mem. at 8. The Court finds it to be immaterial, however, whether it was a pen or a light that plaintiff was told to track. . Specifically, plaintiff states that he was able to complete successfully the finger to nose test, the leg raise, and a forward recital of the alphabet. See Haussman Aff. at ¶ 7. The Court notes that although plaintiff also states that he was able to follow a flashlight as it moved from side to side, this conclusory assertion is inadequate to create a factual dispute. First, plaintiff could not have known how well his eyes followed the flashlight. Second, the point of the test in question is to detect uneven movements in the eyes and not simply to determine if a person can follow a light from one point to another. . Regarding these tests, plaintiff either does not contest his poor performance or has no information upon which to reach a conclusion concerning his performance. . The Court notes that in the instant case, plaintiff voluntarily acceded to the alcocensor and urine tests. . Offensive racial comments cannot form the basis of a § 1983 claim. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986); Wright v. Santoro, 714 F.Supp. 665, 666-67 (S.D.N.Y.) (\"discriminatory statements reflecting racial prejudice not actionable under §"
},
{
"docid": "7182838",
"title": "",
"text": "law or policy has been applied in an intentionally discriminatory race-based manner, or that a facially neutral statute or policy with an adverse effect was motivated by discriminatory animus.” Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir.2001); see also Vilkhu, 2008 WL 1991099, at *5. With regard to the governmental act in question, verbal harassment alone does not amount to a constitutional deprivation. Purcell v. Coughlin; 790 F.2d 263, 265 (2d Cir.1986) (holding that -name-calling without “any appreciable injury” did not violate inmate’s constitutional rights); see also D’Attore v. New York City, No. 10-CV-6646 (WHPXJCF), 2012 WL 2952853, at *6 (S.D.N.Y.. July 19, 2012) (citing Baskerville v. Goord, No. 97-CV-6413, 2000 WL 897153, at *3 (S.D.N.Y. July 6, 2000) (“Mere verbal abuse or the use of racial slurs or epithets reflecting racial prejudice, although reprehensible, does not form the basis of a claim pursuant to [Section] 1983.”)); Haussman v. Fergus, 894 F.Supp. 142, 149 n. 20 (S.D.N.Y. 1995) (“Offensive racial comments cannot form the basis of a § 1983 claim.”). However, where verbal statements are accompanied by an appreciable injury, an equal protection claim may be cognizable. See Cole v. Fischer, 379 Fed.Appx. 40, 43 (2d Cir.2010) (summary order) (“When the verbal harassment and simultaneous physical abuse ... are considered together, we have little trouble concluding that plaintiffs allegations were sufficient to state a § 1983 Claim for discrimination on the basis of race and religion.”); see also Baskerville v. Goord, No. 97-CV-6413, 1998 WL 778396, at *7 (S.D.N.Y. Nov. 5, 1998) (“Where, however, such statements are shown to be connected with physical injury, a § 1983 claim may indeed lie.”) aff'd sum nom. Baskerville v. Mulvaney, 411 F.3d 45 (2d Cir.2005). C. Conspiracy Claims under Sections 1983 and 1985 Defendants moving papers appear to presume that Plaintiff’s conspiracy claim is brought pursuant only to § 1983. (Defs.’ Mem. of Law in Supp. of Mot. for Partial Summ. J. (“Defs.’ Mem.”) (Dkt. 40) at 6.) Efowever, Plaintiffs Amended Complaint specifically mentions § 1985, which also prohibits conspiracies to interfere with civil rights. (Am.Compl. ¶¶ 1, 7, 21, 24, 29.)"
},
{
"docid": "13965985",
"title": "",
"text": "to Rikers’ transport vehicles, Alster adduces evidence of only one injury to his arm. Because hospital records reveal no fractures or dislocation, this injury is not sufficiently serious to meet the objective prong of the Eighth Amendment standard. See Allah v. Goord, 405 F.Supp.2d 265, 276 (S.D.N.Y.2005) (objective element met only where wheelchair-bound prisoner suffered serious head and back injuries in transit). Accordingly, this Court grants summary judgment on Alster’s § 1983 claims against the Municipal Defendants premised on his conditions of confinement. C. Excessive Force The Eighth Amendment protects inmates against the use of excessive force by prison guards and officials. Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). Nevertheless, the force Alster described in his deposition — that Bonito kicked him twice and frequently kicked his wheelchair — is “not sufficiently serious or harmful to reach constitutional dimensions.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997). Significantly, Alster “does not maintain that he experienced any pain or injury as a result of the physical contact.” Boddie, 105 F.3d at 862. As for Bonito’s use of profanity and racial epithets, “threats or verbal harassment, without any injury or damage,” are not cognizable under § 1983. Ramirez v. Holmes, 921 F.Supp. 204, 210 (S.D.N.Y. 1996). Accordingly, because this Court finds the degree of force used to be de minimis as a matter of law, Griffin v. Crippen, 193 F.3d 89, 92 (2d Cir.1999), summary judgment is appropriate on Alster’s excessive force claims. VI. ADA Claims A. Individual Capacity Claims Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA does not provide for individual capacity suits against state or city officials. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.2001). Accordingly, Alster’s ADA claims against the Municipal Defendants in their individual capacities are dismissed. B. State, City &"
},
{
"docid": "16716377",
"title": "",
"text": "with the Hawaii Administrative Procedures Act. Conner’s argument appears to make a state claim. Such claims are barred in § 1983 suits. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984). Summary judgment on this issue is affirmed. 8.The Program as a Behavior Modification Program Conner argues that the Program is invalid because its policy of providing privileges for good conduct is a behavior modification program of the type rejected in Canterino v. Wilson, 546 F.Supp. 174 (W.D.Ky.1982), as amended, 562 F.Supp. 106, aff'd, 875 F.2d 862 (6th Cir.1989), cert. denied, 493 U.S. 991, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989). Can-terino was decided under an eighth amendment theory. Construing Conner’s complaint and affidavits liberally, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), United States v. Bigman, 906 F.2d 392, 395 (9th Cir.1990), we conclude that Conner contends that the prison’s behavior modification program is so unnecessarily restrictive as to constitute cruel and unusual punishment. Conner alleges that Defendants Falk, Sakai, Oku, and Shohet are responsible for the deprivation he contends he has suffered. His contention fails as to Defendant Falk because his affidavit is made on information and belief, not on the personal knowledge required by Fed.R.Civ.Pro. 56(e). See Taylor v. List, 880 F.2d at 1045 n. 8. His claim fails as to Defendants Sakai, Oku, and Shohet because he neglects to set forth facts that proximately connect them with the constitutional injury he contends they inflicted. Id. at 1045; Leer v. Murphy, 844 F.2d at 633-34. Additionally, Conner asserts that the Program violates Haw.Rev.Stat. § 465-2, which requires those who practice psychology to be licensed. Such a contention presents a state law claim, which is barred under Pennhurst, 465 U.S. at 121, 104 S.Ct. at 919. 9. 106 Minor Misconduct Warnings Conner claims that he was harassed by prison officials through numerous 106 warnings. These are written citations that in themselves lead to no disciplinary action but the accumulation of which may lead to disciplinary segregation. Even if such warnings inflinge on"
},
{
"docid": "5370687",
"title": "",
"text": "constitutional violations. See Villante v. Dep’t of Corrections of City of New York, 786 F.2d 516, 519 (2d Cir.1986). In light of the evidence that was obvious to see, defendants had a duty to investigate and take steps to correct any constitutional violations perpetrated by subordinate prison officials. See Eng v. Coughlin, 684 F.Supp. 56, 65-66 (S.D.N.Y.1988). Defendants are all charged with knowledge of the constitutional violations that occurred over a period of several years. Allowing such a policy and custom to continue constitutes the requisite personal involvement and subjects defendants to liability under § 1983. Williams v. Smith, supra, 781 F.2d at 323. Furthermore, defendants are liable for their gross negligence in “managing” subordinates who perpetuated the discriminatory customs concerning jobs, housing and discipline. Defendants also claim, albeit with very little discussion (defendants’ post-trial brief at 92) that the complaint should be dismissed because the proof failed to establish that defendants acted pursuant to a policy or pattern of discrimination. Relying on language from Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985), defendants claim that the defendants, sued in their official capacities, are not liable unless the Court finds that defendants acted pursuant to such a policy or custom. Defendants’ argument is without merit for several reasons. Kentucky v. Graham was not a case involving injunctive relief against state officials for violations of federal law. The underlying action was a claim for damages and the decision related to defendants’ responsibility for attorneys fees in such an action. It is well-established that one cannot sue a state or a state official in his official capacity for damages because of the Eleventh Amendment and the principle of sovereign immunity. It is, however, equally well-established that the Eleventh Amendment does not bar an action for prospective, equitable relief against a state official who is charged with violating federal law. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102, 104 S.Ct. 900, 909, 79 L.Ed.2d 67 (1984). The Supreme"
},
{
"docid": "16577982",
"title": "",
"text": "Claims Throughout his lengthy complaint, plaintiff claims that he was verbally abused, taunted and threatened by defendants. In effect, plaintiff is alleging that his Eighth Amendment right to be free of cruel and unusual punishment has been violated by this verbal abuse. However, “harassment or profanity alone, ‘unaccompanied by any [physical] injury, no matter how inappropriate, unprofessional, or reprehensible it might seem,’ does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983.” Shabazz v. Pico, 994 F.Supp. 460 (S.D.N.Y.1998). Accord Patton v. Przybylski, 822 F.2d 697 (7th Cir.1987) (determining that derogatory remarks do not constitute a constitutional violation); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986) (affirming the dismissal of a claim that a prison guard called plaintiff names); Hurdle v. Ackerhalt, 1993 WL 71370 (N.D.N.Y. Mar.8, 1993) (allegations of harassment and threats do not rise to the level of a constitutional violation). Accordingly, plaintiffs verbal abuse claims are hereby dismissed with prejudice. The Search Claims Plaintiff alleges that the defendants unlawfully searched his law library desk, memory typewriter and the crate in his cell containing his legal materials. To the extent that plaintiff is arguing that his right to privacy has been violated, the courts have continually held that prisoners have only limited rights to privacy. See e.g. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (upholding constitutionality of double-bunking and body cavity searches); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (prisoners have no reasonable expectations of privacy in their cell). To the extent that plaintiff is arguing that his right of access to the courts has been violated, plaintiff also fails to state a cognizable constitutional claim. While it is true that under the Constitution a correctional facility must provide an inmate with meaningful access to the courts, Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the mere search of plaintiffs law library desk and crate of legal materials, without more, does not state a constitutional claim. “ ‘[T]he Constitution"
},
{
"docid": "16694344",
"title": "",
"text": "property or liberty interest, nor has she alleged that Rice’s issuance of the ticket was so shockingly arbitrary as to constitute a gross abuse of governmental authority. Natale v. Town of Ridgefield, 170 F.3d 258 (2d Cir.1999). If a claim that a police officer’s deliberate indifference caused the death of a motorist during a high-speed chase does not violate substantive due process, County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), then surely the issuance of a parking ticket on a single occasion does not do so. Plaintiff alleges that Officer Rice asked her, “What kind of work do you do to have a vehicle?” (Cplt. J 10). That statement, of course, cannot form the basis of a § 1983 claim. See Haussman v. Fergus, 894 F.Supp. 142, 149 (S.D.N.Y.1995) (offensive racial comments cannot form the basis of a § 1983 claim); see also Wright v. Santoro, 714 F.Supp. 665, 666-67 (S.D.N.Y.1989) (“discriminatory statements reflecting racial prejudice not actionable under § 1983 where not shown to be connected with physical injury”), aff'd, 891 F.2d 278 (2d Cir.1989); Zeno v. Cropper, 650 F.Supp. 138, 141 (S.D.N.Y.1986) (“the use of [vile] language, no matter how abhorrent or reprehensible, cannot form the basis for a § 1983 claim”) (citation omitted). Nor does plaintiff allege facts tending to show a violation of procedural due process. In fact, plaintiff got all the process she was due. She got • a ticket; she fought the ticket in traffic court; she won and the summons was dismissed. Finally, plaintiff has not adequately alleged a denial of equal protection of the laws. The facts pleaded by plaintiff in her complaint negate any inference that Rice decided to issue the summons out of racial animus. She alleges that the officer targeted her car for attention at a time when he could not possibly have known who the owner of the car was or what the owner’s race was. Then when plaintiff got the ticket, she was given access to the courts, as required by law, and the court promptly redressed the officer’s error."
},
{
"docid": "7182837",
"title": "",
"text": "3924683 (E.D.N.Y; Sept. 29, 2010). Alternatively, a plaintiff may claim an equal protection violation under the “class of one” theory, asserting that he or she was “intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment,” despite the fact that’’the plaintiff does not claim membership in a particular class or group. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see also Giordano v. City of New York, 274 F.3d 740, 743 (2d Cir.2001). Generally, a plaintiff challenging law enforcement conduct on equal protection grounds “must demonstrate that ... he was treated differently from other similarly-situated individuals.” Vilkhu v. City of New York, No. 06-CV-2095 (CPS)(JO), 2008 WL 1991099, at *5 (E.D.N.Y. May 5, 2008). However, a plaintiff need not “show a better treated, similarly situated group of individuals of a different race in order to establish a claim of denial of equal protection” where he or she has alleged “an express racial classification, or alleges that a facially-neutral law or policy has been applied in an intentionally discriminatory race-based manner, or that a facially neutral statute or policy with an adverse effect was motivated by discriminatory animus.” Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir.2001); see also Vilkhu, 2008 WL 1991099, at *5. With regard to the governmental act in question, verbal harassment alone does not amount to a constitutional deprivation. Purcell v. Coughlin; 790 F.2d 263, 265 (2d Cir.1986) (holding that -name-calling without “any appreciable injury” did not violate inmate’s constitutional rights); see also D’Attore v. New York City, No. 10-CV-6646 (WHPXJCF), 2012 WL 2952853, at *6 (S.D.N.Y.. July 19, 2012) (citing Baskerville v. Goord, No. 97-CV-6413, 2000 WL 897153, at *3 (S.D.N.Y. July 6, 2000) (“Mere verbal abuse or the use of racial slurs or epithets reflecting racial prejudice, although reprehensible, does not form the basis of a claim pursuant to [Section] 1983.”)); Haussman v. Fergus, 894 F.Supp. 142, 149 n. 20 (S.D.N.Y. 1995) (“Offensive racial comments cannot form the basis of a § 1983 claim.”). However, where verbal statements"
},
{
"docid": "11285136",
"title": "",
"text": "cancellation of his June 13 dental appointment. According to plaintiff, he was threatened with disciplinary action, physical violence, an extension of his time in keeplock, and possible segregation, if he continued to seek dental care. The plaintiff does not allege that he suffered any injury or damages from these alleged threats. Such alleged threats do not amount to violations of constitutional rights. Verbal assault, standing alone, is not a “judicially cognizable injurfy] in a § 1983 civil rights action.” Garcia v. Torreggiani, 1985 WL 3957, *2 (S.D.N.Y. Nov. 26,1985) (No. 84 Civ. 9125 (LBS)). See also Wright v. Santoro, 714 F.Supp. 665, 667 (S.D.N.Y.), aff'd, 891 F.2d 278 (2d Cir.1989) (harassment by prison guards, without physical injury, does not amount to a constitutional violation); Zeno v. Cropper, 650 F.Supp. 138, 141 (S.D.N.Y.1986) (in prison context “vile and abusive language ... ‘no matter how abhorrent or reprehensible cannot form the basis for a § 1983 claim’ ”). The plaintiffs claim of alleged threats does not allege a constitutional claim under § 1983. Moreover, the allegations could not' support a claim against any of the individual defendants because none of the defendants is alleged to have personally made the threats to plaintiff. See e.g., McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). The plaintiff has also failed to state a claim for conspiracy under 42 U.S.C. §§ 1983, 1985(3) and 1986. To sustain a conspiracy claim under 42 U.S.C. § 1983, a plaintiff must demonstrate that a defendant “acted in a wilful manner, culminating in an agreement, understanding or ‘meeting of the minds’, that violated the plaintiffs rights ... secured by the Constitution or the federal courts.” Duff v. Coughlin, 794 F.Supp. 521, 525 (S.D.N.Y.1992), quoting Katz v. Morgenthau, 709 F.Supp. 1219, 1231 (S.D.N.Y.), aff'd in part, rev’d in part, 892 F.2d 20 (2d Cir.1989). The plaintiff has not pleaded a conspiracy because he has not pleaded the facts showing that the defendants actually entered into such an agreement. Conclusory, vague and general allegations of conspiracy such as those"
},
{
"docid": "17412083",
"title": "",
"text": "under § 1983. See, e.g., Harris v. Keane, 962 F.Supp. 397, 406 (S.D.N.Y.1997) (“Allegations of threats, verbal harassment or profanity, without any injury or damage, do not state a claim under § 1983.”) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986)). Hence, the claim of verbal harassment is dismissed with prejudice. 6. McCoy States Claims of Excessive Force While McCoy has sufficiently pled facts to state two Eighth Amendment claims based on the use of excessive force, he has served only one defendant involved in each incident, and, as discussed above, McCoy may not proceed on the claims as they are unexhausted. a. January 23,1998 Incident The Eighth Amendment’s prohibition against cruel and unusual punishment protects prisoners from the “unnecessary and wanton infliction of pain” by prison officials. Romano v. Howarth, 998 F.2d 101, 104 (2d Cir.1993). The inquiry into an Eighth Amendment claim consists of both an objective and a subjective prong. See id. at 105. Objectively, a plaintiff must show that the alleged use of force was sufficiently serious to be actionable. Only the use of physical force that is “repugnant to the conscience of mankind” amounts to a constitutional violation. Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Subjectively, the plaintiff must then show that prison officials acted wantonly. See Romano, 998 F.2d at 105. A finding of wantonness depends on “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. Applying these standards to the January 23, 1998 incident involving Officers Moo-Young, Cruz, and Bedford, McCoy’s allegations are sufficient to state an excessive force claim. While the complaint does not set out in detail the extent of the injuries he suffered, McCoy states that he was treated in the emergency room for second-degree burns to his right arm. McCoy also alleges facts from which wantonness can be inferred. According to the complaint, the officers did not apply force to “maintain or restore discipline,” but to retaliate against McCoy for comments he had made to one of the"
},
{
"docid": "2877597",
"title": "",
"text": "showing of physical injury or damage, claims of verbal harassment, including taunts, insults, and racial slurs cannot form the basis of a claim under Section 1983.”) [citations omitted]; Shabazz, 994 F.Supp. at 474 (dismissing plaintiff’s claim because he \"does not allege that defendants inflicted any physical injury on him in conjunction with their verbal taunts”) [emphasis added], aff'd. 205 F.3d 1324 (2d Cir.2000); cf 42 U.S.C. § 1997e(e) (\"No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.\"). . See Richardson v. Hillman, 201 F.Supp.2d 222, 227 (S.D.N.Y.2002) (”[R]acial slurs that intentionally inflict psychological pain implicate a constitutional right, as long as the pain is not de minimis.\") [citation omitted]; Shabazz, 994 F.Supp. at 474 (\"Under certain circumstances, the intentional infliction of psychological pain may constitute an Eighth Amendment violation, so long as the pain is not de minimus. ”) [citation omitted], aff'd, 205 F.3d 1324 (2d Cir.2000); St. Germain v. Goord, 96-CV-1560, 1997 WL 627552, at *4 (N.D.N.Y. Oct. 8, 1997) (Pooler, J.) (”[I]ntentional infliction of psychological pain may also constitute a violation of the Eighth Amendment as long as such pain is not de minimus.” ) [citations omitted]; Show v. Patterson, 955 F.Supp. 182, 192 (S.D.N.Y. 1997) (name-calling and laughing by correctional officers during strip search did not violate Eighth Amendment because it was no more than “de minimis psychological force\") [citation omitted]; Duamutef v. Leonardo, 91-CV-1100, 1993 WL 428509, at *13 (N.D.N.Y. Oct. 22, 1993) (Hurd, M.J.) (plaintiff's allegation that the strip searches caused him to \"suffer constant humiliation, unnecessary psychological pain and distress” did not rise to level of Eighth Amendment violation), adopted by 1994 WL 86700 (N.D.N.Y. March 7, 1994) (McCurn, J.), appeal dismissed, 47 F.3d 1158 (2d Cir.1995); Jermosen v. Coughlin, 87-CV-6267, 1993 WL 267357, at *6 (S.D.N.Y. July 9, 1993) (dismissing prisoner’s Eighth Amendment claim because \"the Court finds that any psychological pain caused to Jermosen was de minimus\") [citation omitted]. .See, e.g., McKethan, 1998 WL 178804, at"
},
{
"docid": "16577981",
"title": "",
"text": "Authorization with respect to this action. Therefore, plaintiff is granted permission to proceed informa pauperis. Section 1915 mandates that when the court grants in forma pauperis status, it also must conduct an initial screening of the action to ensure that it goes forward only if it meets certain qualifications. A review of plaintiffs complaint demonstrates that plaintiffs claims are based on indisputably baseless legal theories. As a result, this action is subject to dismissal under 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to state a claim under § 1983, a plaintiff must allege: (1) that the challenged conduct was attributable at least in part to a person acting under color of state law; and (2) that such conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir.1993). The Verbal Abuse Claims Throughout his lengthy complaint, plaintiff claims that he was verbally abused, taunted and threatened by defendants. In effect, plaintiff is alleging that his Eighth Amendment right to be free of cruel and unusual punishment has been violated by this verbal abuse. However, “harassment or profanity alone, ‘unaccompanied by any [physical] injury, no matter how inappropriate, unprofessional, or reprehensible it might seem,’ does not constitute the violation of any federally protected right and therefore is not actionable under 42 U.S.C. § 1983.” Shabazz v. Pico, 994 F.Supp. 460 (S.D.N.Y.1998). Accord Patton v. Przybylski, 822 F.2d 697 (7th Cir.1987) (determining that derogatory remarks do not constitute a constitutional violation); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986) (affirming the dismissal of a claim that a prison guard called plaintiff names); Hurdle v. Ackerhalt, 1993 WL 71370 (N.D.N.Y. Mar.8, 1993) (allegations of harassment and threats do not rise to the level of a constitutional violation). Accordingly, plaintiffs verbal abuse claims are hereby dismissed with prejudice. The Search Claims Plaintiff alleges that the defendants unlawfully searched his"
},
{
"docid": "960770",
"title": "",
"text": "cannot evade Rooker-Feldman by casting his claim in the guise of a federal civil rights violation.” See Kashelkar v. MacCartney, 79 F.Supp.2d 370, 373 (S.D.N.Y.1999), aff'd, 234 F.3d 1262, 2000 WL 1678774 (2d Cir.2000) Accordingly, I respectfully recommend that defendants’ motion be granted and plaintiffs claims against all defendants be dismissed for lack of subject matter jurisdiction pursuant to the Rooker-Feldman Doctrine. III. Eleventh Amendment A. Appellate Division Plaintiff seeks monetary damages from the Appellate Division. The Eleventh Amendment provides: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. The Amendment has subsequently been interpreted by the Supreme Court to extend to suits brought by any person against any state in federal court. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Mancuso v. New York State Thruway Auth., 86 F.3d 289 (2d Cir.1996). The party wishing to assert Eleventh Amendment immunity “bears the burden of proving its applicability.” Christy v. Pennsylvania Turnpike Comm., 54 F.3d 1140, 1144 (3d Cir.1995). Here, defendants bear the burden. Unless a state consents to suit, the Eleventh Amendment bars suits brought against it in federal court by its own citizens. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). New York State has not consented to suit' in federal court. Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 38-40 (2d Cir.1977). Nor does Section 1983 [42 U.S.C. § 1983] abrogate New York State’s immunity from suit. See Quern v. Jordan, 440 U.S. 332, 343-45, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). A suit against a state court, such as the Appellate Division named as defendants in this matter, is considered to be a suit against the state, and is therefore also prohibited"
},
{
"docid": "18669738",
"title": "",
"text": "and a forward recital of the alphabet. See Haussman Aff. at ¶ 7. The Court notes that although plaintiff also states that he was able to follow a flashlight as it moved from side to side, this conclusory assertion is inadequate to create a factual dispute. First, plaintiff could not have known how well his eyes followed the flashlight. Second, the point of the test in question is to detect uneven movements in the eyes and not simply to determine if a person can follow a light from one point to another. . Regarding these tests, plaintiff either does not contest his poor performance or has no information upon which to reach a conclusion concerning his performance. . The Court notes that in the instant case, plaintiff voluntarily acceded to the alcocensor and urine tests. . Offensive racial comments cannot form the basis of a § 1983 claim. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986); Wright v. Santoro, 714 F.Supp. 665, 666-67 (S.D.N.Y.) (\"discriminatory statements reflecting racial prejudice not actionable under § 1983 where not shown to be connected with physical injury.” (citation omitted)), aff'd, 891 F.2d 278 (2d Cir.1989); Zeno v. Cropper, 650 F.Supp. 138, 141 (S.D.N.Y.1986) (Leisure, J.) (\"the use of such language, no matter how abhorrent or reprehensible, cannot form the basis for a § 1983 claim.”) (citation omitted). . A defense of qualified immunity should be decided at the earliest possible stage in a litigation, and it is a defense that often can and should be decided on a motion for summary judgment. See Castro v. U.S., 34 F.3d 106, 112 (2d Cir. 1994). On a motion for summary judgment on the ground of qualified immunity, defendant bears the burden of showing that as to that defense there is no genuine issue of material fact. Id. . “[W]hen reasonable officers could disagree as to whether probable cause exists, the immunity defense is available.” Weg v. Macchiarola, 995 F.2d 15, 18 (2d Cir.1993) (citation omitted); Chayo v. Kaladjian, 844 F.Supp. 163, 167 (S.D.N.Y.1994) (Leisure J.). . Certainly officers of reasonable competency could disagree on"
},
{
"docid": "4099210",
"title": "",
"text": "could find for the nonmoving party, or whether the evidence “is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. 2505. II. The Eleventh Amendment Bars the Claims Against the State of New York Veloz seeks damages in this suit from the State of New York. However, absent waiver or consent — and neither exist in this case — the Eleventh Amendment bars a suit in federal court against a state. The Eleventh Amendment to the United States Constitution states: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State.” Indeed, the Supreme Court has interpreted the Eleventh Amendment as barring suits by citizens against their own states. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 237-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Welch v. Texas Department of Highways and Public Transportation, 483 U.S. 468, 472, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Furthermore, the provisions of § 1983 were not intended to override a state’s immunity. See Dube v. State University of N.Y., 900 F.2d 587, 594 (2d Cir.1990) (citing Quern v. Jordan, 440 U.S. 332, 340-42, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979)). Accordingly, Veloz’s claim against the State of New York must be dismissed. III. Summary Judgment Is Granted in Favor of Defendants Because There Exists No Issue of Material Fact as to Whether Dr. Organ Violated Vel-oz’s Right Under the Eighth Amendment “To state a viable § 1983 claim, plaintiff must show that officials were acting under color of state law and their actions deprived the plaintiff of a right guaranteed by the constitution or laws of the United States.” Bryant v. Maffucci, 923 F.2d 979, 982 (1991); see Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). According to Veloz, his Eighth Amendment right to"
},
{
"docid": "14315195",
"title": "",
"text": "v. Fletcher, 67 F.3d 412, 426 (2d Cir.1995) (citing Monell, 436 U.S. at 690-94, 98 S.Ct. at 2035-38) (citations omitted). Finally, plaintiffs must allege these elements with particularity. Leon v. Murphy, 988 F.2d 303, 310-11 (2d Cir.1993). Since plaintiffs have not alleged racial or class-based animus, the elements of conspiracy with particularity, and have not opposed defendants’ motion to dismiss the Section 1985 claim, that motion is granted. CONCLUSION For the reasons given above, it is hereby ORDERED that defendants’ motion for summary judgment on plaintiffs’ Section 1983 claim is granted. IT IS FURTHER ORDERED that defendants’ motion to dismiss plaintiffs’ Section 1985 claim is granted. IT IS FURTHER ORDERED that the Clerk of Court shall close the case. SO ORDERED. . The caption of the Complaint filed by Muench, Parks and Ruiz lists the defendants name and then states \"as _,” giving the appropriate title for that individual. The caption of the Complaint filed by Soto and Acosta merely lists the name of the individual defendant and then gives that person’s title. . In a suit against state officials — which is construed as a suit against the state itself, Gan v. City of New York, 996 F.2d 522, 529 (2nd Cir.1993) — unless the state has waived its Eleventh Amendment immunity or Congress has overridden it, a party cannot recover monetary damages. Yorktown Medical Laboratory v. Perales, 948 F.2d 84, 89 (2nd Cir.1991). Thus, if a party seeks monetary damages, the suit should be construed as one against the state official in his or her individual capacity. . As a prerequisite to maintaining a Section 1983 action against an official in their personal capacity, a plaintiff must allege a defendant's direct or personal involvement in the alleged constitutional deprivation. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994). Liability for damages in a Section 1983 action may not be based on the respondeat superior or vicarious liability doctrines. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Supervisors, however, may be found liable under Section 1983 in"
},
{
"docid": "2877596",
"title": "",
"text": "quotation marks and citation omitted]; Moncrieffe, 2000 WL 949457, at *3 (\"Similarly, threats do not amount to violations of constitutional rights.”) [internal quotation marks and citation omitted]; Young v. Coughlin, 93-CV-0262, 1998 WL 32518, at *6 (S.D.N.Y. Jan. 29, 1998) (\"Young ... does not allege that he suffered any injury or damage from [Dr. Tufua's] alleged threats. The threat was in all events short lived____In these circumstances, the threat does not constitute a constitutional violation under Section 1983.”) [citation omitted]; Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y. 1995) (\"The plaintiff does not allege that he suffered any injury or damages from these alleged threats. Such alleged threats do not amount to violations of constitutional rights.\") [citations omitted]. . See Murray, 2007 WL 956941, at *8 (\"Furthermore, Plaintiff did not allege any physical injury as a result of the statements and threats.... Therefore, Plaintiff’s claim is not actionable under 42 U.S.C. § 1983 ....”) [citations omitted; emphasis added]; McKethan v. Carbone, 97-CV-0061, 1998 WL 178804, at *2 (N.D.N.Y. Apr. 13, 1998) (Pooler, J.) (\"[W]ithout any showing of physical injury or damage, claims of verbal harassment, including taunts, insults, and racial slurs cannot form the basis of a claim under Section 1983.”) [citations omitted]; Shabazz, 994 F.Supp. at 474 (dismissing plaintiff’s claim because he \"does not allege that defendants inflicted any physical injury on him in conjunction with their verbal taunts”) [emphasis added], aff'd. 205 F.3d 1324 (2d Cir.2000); cf 42 U.S.C. § 1997e(e) (\"No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.\"). . See Richardson v. Hillman, 201 F.Supp.2d 222, 227 (S.D.N.Y.2002) (”[R]acial slurs that intentionally inflict psychological pain implicate a constitutional right, as long as the pain is not de minimis.\") [citation omitted]; Shabazz, 994 F.Supp. at 474 (\"Under certain circumstances, the intentional infliction of psychological pain may constitute an Eighth Amendment violation, so long as the pain is not de minimus. ”) [citation omitted], aff'd, 205 F.3d 1324 (2d Cir.2000); St. Germain"
},
{
"docid": "18685365",
"title": "",
"text": "Immunity Defendants DOCS, the Division of Parole, the New York State Commission of Correction, and the individual Parole Defendants have moved to dismiss the Second Amended Complaint to the extent that they have been sued in their official capacities, on the ground that the plaintiffs complaint is barred by the Eleventh Amendment. The Eleventh Amendment to the United States Constitution bars suit in federal court against a State, or one of its agencies or departments, unless the State has consented to be sued, or Congress has enacted legislation overriding the State’s Eleventh Amendment immunity. See Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 906-08, 79 L.Ed.2d 67 (1984); Owens v. Coughlin, 561 F.Supp. 426, 428 (S.D.N.Y.1983) (Eleventh Amendment requires dismissal of suit brought against DOCS). Although the Eleventh Amendment by its terms does not bar federal courts from hearing suits brought against a State by its own citizens, the Supreme Court “has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.” Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974) (citations omitted). “This bar exists whether the relief sought is legal or equitable.” Papasan, 478 U.S. at 276, 106 S.Ct. at 2939 (citing Pennhurst, 465 U.S. at 100-01, 104 S.Ct. at 907-09); see Santiago v. New York State Dep’t of Correctional Servs., 945 F.2d 25, 32 (2d Cir.1991) (Although plaintiffs “claim for an injunction against DOCS is not barred by the Eleventh Amendment’s ban on retroactive damage actions, it too must be dismissed because it does not follow the requirement, established in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), that a plaintiff seeking prospective relief from the state must name as defendant a state official rather than the state or a state agency directly....”), cert. denied, 502 U.S. 1094, 112 S.Ct. 1168, 117 L.Ed.2d 414 (1992). Thus, because the State"
},
{
"docid": "16694343",
"title": "",
"text": "for discrimination pursuant to 42 U.S.C. § 1983. “In order to state a cognizable claim under Section 1983, [plaintiff] must allege conduct under color of state law that deprived him of rights secured by the Constitution or laws of the United States.” Katz v. Klehammer, 902 F.2d 204, 206; see also Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). This Court cannot determine a § 1983 controversy unless there is a constitutional claim of sufficient substance to support federal jurisdiction. See Hagans v. Lavine, 415 U.S. 528, 536, 94 S.Ct. 1372, 1378, 39 L.Ed.2d 577 (1974). Plaintiff claims, in her complaint, that she was denied equal protection of under the law (CpltJ 18). In her response to defendant’s motion, she reinterprets her claim as one for violation of her right to due process. Plaintiff has not come close to alleging any violation of due process. Nothing about the issuance of a parking ticket implicates the rarely-used doctrine of “substantive due process.” Plaintiff has not alleged any violation of either a property or liberty interest, nor has she alleged that Rice’s issuance of the ticket was so shockingly arbitrary as to constitute a gross abuse of governmental authority. Natale v. Town of Ridgefield, 170 F.3d 258 (2d Cir.1999). If a claim that a police officer’s deliberate indifference caused the death of a motorist during a high-speed chase does not violate substantive due process, County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), then surely the issuance of a parking ticket on a single occasion does not do so. Plaintiff alleges that Officer Rice asked her, “What kind of work do you do to have a vehicle?” (Cplt. J 10). That statement, of course, cannot form the basis of a § 1983 claim. See Haussman v. Fergus, 894 F.Supp. 142, 149 (S.D.N.Y.1995) (offensive racial comments cannot form the basis of a § 1983 claim); see also Wright v. Santoro, 714 F.Supp. 665, 666-67 (S.D.N.Y.1989) (“discriminatory statements reflecting racial prejudice not actionable under § 1983 where not shown to be connected with"
},
{
"docid": "11285135",
"title": "",
"text": "S.Ct. 1827, 104 L.Ed.2d 338 (1989) (a brain tumor) and Hathaway v. Coughlin, 37 F.3d 63 (2d Cir.1994) (delay in removing broken pins from hip for over two years and nearly fifty complaints of pain). Conversely, in addition to toothaches, other conditions that have failed to satisfy the constitutional “serious medical need” standard are: a mild concussion and broken jaw, Jones v. Lewis, 874 F.2d 1125 (6th Cir.1989); a kidney stone, Hutchinson v. United States, 838 F.2d 390 (9th Cir.1988); and a broken finger, Rodriguez v. Joyce, 693 F.Supp. 1250 (D.Me.1988). In light of the plaintiffs own actions and representations, and a comparison to prison medical needs reflected in other cases, it is evident that the plaintiffs complaint fails to state a claim for the violation of his Eighth Amendment rights because the alleged deprivations fail to rise to the level of a “sufficiently serious” medical deprivation. The plaintiff also alleges that he was forced to endure threats from parties, who are not specifically identified in his complaint, in connection with his complaints regarding the cancellation of his June 13 dental appointment. According to plaintiff, he was threatened with disciplinary action, physical violence, an extension of his time in keeplock, and possible segregation, if he continued to seek dental care. The plaintiff does not allege that he suffered any injury or damages from these alleged threats. Such alleged threats do not amount to violations of constitutional rights. Verbal assault, standing alone, is not a “judicially cognizable injurfy] in a § 1983 civil rights action.” Garcia v. Torreggiani, 1985 WL 3957, *2 (S.D.N.Y. Nov. 26,1985) (No. 84 Civ. 9125 (LBS)). See also Wright v. Santoro, 714 F.Supp. 665, 667 (S.D.N.Y.), aff'd, 891 F.2d 278 (2d Cir.1989) (harassment by prison guards, without physical injury, does not amount to a constitutional violation); Zeno v. Cropper, 650 F.Supp. 138, 141 (S.D.N.Y.1986) (in prison context “vile and abusive language ... ‘no matter how abhorrent or reprehensible cannot form the basis for a § 1983 claim’ ”). The plaintiffs claim of alleged threats does not allege a constitutional claim under § 1983. Moreover, the allegations could"
}
]
|
695772 | of physical force against the person of another.” 645 F.3d at 941. Although that decision determined that a conviction under § 5/24-1.2(a)(2) is a crime of violence as defined in § 4B1.2 of the Sentencing Guidelines Manual, rather than in § 2L1.2, both guidelines define a crime of violence as any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” See Curtis at 940 n. 1; compare U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.l(B)(iii) with id. § 4B1.2(a)(l). The full definitions in the two guidelines are not identical — for example, the definition in § 2L1.2 does not include the “residual clause” contained in § 4B1.2(a)(2), see REDACTED definition that underlies our holding in Curtis is repeated in § 2L1.2. Thus, as the district court recognized, we have already decided the issue presented in this appeal. Cf. United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008) (giving same effect to definitions of crime of violence in § 4B1.2 and Armed Career Criminal Act because “[i]t would be inappropriate to treat identical texts differently just because of a different caption.”). In his brief Rivera provides a detailed account of the underlying facts of his Illinois conviction, presumably to persuade us that — although he pleaded guilty — his conduct did not satisfy the statutory elements of aggravated discharge of a firearm. | [
{
"docid": "22924240",
"title": "",
"text": "but may exercise our discretion to do so if the error “ ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Kibler, 279 F.3d 511, 514 (7th Cir.2002) (quoting Olano, 507 U.S. at 732, 113 S.Ct. 1770). We begin with the question of whether the increase was erroneous. The Guidelines state that a defendant should receive a 16-level adjustment if he has a prior conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime of violence” is defined in § 2L1.2 as: [A]ny of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii) (emphasis added). Jaimes has not been convicted of any of the enumerated crimes, so only the latter part of this definition concerns us. Notably, “crime of violence” is defined more narrowly in § 2L1.2 than in other contexts because the definition does not encompass acts involving the use of force against property or acts that merely pose a risk of harm to another person. See United States v. Calderon-Pena, 383 F.3d 254, 261 (5th Cir.2004) (en banc); United States v. Pimentel-Flores, 339 F.3d 959, 965-66 & nn. 7-8 (9th Cir.2003); cf. United States v. Gardner, 397 F.3d 1021, 1022-23 (7th Cir.2005) (U.S.S.G. §§ 2K2.1 and 4B1.2(a)(2) both define crime of violence to include conduct that “presents a serious potential risk of physical injury to another”); Bazan-Reyes v. INS, 256 F.3d 600, 612 (7th Cir.2001) (crime of violence, as defined in 18 U.S.C. § 16(b), applies to “crimes in which the offender is reckless with respect to the risk that intentional physical force will be used in the course of committing the offense”). The government contends that Jaimes’s conviction for “discharging a firearm into a vehicle or building” qualifies as a crime of violence. The elements of"
}
]
| [
{
"docid": "22147467",
"title": "",
"text": "as a public servant[.] Tex. PeN.Code § 22.01(a)-(b). Briefly, Anderson’s argument is that because he could have been convicted under § 22.01(b)(1) for reckless conduct, his conviction could not have been of a COV within the meaning of the guidelines. Anderson relies on cases holding that, in some contexts, the term “crime of violence” excludes crimes that were or could have been committed recklessly. That argument confuses U.S.S.G. § 4B1.2, the applicable definition, with such guidelines provisions as U.S.S.G. § 2L1.2(b), which applies a different definition of COV in the context of unlawfully entering or remaining in the United States. Section 2L1.2 COV’s are those that fall into an enumerated list or that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” See U.S.S.G § 2L1.2 cmt. n.l(B)(iii). Many courts have held that “use” denotes a mens rea of intent or knowledge and so excludes crimes committed recklessly. See Zuniga-Soto, 527 F.3d at 1121-24. Section 4B1.2(a), the definition we apply here, sweeps more broadly. It includes a residual clause that comprehends crimes “involv[ing] conduct that presents a serious potential risk of physical injury to another.” § 4B1.2(a)(2). Unlike U.S.S.G. § 2L1.2, then, § 4B1.2(a)(2) does not necessarily require that intentional or knowing application of force have been an element of the previous felony, so long as there is a “risk.” Cases such as Zuniga-Soto, in which the guideline definition of COV is much narrower, do not apply. There is, naturally, considerable debate about whether particular crimes fall within the U.S.S.G. § 4B1.2(a)(2) definition. To have violated Tex. Pen.Code § 22.01(b)(1), though, Anderson must have actually “cause[d] bodily injury to another” with a mens rea of at least recklessness. Certainly this is a felony presenting more than a “serious potential risk of physical injury to another.” Physical harms committed recklessly fit naturally with the offenses— for example, arson and crimes involving explosives — actually mentioned in § 4B1.2(a)(2). The precise mens rea for violations of § 22.01(b)(1), then, may not matter at all for purposes of § 4B1.2(a); the violation would"
},
{
"docid": "23262193",
"title": "",
"text": "is not reliable. Accordingly, he. argues that because the government did not establish by competent evidence that he pleaded guilty to a particular subsection of the New York statute and because some subsections of the statute do not satisfy the definition of a crime of violence, the district court should not have imposed the enhancement. Indictment Neri contends that the district court erred in looking to the indictment (the charging document) in this case to determine the subsection of the statute under which he was convicted because Neri pleaded guilty to a different offense from that for which he was indicted, citing United States v. Turner, 349 F.3d 833 (5th Cir.2003). In Turner, this Court addressed what role the charging instrument should have upon a sentencing court’s analysis of whether a prior conviction was a crime of violence under U.S.S.G. § 4B1.2 where the defendant was convicted of a lesser included offense. 349 F.3d at 836. The commentary to § 4B1.2 specifically authorizes a sentencing court to consider whether “the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another.” U.S. Sentencing Guideline Manual § 4B1.2, cmt. n. 1. But, because “Turner pleaded guilty to a lesser included offense, and was not rein-dicted on the lesser count,” this Court concluded that the district court could not rely on the conduct set forth in the indictment when making the § 4B1.2 determination. Turner, 349 F.3d at 836. In the instant case, the applicable guideline is § 2L1.2 which does not contain commentary similar to the § 4B1.2 commentary at issue in Turner. Compare U.S. Sentencing Guideline Manual § 4B1.2 with U.S. Sentencing Guideline Manual § 2L1.2. However, the same rule has been applied in cases addressing § 2L1.2. See United States v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir.2007) (because Gonzalez-Ramirez never pleaded guilty to the indictment charging aggravated kidnapping and rather pleaded guilty to attempted kidnapping, that indictment could not be used to determine whether Gonzalez-Ramirez’s conviction was a crime of violence"
},
{
"docid": "14725782",
"title": "",
"text": "whether Johnson is a career offender, the district court considered three of Johnson’s prior felony convictions: aggravated robbery, aggravated discharge of a firearm, and aggravated battery with a firearm. Johnson acknowledges that his aggravated robbery conviction qualifies as a crime of violence. Accordingly, if one of Johnson’s other convictions is also considered a crime of violence, the district court did not err in finding that Johnson is a career offender. Johnson’s aggravated discharge of a firearm conviction occurred in Illinois. Specifically, Johnson was convicted of “knowingly or intentionally ... [discharging] a firearm in the direction of another person or in the direction of a vehicle he or she knows or reasonably should know to be occupied by a person.” 720 ILCS § 5/24-1.2(a)(2). Johnson argues that this conviction is not a crime of violence because it does not satisfy § 4B1.2(a), requiring one of the elements of the offense be “the use, attempted use, or threatened use of physical force against the person of another,” or the offense “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(l)(2). Recently, this court addressed whether an Illinois conviction for aggravated discharge of a firearm constitutes a crime of violence in United States v. Curtis, 645 F.3d 937 (7th Cir.2011). Applying the categorical approach in Curtis, we held that discharging a firearm “is unquestionably the use, attempted use, or threatened use of physical force.” Id. at 940. Further, “[w]hen the firearm’s discharge is in the direction of another person or vehicle the shooter knows or reasonably should know to be occupied ... that use, attempted use, or threatened use of physical force is ‘against the person of another.’ ” Id. (quoting U.S.S.G. § 4B1.2(a)(l)). Thus, the statute was not divisible and satisfied § 4Bl.l(a)(l). Johnson asks the court to revisit Curtis, arguing that we failed to consider that 720 ILCS § 5/24-1.2(a)(2) may be violated by negligence. We have previously held that Sentencing Guideline § 4B1.1 does not apply to crimes with a mens rea of negligence or recklessness. See Woods, 576 F.3d at 408 (quoting"
},
{
"docid": "22712664",
"title": "",
"text": "entries are, by their very nature, broad and tend to encompass all uses of a word or phrase. Dictionary definitions may be a useful starting point for determining what the Commission meant in using specific terms to describe an enumerated offense, but given the potentially significant consequences for a’ criminal defendant, we should not delegate the interpretation of terms used in a sentencing enhancement entirely to lexicographers. Second, the court does not appear to adhere to its own commitment to the supremacy of dictionary definitions. The court adopts an age of consent of eighteen by reference to Black’s definition of “statutory rape” while rejecting that same dictionary’s statement that the “age of consent” to sexual intercourse is “usually” defined by statute at sixteen years. I concur in the judgment. . U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2012). . Id. § 2L1.2(b)(1)(C), (D). . Id. § 2L1.2 cmt. n. l(B)(iii). . U.S. Sentencing Guidelines § 2L1.2 cmt. n. l(B)(ii) (2001). Prior to the 2001 amendments, the term \"crime of violence” was de fined by reference to § 4B1.2, which included \"forcible sex offenses.” U.S. Sentencing Guidelines Manual §§ 2L1.2 cmt. n. 1, 4B1.2 cmt. n. 1 (2000). . U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n. l(B)(ii) (2001). . U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n. l(B)(iii) (2003). . Id. . Id. app. C at 393. . 18 U.S.C. § 924(e). . 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). . The definition of \"crime of violence” is now as follows: (iii) \"Crime of violence” means any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of"
},
{
"docid": "23344401",
"title": "",
"text": "dwelling.” U.S.S.G. § 4B1.2, cmt. n. 1 (emphasis added). U.S.S.G. § 2L1.2, which governs sentence enhancements for an alien’s unlawful reentry into the United States, provides: “[cjrime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as, an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2003) (emphasis added). In Granbois, we held the defendant’s prior conviction for engaging in sexual contact with a minor in violation of 18 U.S.C. § 2244(a)(3) was a “crime of violence” under section 4B1.2. 376 F.3d at 996. We did so by incorporating the “crime of violence” definition of section 2L1.2 into section 4B1.2; since section 2L1.2 classifies “sexual abuse of a minor” as a “crime of violence,” we held engaging in sexual contact with a minor was a “crime of violence” for purposes of section 4B1.2. Id. Granbois observed there was a difference between the “crime of violence” definitions in sections 2L1.2 and 4B1.2, but held it was immaterial: We acknowledge that different words are used in some other definitions of “crime of violence” in the Guidelines and its notes. It would perhaps be clearer if the Commission used a more consistent definition. But there is no indication that the term is intended to mean something different for this provision than it does elsewhere. Id. (quoting United States v. Pereira-Salmeron, 337 F.3d 1148, 1153 (9th Cir.2003)). That language was dicta in Pereira-Salmeron because there we considered the section 2L1.2 \"crime of violence\" definition which contains the \"sexual abuse of a minor\" term. 337 F.3d at 1153. But Granbois considered the section 4B1.2 \"crime of violence\" definition, which does not contain the \"sexual abuse of a minor\" term. 376 F.3d at 996. Granbois relied on Pereira-Salmeron's dicta to incorporate the section 2L1.2 \"crime of violence\" definition into the section 4B1.2 definition. Id. Thus, the language"
},
{
"docid": "23543032",
"title": "",
"text": "commits domestic crime of violence); 8 U.S.C. § 1101(a)(43)(F) (crimes of violence constitute \"aggravated felonies” for immigration purposes); 18 U.S.C. § 3181 (authorizing extradition of persons who have committed crimes of violence); 21 U.S.C. § 841(b)(7) (establishing mandatory maximum sentence for persons who commit a crime of violence by drugging someone unawares); U.S.S.G. § 2L1.2(b)(l)(A)(ii) (enhancing advisory sentencing base offense level by sixteen for aliens who were deported after committing a crime of violence and subsequently entered United States unlawfully); U.S.S.G. § 4A1.1 (f) & cmt. 6 (increasing criminal history for crimes of violence not otherwise counted by the Guidelines); U.S.S.G. § 4B 1.2(a) (classifying the defendant as a career offender based upon having committed crimes of violence); see also Leocal v. Ashcroft, 543 U.S. 1, 6-7 & n. 4, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (collecting uses of phrase as defined in the Comprehensive Crime Control Act of 1984). .For example, compare the statutory definitions under 18 U.S.C. §§ 16 & 924(c)(3) with U.S.S.G. § 4B1.2. Even within the Sentencing Guidelines, there are different meanings of the phrase. Compare U.S.S.G. § 4B1.2 with § 2L1.2 cmt. l(B)(iii). . However, it limits predicate offenses to those that contain as an element the use of force against another \"person” and does not apply to offenses which require use of force against only “property.” Compare 18 U.S.C. § 16(a) with U.S.S.G. § 2L1.2 cmt. l(B)(iii). . This is true because the substantial risk/use of force test is part of the definition of an \"aggravated felony.” See § 2L1.2 cmt. 3(A) (incorporating by reference definition of an “aggravated felony” found in 8 U.S.C. § 1101(A)(43), which in turn incorporates 18 U.S.C. § 16). . The government concedes that a conviction for vehicular manslaughter while intoxicated without gross negligence under California Penal Code section 192(c)(3) does not constitute a \"crime of violence\" within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii). But \"[w]e are not bound by a party’s concession as to the meaning of the law, even if that party is the government and even in the context of a criminal case.” United States"
},
{
"docid": "16562188",
"title": "",
"text": "present during the commission of the crime can, nonetheless, commit a \"burglary” under the ACCA. . A \"felony drug offense” was defined in the statute at issue as \"a felony under any law of a state or foreign country that prohibits or restricts conduct relating to narcotic drugs, marijuana, or depressant or stimulant substances.” Pazzanese, 982 F.2d at 253 (citing 21 U.S.C. § 841(b)(1)(A) (repealed 1994)). . Instead, the mens rea element for the criminal facilitation statute in Pazzanese required a guilty party to \"believ[e] it probable that he is rendering aid to a person who intends to commit [a felony.]” Pazzanese, 982 F.2d at 254 (citing n.Y. Penal Law § 115.05). . Specifically, a “crime of violence” is defined by 18 U.S.C. § 16 as (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The term “crime of violence” is used in numerous sections of the United States Code and the Sentencing Guidelines. In some places, the definition from § 16 is used. See, e.g., 18 Ú.S.C. § 924(c)(3). In others, the language is almost identical to the definition of \"violent felony” from the ACCA. See, e.g., Sentencing Guidelines Manual § 4B 1.2(a) (2004). Other sections have yet another definition. See, e.g., Sentencing Guidelines Manual § 2L1.2 Cmt., Application Note l(B)(iii) (2004). .The difference is that, in the definition of \"crinie of violence,” the use of force can be against another’s property; on the other hand, in the ACCA, property is not mentioned. Compare 18 U.S.C. § 16(a) with id. § 924(e)(l)(B)(i). . In United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), the Seventh Circuit provided an additional reason for this conclusion. Examining the term \"crime of violence\" in § 4B1.2 of the United States Sentencing Guidelines (which is almost identical to the ACCA),"
},
{
"docid": "23344400",
"title": "",
"text": "and II.C. I write separately, however, because although United States v. Granbois, 376 F.3d 993 (9th Cir.2004), controls here, I see it as wrongly decided, notwithstanding Judge Gould’s faithful attempts to bolster its reasoning. The primary issue in this appeal is whether Asberry’s prior conviction for statutory rape is a “crime of violence” as defined by U.S. Sentencing Guidelines (“U.S.S.G.”) § 4B1.2, which governs As-berry’s sentence enhancement. Section 4B1.2(a) provides: [t]he term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, in volves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. The commentary to section 4B1.2 further explains a “crime of violence” includes “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G. § 4B1.2, cmt. n. 1 (emphasis added). U.S.S.G. § 2L1.2, which governs sentence enhancements for an alien’s unlawful reentry into the United States, provides: “[cjrime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as, an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2003) (emphasis added). In Granbois, we held the defendant’s prior conviction for engaging in sexual contact with a minor in violation of 18 U.S.C. § 2244(a)(3) was a “crime of violence” under section 4B1.2. 376 F.3d at 996. We did so by incorporating the “crime of violence” definition of section 2L1.2 into section 4B1.2; since section 2L1.2 classifies “sexual abuse of a minor” as a “crime of violence,” we held engaging in sexual contact with a minor was a “crime"
},
{
"docid": "21391381",
"title": "",
"text": "ques tion, and we are bound to find that North Carolina’s second-degree rape statute is not categorically a crime of violence under § 4B1.2(a)(2)’s residual clause. D. . We turn now to the government’s argument on appeal. The government does not contest, at least directly, our holding that a North Carolina second-degree rape conviction does not qualify categorically as a crime of violence under either clause of § 4B1.2’s definition. Instead, the government rests its argument entirely on the commentary to § 4B1.2, which lists “forcible sex offense[]” as an example of a crime of violence. U.S.S.G. § 4B1.2 cmt. n. 1. More specifically, the government contends that because sex offenses resting on legally insufficient consent constitute “forcible sex offenses” under a different section of the Guidelines — Guidelines § 2L1.2 — they must be crimes of violence under the commentary to § 4B1.2, as well. Two other circuit courts have rejected precisely that argument, see Wynn, 579 F.3d at 574-75 (Sixth Circuit); Wray, 776 F.3d at 1187-88 (Tenth Circuit); see also Leshen, 453 Fed.Appx. at 415-16 (Fourth Circuit, unpublished), and we join them now. Section 2L1.2 of the Guidelines enhances the base offense level for certain immigration violations where the defendant has committed a prior felony “crime of violence” or misdemeanor “crimes of violence.” U.S.S.G. § 2L1.2(b)(l)(A), (E). The text of § 2L1.2 does not define crime of violence and, unlike the provision under which Shell was sentenced, it does not incorporate by reference § 4B1.2’s two-clause definition of crime of violence. Instead, § 2L1.2 includes commentary listing “forcible sex offense[ ]” as an example of a crime of violence. Id. at cmt. n. l(B)(iii). In United States v. Chacon, we applied § 2L1.2 to a subsection of a Maryland statute much like the second subsection of North Carolina’s statute, criminalizing intercourse with a person who is mentally defective, mentally incapacitated, or physically helpless. 533 F.3d 250, 255 (4th Cir.2008). At the time, § 2L1.2’s commentary provided: “Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex"
},
{
"docid": "15340757",
"title": "",
"text": "use of physical force against the occupant. See id. These cases—Alfaro, Ford, and Curtis—are instructive. They all support the conclusion that directing physical force against an occupied vehicle, without more, does not permit application of the USSG § 2L1.2 crime of violence enhancement. We are persuaded by the logic underlying these cases. Where an element would permit conviction whenever the defendant targets property that happens to be occupied, that element is “akin to criminal damage to property,” Curtis, 645 F.3d at 942, and covers conduct broader than the crimes against persons to which the USSG § 2L1.2 crime of violence enhancement is supposed to apply. Our review of the Sentencing Commission’s varying definitions for a crime of violence throughout the Sentencing Guidelines makes it clear that the USSG § 2L1.2 crime of violence enhancement should not be interpreted in a way that risks application of the enhancement to true property offenses. In USSG § 2L1.2, the Commission decided to treat as crimes of violence only those statutes that have as an element the use, attempted use, or threatened use of physical force against a person. USSG § 2L1.2, comment. (n.1(B)(iii)). By contrast, where sentence enhancements are intended to apply for both crimes against person and crimes against property, the relevant sentencing provision explicitly says so. See 18 U.S.C. § 924(c)(3)(A) (defining a crime of violence for Armed Career Criminal Act purposes as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (emphasis added)). When language is included in one statutory provision but not included in another related provision, that omission has an important meaning that we cannot ignore. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 763 (11th Cir.2010). Here, where the Commission omitted crimes against property from USSG § 2L1.2’s crime of violence definition, we understand that only those prior convictions that are necessarily and in all circumstances crimes against persons are supposed to trigger the enhancement. Statutes that would permit conviction when the defendant targets only property do not meet"
},
{
"docid": "23543012",
"title": "",
"text": "Under U.S.S.G. § 2L1.2(b)(1), a crime of violence § 2L1.2 cmt. l(B)(iii) (paragraph spacing added for convenience). The second phrase of the § 2L1.2(b) definition is materially the same as the element test from 18 U.S.C. § 16(a) and is subject to the same construction, which means that it covers only convictions for an offense that requires proof of the intentional use of force. See United States v. Narvaez-Gomez, 489 F.3d 970, 976-77 (9th Cir.2007) (applying Femandez-Ruiz to the element test in § 2L1.2). The first phrase of the definition describes our third approach by listing several enumerated offenses that constitute “crimes of violence” per se. We refer to this approach as the enumerated offenses approach. means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. Notably absent from the § 2L1.2(b) definition is the substantial risk/use of force test. Its absence is explainable by considering the history of the § 2L1.2 Guidelines provision. Prior to the 2001 amendments to the Guidelines, § 2L1.2(b) defined a “crime of violence” by reference to the definition contained in § 4B1.2, the career offender provision of the Guidelines. See U.S.S.G.App. C Yol. II, amend. 632 (2003). The career offender definition for a “crime of violence” contains the element test and our fourth approach, which we will call the serious risk of injury test. § 4B1.2. Under the serious risk of injury test, an offense is a “crime of violence” if it is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. U.S.S.G. § 4B1.2(a)(2) (2000). This approach appears to have originated in the Armed Career Criminal Act’s definition of the term “violent felony.” 18 U.S.C. § 924(e)(2)(B)(ii). In applying the serious risk of injury test in"
},
{
"docid": "23344384",
"title": "",
"text": "se “crime of violence” under the Sentencing Guidelines. 376 F.3d at 996. Although Guidelines section 4B1.2 does not explicitly list “sexual abuse of a minor” or “statutory rape” as a per se “crime of violence,” the commentary to Guidelines section 2L1.2 mentions that these offenses meet the definition of “crime of violence” under section 2L1.2. In Granbois, we held in the context of interpreting “sexual abuse of a minor” that “there is no indication that [‘crime of violence’] is intended to mean something different” in section 4B1.2 than it does in section 2L1.2. 376 F.3d at 996 (quoting United States v. Pereira-Salmeron, 337 F.3d 1148, 1153 (9th Cir.2003)); see also United States v. Melton, 344 F.3d 1021, 1027 (9th Cir.2003). The evolution of the language of . Guidelines section 2L1.2 supports this conclusion. Prior to 2001, sentencing under section 2L1.2 also used the definition of “crime of violence” in section 4B1.2, which included “forcible sex offenses” among the per se “crimes of violence” enumerated in the commentary. U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1 (2000). In 2001, the Sentencing Commission completed a comprehensive revision of section 2L1.2 and, among other changes, added a full definition of “crime of violence” with the parenthetical “(including sexual abuse of a child)” appearing after the term “forcible sex offenses” in the commentary. U.S. Sentencing Guidelines Manual app. C, amend. 632, 216-19 (2003); U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 1(B)(ii)(II) (2002). In 2003, the Sentencing Commission again amended the commentary to section 2L1.2 to list specifically “forcible sex offenses, statutory rape,[and] sexual abuse of a minor.” The Commission stated that the 2003 amendment “clarifies the meaning of the term ‘crime of violence’ .... [because] [t]he previous definition often led to confusion over whether the specified offenses listed in that definition, particularly sexual abuse of a minor ... also had to include as an element of the offense ‘the use, attempted use, or threatened use of physical force against the person of another.’ ” U.S. Sentencing Guidelines Manual app. C, amend. 658, Reason for Amendment, 397-402 (2003) (emphasis added). Therefore, the Commission"
},
{
"docid": "14725322",
"title": "",
"text": "admitted to committing when he pleaded guilty, Rede-Mendez’s prior conviction does not trigger the crime of violence enhancement under U.S.S.G. § 2L1.2. Therefore, we VACATE the district court’s judgment and REMAND for resentencing consistent with this opinion. . 8 U.S.C. § 1326(a) describes the crime of unlawful reentry of removed aliens and sets a maximum term of imprisonment of two years. Section 1326(b)(2) sets a higher maximum term of imprisonment of twenty years for aliens whose removal followed conviction for an \"aggravated felony.” . Guideline § 4B1.2 (the career offender guideline), 18 U.S.C. § 16, and the Armed Career Criminal Act, 18 U.S.C. § 924(e), all employ the \"use, attempted use, or threatened use of physical force” definition of crime of violence or violent felony, but also contain residual clauses, which include crimes that carry a \"substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” 18 U.S.C. § 16, or a \"serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B); U.S.S.G. § 4B1.2. To the extent that cases interpreting these other provisions analyze the \"element” prong, they are probative to an interpretation of U.S.S.G. § 2L1.2. See United States v. Vanhook, 640 F.3d 706, 712 n. 4 (6th Cir.2011) (\"Given the similarity between the ACCA’s definition of 'violent felony’ and the definition of ‘crime of violence’ contained in the pertinent guideline provision, courts, including this one, have taken the position that authority interpreting one phrase is generally persuasive when intetpreting the other.”). Cases analyzing the residual clauses, by contrast, are not pertinent. Relatedly, the fact that Rede-Mendez apparently does not challenge the application of the statutory sentence enhancement of 8 U.S.C. § 1326(b)(2), which extends the potential sentence for unlawful reentry for defendants whose removal followed a conviction for an \"aggravated felony,” is not necessarily relevant. Although \"aggravated felony” is defined, in relevant part, by reference to the definition of \"crime of violence” in 18 U.S.C. § 16, see 8 U.S.C. § 1101(a)(43)(F), that section contains the broader residual clause not found in §"
},
{
"docid": "23344404",
"title": "",
"text": "a “crime of violence” under section 4B1.2). Notwithstanding Granbois's binding effect here, it was wrongly decided for two reasons. First, in holding there is no difference between the \"crime of violence\" definitions in sections 4B1.2 and 2L1.2, Granbois ignores the inclusion of the \"statutory rape\" and \"sexual abuse of a minor\" terms in section 2L1.2, and the exclusion of those terms in section 4B1.2. Given such clear differences in text, to say the two sections mean the same is an approach contrary to basic principles of statutory construction. See Sosa v. Alvarez-Machain, - U.S. -, -, 124 S.Ct. 2739, 2754, 159 L.Ed.2d 718 (2004) (\"when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.\"). The intent of the U.S. Sentencing Guidelines Commission (\"Commission\") in establishing sentencing criteria for unlawful reentry into the United States is likely different than for sentencing criteria for being a felon in possession of a firearm. See U.S. Sentencing Guidelines Manual app. C, vol. II at 401-02 (stating Amendment 658 changed the \"crime of violence\" definition for section 2L1.2 by adding \"statutory rape\" and \"sexual abuse of a minor\" so that \"[t]he amended definition makes clear that the enumerated offenses are always classified as `crimes of violence,' regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another.\"). Indeed, our sister circuits have noted the Guidelines have different \"crime of violence\" definitions and have called on the Commission for clarification. See United States v. Shannon, 110 F.3d 382, 389 (7th Cir.1997) (en banc); United States v. Rutherford, 54 F.3d 370, 377 (7th Cir.1995); cf. See United States v. Charles, 301 F.3d 309, 312 (5th Cir.2002) (en banc) (overruling prior cases which conflated the section 4B1.2(a)(2) \"crime of violence\" definition (i.e., \"conduct that presents a serious potential risk of physical injury to another\") with the \"crime of violence\" definition from 18 U.S.C. § 16 (i.e., a crime that presents \"a substantial risk that physical force against the person"
},
{
"docid": "5195212",
"title": "",
"text": "attempted use, or threatened use of physical force against the person of another,” id.). See United States v. Torres-Miguel, 701 F.3d 165, 167-68, 170 (4th Cir.2012). Nevertheless, Taylor still proves instructive, and this court has thus employed the categorical approach in various force and residual clause contexts. See, e.g., id. at 167-68 (applying Taylor to force clause at issue here); United States v. Seay, 553 F.3d 732, 736-37 (4th Cir.2009) (applying Taylor to force and residual clauses in U.S.S.G. § 4B1.2(a)). At bottom, Taylor established the principle that enhancement predicates “must have some uniform definition independent of the labels employed by the various States’ criminal codes.” 495 U.S. at 592, 110 S.Ct. 2143. We respect that principle by first determining what the force clause of the crime-of-violence enhancement means as a general matter, apart from how any individual jurisdiction defines any given offense or enhancement, and then asking whether the elements of the conviction at issue align with that uniform definition. See Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 1269, 176 L.Ed.2d 1 (2010) (“The meaning of ‘physical force’ in [18 U.S.C.] § 924(e)(2)(B)(i) is a question of federal law, not state law. And in answering that question we are not bound by a state court’s interpretation of a similar— or even identical — state statute.”). Because the two provisions employ identical language, the parties agree that precedent interpreting the force clause in the definition of the “violent felony” portion of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)®, is pertinent to our analysis of the force clause in the crime-of-violence enhancement. Compare id. (encompassing any offense that, inter alia, “has as an element the use, attempted use, or threatened use of physical force against the person of another”), with U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (same). Indeed, this court has recently reiterated that “[w]e rely on precedents evaluating whether an offense constitutes a ‘crime of violence’ under the Guidelines interchangeably with precedents evaluating whether an offense constitutes a ‘violent felony’ under the ACCA, because the two terms have been defined in a manner that"
},
{
"docid": "21504270",
"title": "",
"text": "a “substantial risk” that physical force may be used “against the person or property of another.” See id. at 574. This definition is broader than the definition contained in § 4B1.2 alone, which identified only those crimes presenting a substantial risk of physical injury to another. Injury to property, significantly, was not mentioned. McDougherty is relevant but not controlling in this case. First, § 2L1.2 contains no reference to 18 U.S.C. § 16(b), as § 4B1.2 did. Second, as we have recently emphasized, § 4B1.2 has “materially different” wording from § 2L1.2. United States v. Beltran-Munguia, 489 F.3d 1042, 1049 (9th Cir.2007). While § 4B1.2 contains a catch-all for crimes presenting a “serious potential risk of physical injury,” § 2L1.2 covers only those crimes that in volve “the use, attempted use, or threatened use of physical force against the person of another.” As we held in Beltran-Munguia, a state crime that satisfies the “crime of violence” definition in § 4B1.2 does not automatically satisfy the definition in § 2L1.2. Id. Therefore, we approach the issue as a question of first impression. 2. The Taylor Analysis As defined in the commentary to U.S.S.G. § 2L1.2, “crime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. To determine whether a conviction under CahPenal Code § 211 meets this definition, we use the Taylor categorical approach. We “look only to the fact of conviction and the statutory definition of the prior offense, not to the underlying facts,” to determine whether the prior conviction is a qualifying offense. United, States v. Lopez-Montanez, 421 F.3d 926, 929 (9th Cir.2005) (internal quotation marks and citation omitted). To demonstrate that § 211 is not per se an offense within the Guideline, Becerril must show that there is “a realistic probability, not a theoretical possibility,"
},
{
"docid": "23608538",
"title": "",
"text": "has any criminal history points and if he was previously “deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” In pertinent part, a “crime of violence” under this guideline means any “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (the “elements clause”). To determine whether a prior conviction is a qualifying offense for sentencing enhancement purposes, we typically apply a categorical approach. Palomino Garcia, 606 F.3d at 1328. That is, we look only at the fact of conviction and the statutory definition of the prior offense. Id. at 1336. The elements clause at issue here is the same as the elements clauses of the Armed Career Criminal Act of 1984 (“ACCA”) and the career-offender guidelines. Specifically, the ACCA provides a 15-year mandatory minimum sentence for any convicted felon who possesses a firearm or ammunition after having been convicted of three violent felonies or serious drug offenses, 18 U.S.C. § 924(e)(1), and defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another,” id. § 924(e)(2)(B)(i). Similarly, the career-offender guidelines provide for an enhanced sentence for any convicted felon with three convictions for crimes of violence or controlled substance offenses, U.S.S.G. § 4B1.1(a)-(b), and define “crime of violence” as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S.S.G. § 4B1.2(a)(1). Consequently, cases dealing with the elements clauses of the ACCA and the career offender guidelines are instructive in this case. Cf. United States v. Lockley, 632 F.3d 1238, 1241 (11th Cir.2011). In Johnson v. United States, — U.S. -, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Supreme Court"
},
{
"docid": "22765693",
"title": "",
"text": "245(a)(1) conviction was for a “crime of violence.” We therefore AFFIRM the sentence. We REMAND only for the district court to correct the judgment of conviction by removing the reference to 8 U.S.C. § 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000); United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000). AFFIRMED and REMANDED. . The district court applied the 2006 edition of the United States Sentencing Guidelines Manual in calculating Grajeda’s sentencing guideline range, and all references are to that edition. The 2006 and 2008 versions of § 2L1.2(b)(l)(A)(ii) are identical, and instruct the court to increase a defendant’s base offense level by sixteen levels ”[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). . The definition provides in full: \"Crime of violence” means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2006). The 2008 definition differs slightly in its description of the enumerated offenses; the only difference in the \"element” prong is the insertion of the word \"other” between “any” and \"offense.” U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2008). . The Comprehensive Crime Control Act of 1984 includes a statutory definition for \"crime of violence,” codified at 18 U.S.C. § 16, which is applicable to statutes using the phrase. See Gomez-Leon, 545 F.3d at 787. This statutory definition partially overlaps with the Sentencing Guidelines definition provided in U.S.S.G. § 2L1.2, cmt. n. l(B)(iii). See id. at 787-88. . Like the element prong in § 2L1.2, the crime of violence definition in § 16(a) includes any \"offense that has as an element the use, attempted use, or threatened use of physical force.” 18 U.S.C. § 16(a);"
},
{
"docid": "23344385",
"title": "",
"text": "1 (2000). In 2001, the Sentencing Commission completed a comprehensive revision of section 2L1.2 and, among other changes, added a full definition of “crime of violence” with the parenthetical “(including sexual abuse of a child)” appearing after the term “forcible sex offenses” in the commentary. U.S. Sentencing Guidelines Manual app. C, amend. 632, 216-19 (2003); U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 1(B)(ii)(II) (2002). In 2003, the Sentencing Commission again amended the commentary to section 2L1.2 to list specifically “forcible sex offenses, statutory rape,[and] sexual abuse of a minor.” The Commission stated that the 2003 amendment “clarifies the meaning of the term ‘crime of violence’ .... [because] [t]he previous definition often led to confusion over whether the specified offenses listed in that definition, particularly sexual abuse of a minor ... also had to include as an element of the offense ‘the use, attempted use, or threatened use of physical force against the person of another.’ ” U.S. Sentencing Guidelines Manual app. C, amend. 658, Reason for Amendment, 397-402 (2003) (emphasis added). Therefore, the Commission has indicated that these amendments to section 2L1.2 merely clarified the meaning of the term \"crime of violence\" and provided elaboration regarding the offenses that are included within this category; the amendments did not change the definition of \"crime of violence\" that section 2L1.2 originally borrowed from section 4B1.2. These indications of the Commission's intent control interpretations of section 2L1.2, United States v. Garcia-Cruz, 40 F.3d 986, 990 (9th Cir.1994), and provide guidance to us in our efforts to construe the identical term \"crime of violence\" in section 4B1.2. See United States v. Moreno-Cisneros, 319 F.3d 456, 458-59 (9th Cir.2003) (holding that an amendment to one section of the Guidelines may clarify similar language in an analogous provision of the Guidelines); see also Williams v. United States, 503 U.S. 193, 200-01, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (describing how a court reaches a correct interpretation of the Guidelines). C Even if statutory rape were not a per se “crime of violence,” it would fall within the terms of Guidelines section 4B1.2 because that section"
},
{
"docid": "21391382",
"title": "",
"text": "at 415-16 (Fourth Circuit, unpublished), and we join them now. Section 2L1.2 of the Guidelines enhances the base offense level for certain immigration violations where the defendant has committed a prior felony “crime of violence” or misdemeanor “crimes of violence.” U.S.S.G. § 2L1.2(b)(l)(A), (E). The text of § 2L1.2 does not define crime of violence and, unlike the provision under which Shell was sentenced, it does not incorporate by reference § 4B1.2’s two-clause definition of crime of violence. Instead, § 2L1.2 includes commentary listing “forcible sex offense[ ]” as an example of a crime of violence. Id. at cmt. n. l(B)(iii). In United States v. Chacon, we applied § 2L1.2 to a subsection of a Maryland statute much like the second subsection of North Carolina’s statute, criminalizing intercourse with a person who is mentally defective, mentally incapacitated, or physically helpless. 533 F.3d 250, 255 (4th Cir.2008). At the time, § 2L1.2’s commentary provided: “Crime of violence” means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (2006) (emphases added). We held, first, that the Maryland offense did not have “as an element the use, attempted use, or threatened use of physical force,” and so did not fall within § 2L1.2’s “force clause.” Cha-con, 533 F.3d at 255-56. We went on to find, however, that it nevertheless qualified as a “forcible sex offense[ ]” within the meaning of § 2L1.2. Id. at 256-58. In the absence of a textual definition, we relied on the “ordinary, contemporary” meaning of “forcible” and concluded that it reaches not only physical force but also compulsion effectuated through “power” or “pressure,” id. at 257, as when a rape is “accomplished by taking advantage” of someone who cannot give legal consent, id. at 258."
}
]
|
752470 | a phrase used in the section relating to original jurisdiction. What is the matter in controversy that the provision has in mind? What is the controversy as to which it relates ? I take it that it is a controversy about relief sought by the suit in which it exists, and, more particularly, as to whether the plaintiff, who seeks it, is entitled thereto. In the case of Schunk v. Moline M. & S. Co., 147. U. S. 500, 13 Sup. Ct. 416, 37 L. Ed. 255, the Supreme Court, through Mr. Justice Brewer said: “The claim of the plaintiff was to recover $2,194.13 and interest. The right to recover this, or any part thereof, was challenged by the demurrer. In REDACTED Hilton v. Dick inson, 108 U. S. 165. Within the letter of the statute there was, therefore, a controversy between citizens of different states, in which the matter in dispute was over the sum or value of $2,000.” The other arises from the fact that the petition for removal is required to be filed before there has been any controversy, so far as the suit is concerned, and the right thereto is based solely on plaintiff’s pleading, by which the suit was | [
{
"docid": "22335576",
"title": "",
"text": "protect litigants against influences of that, character. It therefore provided, by the act of March 2,1867 (14 Stat. 558), greater facilities for the removal of cases involving controversies between citizens of different States from a State court to a Federal court, when it appeared that such influences existed. That act declared, that where a suit was then pending, or should afterwards be brought in any State court, in which there was a controversy between a citizen of the State in which the suit was brought and a citizen of another State, and the matter in dispute exceeded the sum of $500, exclusive of costs, such citizen of another State, whether plaintiff or defendant, upon making and filing in the State court an affidavit that he had reason to believe, and did believe, that from prejudice or local influence he would not be able to obtain justice in the State court, might, at any time before final hearing or trial of the suit, obtain a removal of the case into the Circuit Court of the United States, upon petition for that purpose, and the production of sufficient security for subsequent proceedings in the Federal court. This act covered every possible case involving controversies between citizens of the State where the suit was brought and citizens of other States, if the matter in dispute, exclusive of costs, exceeded the sum of $500. It mattered not whether the suit was brought in a State court of limited or general jurisdiction. The only test was, did it involve a controversy between citizens of the State and citizens of other States ? and did the matter in dispute exceed a specified amount ? And a controversy was involved in the sense of the statute whenever any property or claim of the parties, capable of pecuniary estimation, was the subject of the litigation, and was presented by the pleadings for judicial determination. With these provisions in force, we are clearly of opinion that the State court of Louisiana erred in refusing to transfer the case to the Circuit Court of the United States upon the application"
}
]
| [
{
"docid": "14686762",
"title": "",
"text": "183, 21 Sup. Ct. 555, 45 L. Ed. 810, and Laing v. Rigney, 160 U. S. 531, 16 Sup. Ct. 366, 40 L. Ed. 525, is to establish the fact that alimony is a cause of action cognizable in a federal court, and that so much of the decree of another state, in a cause of this class, as has been reduced to final judgment, shall receive full faith and credit in the courts of the United States as conclusive evidence of the matters adjudged; but all future payments of alimony must be proven as any other ordinary demand or claim, and reduced to judgment, before recovery upon them-can be had; and, if the claim should amount to more than $2,000, as in this case, it can be made the basis of a suit in a Circuit Court, with a right to the defendant to set up any defense he may have. It is a controversy between citizens of different states of a civil nature. “A controversy is involved, in the sense of the statute, whenever any property or claim of the parties capable of pecuniary estimation is the subject of litigation, and is presented by the pleadings for judicial determination. * * * It matters not that by a showing in the statement the defendant would have a good defense to the cause of action. It does not diminish the amount the plaintiff claims, npr determine what is the matter in dispute; for who can say in advance that the defense will be presented by the defendant, or, if presented, sustained by the court? Suppose an action were brought on a negotiable note for $2,500, the consideration for which was fully set forth in the statement, and which was a sale of a lottery ticket, or any other matter distinctly prohibited by statute, can there be any doubt that the Circuit Court would have jurisdiction? There would be presented a claim to recover the $2,500; and, whether that claim was sustainable or not, that would be the real sum in dispute.” Schunk v. Moline, etc., Co., 147 U. S."
},
{
"docid": "13888873",
"title": "",
"text": "of the court. But upon such a conviction, however strong, be would not he at liberty to act, unless the facts on which the persuasion is based, when made to distinctly appear on the record, create a legal certainty of the conclusion based on them. Nothing less than this is meant by the statute when it provides that the failure of its jurisdiction on this account ‘shall appear to the satisfaction of the circuit court.’ ” The cases involving a colorable enlargement of tbe amount claimed as in dispute for the purpose of bringing the matter within, the appellate jurisdiction of the supreme court are in point upon this question. Lee v. Watson, 1 Wall. 337; Hilton v. Dickinson, 108 U. S. 165-174, 2 Sup. Ct. 424; Bowman v. Railway Co., 115 U. S. 611, 6 Sup. Ct. 192. lu Hilton v. Dickinson, just cited, the court said: “It is undoubtedly true that until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction; hut it is equally true that, where it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail.” Neither is it admissible to determine the question of the existence of a dispute involving the necessary jurisdictional amount by an inquiry in the nature of a demurrer to the case stated in tlie pleadings. That a good defense appears from the facts stated to the whole or to a part of the demand does not: affect the jurisdiction of the court, unless, of course, the nature of the claim stated is so manifestly fictitious as to make it legally certain that the amount of the demand is alleged simply to create a jurisdictional sum for the purpose of creating a case within the jurisdiction. The ease of Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 504, 13 Sup. Ct. 416, was a suit to recover §2,194.13, of which §530.09 was due, and the rest,"
},
{
"docid": "7585000",
"title": "",
"text": "mortgages which complainant seeks to have annulled ought to be regarded as the amount actually at stake, as it clearly is so far as the defendants are concerned, who removed the action to the federal court. I am of opinion that it should be so regarded if there was no other prayer for relief contained in the bill than the cancellation of the mortgages.” He then points out that the plaintiff asks, in the alternative, that the mortgages be canceled, or that he receive $1,509.79, which he apparently fixed as the maximum value of his interest in the property. In the case of New Jersey Zinc Co. v.Trotter, 108 U. S. 564, 2 S. Ct. 875, 27 L. Ed. 828, it appears that Trotter brought an action against the New Jersey Zinc Company for entering on his lands and digging up and carrying away a quantity of ore. . The defendant -entered a denial, and no other issue was raised by the pleadings. Trotter recovered a judgment for less than $5,000. The Zinc Company appealed, and Trotter moved to dismiss because the matter in dispute did not exceed $5,000. It had been determined in Hilton v. Dickinson, 108 U. S. 165, 2 S. Ct. 424, 27 L. Ed. 688, that the jurisdiction of the Supreme Court was limited to suits in which the matters in dispute exceeded $5,000. Chief Justice Waite said: “It may be that the question actually litigated below related to the title of the parties to the land from which the ore in controversy was taken, and that the verdict will be conclusive on that question as an estoppel in some other case; but, as was also said at the present term, in Elgin v. Marshall, 106 U. S. 578 [1 S. Ct. 484, 27 L. Ed. 249], for the purpose of estimating the value on which our jurisdiction depends, reference can only be had to the matter actually in dispute in the particular cause in which the judgment to be reviewed was rendered, and we are not per mitted to consider the collateral effect of the"
},
{
"docid": "7089990",
"title": "",
"text": "plaintiff declares it to be in his pleadings. * * * On the one side of the controversy upon that cause, of action is the plaintiff, and on the other all the defendants. The separate defenses of the defendants relate only to their respective interests in the one controversy. The controversy is the case, and the case is not divisible.” In Crump v. Thurber, 115 U. S. 60, 5 Sup. Ct. 1154, 29 L. Ed. 328, Mr. Justice Blatchford, for the Supreme Court, said: “The jurisdiction of the Circuit Court must be determined, for the purpose of this case, by the status of the parties and the nature of the relief which had been asked by the plaintiff at the time of the application for removal.” Blake v. McKim, 103 U. S. 336, 26 L. Ed. 563; Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823; Ayres v. Wiswall, 112 U. S. 187, 5 Sup. Ct. 90, 28 L. Ed. 693; Brown v. Trousdale, 138 U. S. 389, 11 Sup. Ct. 308, 34 L. Ed. 987; Wilson v. Oswego Township, 151 U. S. 67, 14 Sup. Ct. 259, 38 L. Ed. 70. These cases decide that the issue brought before the court in cases of alleged separable controversy is not whether the party asking for the removal may have a separate decree and a separate execution, but what the whole case shows the controversy to be. Each case of a defendant petitioning for removal of a cause presents the question whether the whole subject-matter of the suit can be determined between the plaintiff and the petitioning defendant without the presence of the other parties. The policy of courts — especially of equity courts — is not to divide the subject-matter of a great controversy into a multitude of small controversies, and the statute of removal does not call for such division. Mr. Justice Story states with perfect clearness the theory of equity courts upon the subject of parties: “It is the great object of courts of equity to put an end to litigation, and to settle, if possible,"
},
{
"docid": "22577102",
"title": "",
"text": "would be sufficient, under-the provisions of the United States Revised Statutes to confer jurisdiction upon the United States Circuit Court, for the Southern District of New York of this cause, and whether this cause, as brought in the Supreme .Court- of the State of New York, was one over which this court would have had original jurisdiction, and was therefore removable into this court.” We consider nothing but the question of jurisdiction, and express no opinion upon the decision upon the demurrer-which is not properly here. Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500; Smith v. McKay, 161 U. S. 355; Mexican Central Railway Co. v. Eckman, 187 U. S. 429; Hennessy v. Richardson Drug Co., 189 U. S. 25; Chicago v. Mills, 204 U. S. 321. The cause was removable to the Circuit Court by the defendants if it was one of which that court was given jurisdiction. 25 Stat. 434; Mexican National Railroad Company v. Davidson, 157 U. S. 201; Traction Company v. Mining Company, 196 U. S. 239. The only ground of original jurisdiction or of removal was that the suit was a controversy between citizens of different States. In that case Congress has given the Circuit Court jurisdiction over it, with certain limitations not material •here. 25 Stat. 434. The plaintiff contends that the Circuit Court was without jurisdiction of the cause/and should therefore haye remanded it to the state court, for two reasons. First, because .upon a proper aligñment of the parties there was. not a controversy between ..citizens of different States. Second, because the cause of action as disclosed by the pleadings showed that the Circuit Court had no. jurisdiction over the subject matter. These reasons are entirely independent of each other and require separate consideration. First, Was there a controversy between citizens of different States? As the parties were arranged by the plaintiff himself on the face of the record, there was a diversity of citizenship. The plaintiff was a citizen of New York and the two defendants were, citizens of Minnesota. But the plaintiff insists that by looking through"
},
{
"docid": "14686763",
"title": "",
"text": "whenever any property or claim of the parties capable of pecuniary estimation is the subject of litigation, and is presented by the pleadings for judicial determination. * * * It matters not that by a showing in the statement the defendant would have a good defense to the cause of action. It does not diminish the amount the plaintiff claims, npr determine what is the matter in dispute; for who can say in advance that the defense will be presented by the defendant, or, if presented, sustained by the court? Suppose an action were brought on a negotiable note for $2,500, the consideration for which was fully set forth in the statement, and which was a sale of a lottery ticket, or any other matter distinctly prohibited by statute, can there be any doubt that the Circuit Court would have jurisdiction? There would be presented a claim to recover the $2,500; and, whether that claim was sustainable or not, that would be the real sum in dispute.” Schunk v. Moline, etc., Co., 147 U. S. 500, 13 Sup. Ct. 416, 37 L. Ed. 255. The case of Barber v. Barber, 21 How. 582, 16 L. Ed. 226, sustains this view, and has never been overruled. It is there stated: “Such a judgment or decree for alimony, rendered in any state of the United States, the court having jurisdiction, will be carried into judgment in any other state, to have there the same binding force that it has in the state in which it was originally given.” If, however, this be restricted, by subsequent decisions, to such part of the decree as has been reduced to final judgment, it nowhere appears that suit cannot be brought for the alimony to be paid in the future, and reduced to judgment. This, however, can be fully considered upon the trial of the cause. It is only determined now that the court has jurisdiction. The demurrer is overruled."
},
{
"docid": "23267178",
"title": "",
"text": "than $2,000; and (3) That the plaintiff in his petition had fraudulently stated the value of his land, the extent of his damages and the joint character of defendant’s action in entering and taking possession of his land, and had done this for the purpose of conferring jurisdiction upon the court. If. the last finding of fact was warranted by the evidence there is no néed of going further, because such a state of facts would demand a dismissal of the action. Ordinarily the plaintiff’s .claim with-'respect to the value of'the property taken from him or the amount of damages‘incurred by him through the defendants’ wrongful act measures for jurisdictional purposes the value of the matter in controversy, Smith v. Greenhow, 109 U. S. 669; Barry v. Edmunds, 116 U. S. 550; Scott v. Donald, 165 U. S. 58; Wiley v. Sinkler, 179 U. S. 58; unless, upon inspection of the plaintiff’s declaration, it appears that, as a matter of law, it is not possible for the plaintiff to recover the jurisdictional amount. Lee v. Watson, 1 Wall. 337; Schacker v. Hartford Fire Ins. Co., 93 U. S. 241; Vance v. Vandercook Company, 170 U. S. 468; North American Company v. Morrison, 178 U. S. 262. The rule that the plaintiff’s allegations of value govern, in determining the jurisdiction, except where upon the face of his own pleadings it is not legally possible for him to recover the jurisdictional amount, controls even where the declarations show that a perfect defense might be interposed to a sufficient amount of the claim to reduce it below the jurisdictional amount. Schunk v. Moline Co., 147 U. S. 500. In the last case the plaintiff’s petition prayed judgment on several promissory notes, of which some, amounting to $530, were due, and others, amounting to $1,664, were not due, the jurisdictional amount then, as now, being $2,000. In holding that the court had jurisdiction of the claim this court, by Mr^ Justice Brewer, said: “Although there might be a perfect defense to the suit for at least the amount not yet due, yet the fact"
},
{
"docid": "7089991",
"title": "",
"text": "L. Ed. 987; Wilson v. Oswego Township, 151 U. S. 67, 14 Sup. Ct. 259, 38 L. Ed. 70. These cases decide that the issue brought before the court in cases of alleged separable controversy is not whether the party asking for the removal may have a separate decree and a separate execution, but what the whole case shows the controversy to be. Each case of a defendant petitioning for removal of a cause presents the question whether the whole subject-matter of the suit can be determined between the plaintiff and the petitioning defendant without the presence of the other parties. The policy of courts — especially of equity courts — is not to divide the subject-matter of a great controversy into a multitude of small controversies, and the statute of removal does not call for such division. Mr. Justice Story states with perfect clearness the theory of equity courts upon the subject of parties: “It is the great object of courts of equity to put an end to litigation, and to settle, if possible, in a single suit, tbe rights of all parties interested or affected by the subject-matter in controversy.” Story’s Equity Juris, vol. 2, § 1526. The later cases of the Supreme Court also state the rule in conformity with the early and leading cases which we have cited. In Minnesota v. Northern Securities Co., 194 U. S. 64, 24 Sup. Ct. 602, 48 L. Ed. 870, the court says: “Under existing statutes regulating the jurisdiction of the courts of the United States, a case cannot be removed from a state court as one arising under the Constitution or laws of the United States unless the plaintiff’s complaint, bill, or declaration shows it to be a case of that character. ‘If it does not appear at the outset,’ this court has quite recently said, ‘that the suit is one of which the Circuit Court, at the time its jurisdiction is invoked, could properly take cognizance, the suit must be dismissed.’ ” The court, in its opinion, cites and quotes Railway Co. v. Lewis, 173 U. S. 457,"
},
{
"docid": "16107365",
"title": "",
"text": "There is but a single cause of action,—the equitable execution of a judgment against the property of the judgment debtor,—and this cause of action is not divisible. The judgment sought against the incumbrancer is incidental to the main purpose of the suit, and the fact that this incident relates to him alone does not separate this part of the controversy’from the rest of the action. What the plaintiff wants is not partial relief, settling his rights in the property as «gainst this defendant alone, but a complete decree, which will give him a sale of the entire property, free of all incumbrances, and a division of the proceeds as the adjusted equities of each and all the parties shall require. The answer of this defendant shows the questions that will arise under this branch of the one controversy, but it does not create another controversy. The remedy which the plaintiff seeks requires the presence of all the defendants, and the settlement, not of one only, but of all the branches of the case.” In the case last cited, Mr. Justice Gray formulated a general rule ■which has been, accepted in all subsequent cases as expressing the law on this subject. He said: \"But, in order to justify such removal on the ground of a separate controversy between citizens of different states, there must, by the very terms of the statute, be a controversy ‘which can be fully determined as between them’; and, by the settled construction of this section, the whole subject-matter of the suit must he capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit” See, to the same effect, Deposit Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. 733; Bellaire v. Railroad Co., 146 U. S. 117, 13 Sup. Ct. 16; Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835; Barth v. Coler, 9 C. C. A. 81, 60 Fed. 466. There is another fact disclosed by the record equally fatal to the"
},
{
"docid": "7681880",
"title": "",
"text": "against it. Grace v. Insurance Co., 109 U. S. 278, 283, 3 Sup. Ct. 207, 27 L. Ed. 932; Robertson v. Cease, 97 U. S. 646, 24 L. Ed. 1057; Railroad Co. v. Swan, and Craswell v. Belanger, supra. It is true that, prior to the filing of the petition for the removal of the suit, the court had, on motion of the plaintiffs Dormitzer and Tull, and against the protest of their coplaintiffs, made and entered an order dismissing them from the suit; but their coplaintiffs thereupon made a motion that the order be vacated and set aside, which latter motion, the record shows, was-pending and undetermined in the state court at the time of the petition for and transfer of the cause to the circuit court, and was by that court subsequently granted. They were never, therefore, finally dismissed as parties plaintiff. Moreover, the petition for the transfer of the suit was only made by one of the defendants thereto,—the German Savings & Doan Society,—which is insufficient. Railroad Co. v. Martin, 178 U. S. 245, 248, 20 Sup. Ct. 854, 44 L. Ed. 1055; Yarnell v. Felton, 102 Fed. 369, 370, and cases there cited. The contention on the part of the appellees that the defendants-Francis M. Tull and Ernest B. Tull were nominal defendants only cannot be sustained, for the reason hereinafter stated. Jurisdiction, in the circuit court over the suit cannot, therefore, be sustained on the ground of diverse citizenship of the parties, and, as a matter of fact, the removal was not sought on that ground. The petition proceeded upon the ground that there was a separable controversy, but an examination of the complaint very clearly shows that there was-nothing of the kind in the case. In order to justify a removal on the ground of a separate controversy between citizens of different states, said the supreme court in Torrence v. Shedd, 144 U. S. 530, 12 Sup. Ct. 727, 36 L. Ed. 528, “there must, by the very terms of the statute, be a controversy ‘which can be fully determined as between them’; and"
},
{
"docid": "23027233",
"title": "",
"text": "Stat. 552, c. 373, as corrected by the act of August 13,1888, 25 Stat. 433, c. 866, jurisdiction is.given to the Cifcuit Courts over controversies “ between citizens of different States, in which the matter in dispute exceeds ” the sum or value of two thousand dollars. The claim of the plaintiff was to recover $2194.13 and interest. The right to recover this,,or any part thereof, was.challenged by the demurrer. In Gaines v. Fuentes et al., 92 U. S. 10, 20, this court said: “A controversy was involved, in the sense of the statute, whenever any property or claim of the parties capable of pecuniary estimation was the subject of litigation and was presented by the pleadings for judicial determination.” Hilton v. Dickinson, 108 U. S. 165. Within the letter of the statute there was, therefore, a controversy between citizens of different States, in which the matter in dispute was over the sum or value of two thousand dollars.- It matters not that, by the showing in the petition, part of this sum was not yet - due. Plaintiff insisted that it had a right to recover all. That was its claim, and the claim which was disputed by the defendant. Suppose there were no statute in Nebraska like that referred to, and the plaintiff filed a petition exactly like the one before us, excepting that no attachment was asked for, and the right to recover anything was challenged by demurrer, would not the matter in dispute be the amount claimed in the petition? Although there might be a perfect defence to the suit for at least the amount not yet due, yet the-fact of a defence, and a good defence, too, would, not affect the question as to what was the amount in dispute. Suppose an action were brought on a non-negotiable note for $2500, the consideration for which was fully stated in the petition, and which was a sale of lottery tickets, or any other matter distinctly prohibited by statute, can there be a doubt that.the Circuit Court would have jurisdiction? There would be presented a claim to"
},
{
"docid": "3037652",
"title": "",
"text": "them without the presence of other parties, but this is a conclusion of the petitioner not borne out by the record. And so it seems that neither in the pleadings in the state court prior to the petition for removal nor in the petition for removal in connection therewith can we find a separable controversy within the meaning of section 1 of the acts of 188?' and 1888 warranting the removal of this case to the Circuit Court. If we look to the entire record before us and into the case as actually tried in the court below, we find that the only separable controversy in the case was between the Foster Lumber Company and defendant Perry, in which trial by jury wras waived and the separate issue tried by the court. As the suit brought by the plaintiff in error was an action of trespass to try title under the Texas statute wherein the recovery of one tract only was involved and wherein the plaintiff under the state statute could join all parties who claimed adverse interests as defendant, it is doubtful whether any defendant or defendants could under any circumstances make out a case of separable controversy therein which would warrant removal of the case to the Circuit Court of the United States. In Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528, which was a case arising under the more liberal judiciary act of 1875 (Act March 3, 1875, c. 137, 18 Stat. 470 [U. S. Comp. St. 1901, p. 508]), the Supreme Court said: “By section 2 of that act, as heretofore construed by this court, whenever, in any suit of a civil nature in a state court, where the matter -in dispute exceeds the sum or value of $500, ‘there shall be a controversy.which is wholly between citizens of different states, and which can be fully determined as between them,’ any one of those interested in that controversy may remove the whole case into the Circuit Court of the United States, 18 Stat. 470, 471; Barney v. Latham, 103"
},
{
"docid": "3042444",
"title": "",
"text": "unless the debtor shall fail to pay such debt on or before the return day of the court to which suit is brought for the collection of the same; provided, the holder of the obligation sued upon, his agent, or attorney notifies the defendant in writing ten days before suit is brought of his intention to bring suit and also the term of court to which suit shall be brought.” The declaration does not allege that the plaintiff before suit brought gave any notice in writing of his intention to sue. The defendant contends that, unless such allegation is made, the attorney’s fee cannot be collected in this case, and it is therefore not a part of the amount in controversy therein. He relies on such authorities as Saunders on Pleading & Evidence (2d Ed.) 151; 1 Evans’ Harris, 3; 1 Poe’s Pleading & Practice, §§ 565, 566; Renfroe v. Shuman, 94 Ga. 153, 21 S. E. 375. In Vance v. Vandercook, supra, the declaration on its face affirmatively showed that the jurisdictional amount could not be recovered. This declaration merely fails to show af firmatively that such amount can be recovered. I think that this case is ruled by Upton v. McLaughlin, 105 U. S. 640, 26 L. Ed. 1197; Schunk v. Moline, 147 U. S. 500, 13 Sup. Ct. 416, 37 L. Ed. 255; Smithers v. Smith, 204 U. S. 642, 27 Sup. Ct. 297, 51 L. Ed. 656. In the last case it is held: “The rule that the plaintiff’s allegations of value govern in determining the jurisdiction, except where upon the face of his own pleadings it is not legally possible for him to recover the jurisdictional amount, controls even where the declarations show that a perfect defense might be interposed to a sufficient amount of the claim to reduce it below the jurisdictional amount” The demurrer must therefore be overruled."
},
{
"docid": "13888874",
"title": "",
"text": "will govern in all questions of jurisdiction; hut it is equally true that, where it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail.” Neither is it admissible to determine the question of the existence of a dispute involving the necessary jurisdictional amount by an inquiry in the nature of a demurrer to the case stated in tlie pleadings. That a good defense appears from the facts stated to the whole or to a part of the demand does not: affect the jurisdiction of the court, unless, of course, the nature of the claim stated is so manifestly fictitious as to make it legally certain that the amount of the demand is alleged simply to create a jurisdictional sum for the purpose of creating a case within the jurisdiction. The ease of Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 504, 13 Sup. Ct. 416, was a suit to recover §2,194.13, of which §530.09 was due, and the rest, as shown on face of declaration, was not due. The jurisdiction of the court to entertain the suit was challenged by demurrer, upon the ground that, as there could be no recovery of the amount not due, the sum really in dispute was under §2.000. The jurisdiction was maintained, the court, among other things, saying: “It matters not that, by the showing in the petition, part of this sum was not yet duo. Plaintiff insisted that it had a right to recover all. That was its claim, and the claim which was disputed by the defendant. Suppose there were no statute in Nebraska like that referred to, and the plaintiff filed a petition exactly like the one before us, excepting that no attachment was asked for, and the right io recover anything was challenged by demurrer, would not the matter in dispute he the amount claimed in the petition? Although there might he a perfect defense to the suit for at least the amount not yet due, yet the fact of a defense, and a"
},
{
"docid": "3037653",
"title": "",
"text": "claimed adverse interests as defendant, it is doubtful whether any defendant or defendants could under any circumstances make out a case of separable controversy therein which would warrant removal of the case to the Circuit Court of the United States. In Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528, which was a case arising under the more liberal judiciary act of 1875 (Act March 3, 1875, c. 137, 18 Stat. 470 [U. S. Comp. St. 1901, p. 508]), the Supreme Court said: “By section 2 of that act, as heretofore construed by this court, whenever, in any suit of a civil nature in a state court, where the matter -in dispute exceeds the sum or value of $500, ‘there shall be a controversy.which is wholly between citizens of different states, and which can be fully determined as between them,’ any one of those interested in that controversy may remove the whole case into the Circuit Court of the United States, 18 Stat. 470, 471; Barney v. Latham, 103 U. S. 205 [26 L. Ed. 514]; Brooks v. Clark. 119 U. S. 502 [7 Sup. Ct. 301, 30 L. Ed. 482]. But, in order to justify such removal, on the ground of a separate controversy between citizens of different states, there must by the very terms of the statute be a controversy ‘which can be fully determined as between them’; and by the settled construction of this section the whole subject-matter of the suit must be capable of being finally determined as between them and complete relief afforded as to the separate cause of action without the presence of others originally made parties to the suit. Hyde v. Ruble, 104 U. S. 407 [26 L. Ed. 823: Corbin v. Van Brunt, 105 U. S. 576 [26 L. Ed. 1176]; Fraser v. Jennison, 106 U. S. 191 [1 Sup. Ct. 171, 27 L. Ed. 131]; Winchester v. Loud, 108 U. S. 130 [2 Sup. Ct. 311. 26 L. Ed. 677]; Shainwald v. Lewis, 108 U. S. 158 [2 Sup. Ct. 385, 27 L. Ed. 691];"
},
{
"docid": "7960017",
"title": "",
"text": "the lands, the $1,000 should be credited upon the price; and if the titles proved good, and Gardner failed to take and pay for the lands, the $1,000 should be forfeited to the Hampton Company. The Hampton Company furnished an incomplete abstract of title to the lands, and though often requested failed to furnish any other within the 60 days. The land was worth $30,000, and! Gardner alleged that he had sustained, and asked to- recover, damages to the amount of $11,000. Upon all questions of jurisdiction, the sum demanded, not the sum recovered, recoverable, or admitted, is the amount in dispute, unless the record proves to a legal certainty either that the sum demanded cannot be, as a matter of law, the amount in dispute (Vance v. Vandercook Co., 170 U. S. 468, 472, 18 Sup. Ct. 674, 48 L. Ed. 1100; Bank of Arapahoe v. Bradley & Co., 19 C. C. A. 206, 72 Fed. 867), or that it is as a matter of fact a colorable and fictitious sum inserted in bad faith to invoke jurisdiction (Hilton v. Dickinson, 108 U. S. 165, 174, 2 Sup. Ct. 424, 27 L. Ed. 688; Wilson v. Daniel, 3 Dall. (Pa.) 401, 404, 1 L. Ed. 655; Smith v. Greenhow, 109 U. S. 669, 671, 3 Sup. Ct. 421, 27 L. Ed. 1080; Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500, 504, 13 Sup. Ct. 416, 37 L. Ed. 255; Peeler v. Lathrop, 1 C. C. A. 93, 98, 48 Fed. 780, 786. The vendee claimed damages for the breach bjr the vendor of a contract of sale of real estate. The legal measure of such damages is the difference between the contract price and the value of the property, and this was $10,000. The record* fails to convince that this claim was made in bad faith to impose upon the court below and to fraudulently invoke its jurisdiction, and the amount in dispute was sufficient to sustain the action. The next objection is that there was no averment or proof that the vendee would have taken"
},
{
"docid": "6675275",
"title": "",
"text": "of the premises sought to be recovered in this action exceeds $2,000. The allegation of the complaint is that the value of the premises for the possession of which this suit has been instituted is $5,000 and the rental value $25 a month. What is the criterion of the amount in controversy? Is it the value of the title in fee simple to the premises, or only the rental value for a limited time ? In Smith v. Adams, 130 U. S. 167, 9 Sup. Ct. 566, 32 L. Ed. 895, the court say: “By ‘the matter In dispute’ is meant the subject of the litigation, the matter upon which the action is brought and issue is joined, and in relation to which, if the issue be one of fact, testimony is taken.” 130 C. S. 175, 9 Sup. Ct 569, 32 L. Ed. 895. In Security Co. v. Gay, 145 U. S. 123, 12 Sup. Ct. 815, 36 L. Ed. 646, the question before the court was whether the amount involved exceeded $5,000, the amount necessary to confer at that time jurisdiction on the supreme court. The facts were that the plaintiff in error had recovered $9,725.66, while it claimed to be entitled to $12,-155, or $2,429.34 more than the amount recovered. The action was one under the peculiar practice prevailing in the state of Georgia to foreclose a mortgage, but could not settle the title to the mortgaged premises, which could only be judicially determined by an action of ejectment after a recovery in an action on the debt, and it was there held that the amount involved was the difference between the sum recovered and that claimed, and that the jurisdiction of the court must be determined by the amount involved in the particular case, and not by any contingent loss which may be sustained by either one of the parties through the probative effect of the judgment, however certain it may be that such loss will occur. See, also, Troy v. Evans, 97 U. S. 1, 24 L. Ed. 941; Town of Elgin v. Marshall, 106"
},
{
"docid": "23027232",
"title": "",
"text": "Me. Justice Brewer, after stating the case, delivered the opinion of the court. In this case the only question that can be considered \"is, under section 5 of the Court of Appeals act of March 3, 18.91, 26 Stat. 826, c. 517, that of the jurisdiction of the Circuit Court. McLish v. Roff, 141 U. S. 661. The- errors assigned are, first, in overruling the demurrer; second, in holding that the court had jurisdiction to seize and sequester the property to secure the payment of a debt not yet due; third, in holding that it had jurisdiction to issue an attachment upon a demand not yet due; and, fourth, in allowing an attorney’s fee. Of course, the latter matter presents no question of jurisdiction. With respect to the other assignments, the plaintiff was a corporation created by and a citizen of the State of Ohio, and the defendant a citizen of Nebraska. The jurisdiction of the Circuit Court was, therefore, invoked on the ground of diverse citizenship. By the act of March 3, 1887, 24 Stat. 552, c. 373, as corrected by the act of August 13,1888, 25 Stat. 433, c. 866, jurisdiction is.given to the Cifcuit Courts over controversies “ between citizens of different States, in which the matter in dispute exceeds ” the sum or value of two thousand dollars. The claim of the plaintiff was to recover $2194.13 and interest. The right to recover this,,or any part thereof, was.challenged by the demurrer. In Gaines v. Fuentes et al., 92 U. S. 10, 20, this court said: “A controversy was involved, in the sense of the statute, whenever any property or claim of the parties capable of pecuniary estimation was the subject of litigation and was presented by the pleadings for judicial determination.” Hilton v. Dickinson, 108 U. S. 165. Within the letter of the statute there was, therefore, a controversy between citizens of different States, in which the matter in dispute was over the sum or value of two thousand dollars.- It matters not that, by the showing in the petition, part of this sum was not"
},
{
"docid": "7089989",
"title": "",
"text": "and, by the settled construction of this section, the whole subject-matter of the suit must be capable of being finally determined as between, them, and complete relief afforded as to the separate cause of action without the presence of others originally made parties to the suit.” In Louisville R. Co. v. Ide, 114 U. S. 56, 5 Sup. Ct. 735, 29 L. Ed. 63, Mr. Chief Justice Waite, announcing the opinion of the Supreme Court, said: “Separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several, which a plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot' deprive a plaintiff of his right to prosecute his own suit to final determination in his. own way. The cause of action is the subject-matter of the controversy, .and that-is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings. * * * On the one side of the controversy upon that cause, of action is the plaintiff, and on the other all the defendants. The separate defenses of the defendants relate only to their respective interests in the one controversy. The controversy is the case, and the case is not divisible.” In Crump v. Thurber, 115 U. S. 60, 5 Sup. Ct. 1154, 29 L. Ed. 328, Mr. Justice Blatchford, for the Supreme Court, said: “The jurisdiction of the Circuit Court must be determined, for the purpose of this case, by the status of the parties and the nature of the relief which had been asked by the plaintiff at the time of the application for removal.” Blake v. McKim, 103 U. S. 336, 26 L. Ed. 563; Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823; Ayres v. Wiswall, 112 U. S. 187, 5 Sup. Ct. 90, 28 L. Ed. 693; Brown v. Trousdale, 138 U. S. 389, 11 Sup. Ct. 308, 34"
},
{
"docid": "15775230",
"title": "",
"text": "SHIRAS, District Judge. This suit was brought in the district court of Plymouth county, Iowa, and in due season the defendant filed a petition for removal of the suit into this court, it being averred in the said petition “that in the above-entitled cause there is a controversy which is wholly between persons of different states, to wit, a controversy between your petitioner, the Milwaukee Mechanics’ Insurance Company, a corporation which your petitioner avers was at the commencement of this suit, ever since has been, and still is, a citizen and resident of the state of Wisconsin, and said plaintiff, P. F. Dalton, who, your petitioner avers, was at the commencement of this suit, ever since has been, and still is, a citizen and resident of the state of Iowa, and that your petitioner was not at the commencement of this suit, nor has it ever been, and is not now, a resident or citizen of the state of Iowa.” The transcript having been filed in this court, the plaintiff moves for an order remanding the case on the ground that this court is without jurisdiction over the suit, for the reason that the jurisdictional facts authorizing a removal are not made to appear upon the record; and thereupon the defendant asks leave to amend the petition for removal by adding thereto the averments “that the amount in controversy between said plaintiff and defendant exceeds in value the sum of $2,000, exclusive of interest and costs,” and that “the defendant is a corporation organized and existing under and by virtue of the laws of the state of Wisconsin.” THe first question to be considered is whether the record upon its face was sufficient to inform the state court that its jurisdiction over the case was at an end. Thus in Insurance Co. v. Pechner, 95 U. S. 183, 24 L. Ed. 427, it is said: “This right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his is a case which comes within the provisions of the statute. His petition"
}
]
|
382909 | bill, and in effect sustained defendant’s motion of November 24th and its contentions generally. lie also announced, in his written opinion, a denial of plaintiff’s nunc pro tunc order, and on the same day lodged with the clerk of the court plaintiff’s proposed entry, with respondent’s refusal indorsed thereon. The petition for mandamus followed. We think respondent did not lose jurisdiction to settle and sign a bill of exceptions. While the judgment was entered at the February term, and jurisdiction to settle bill of exceptions would, unless under extraordinary circumstances, be lost by the expiration of that term, unless control was in some way reserved (Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, 37 L. Ed. 1037; REDACTED f exceptions into the October term. Jurisdiction was clearly not lost by the 2 days’ delay in entering the extension order of November 19th. The order was seasonably made, and there was no unconscionable delay in filing. The only substantial question, so far as jurisdiction is concerned, was whether it should date from November 19th or November 21st, and thus whether it would expire on December 4th or December 6th. Control over the settlement of bill having been carried into the October term, there was jurisdiction to make further extension during the term. Mahoning | [
{
"docid": "7754374",
"title": "",
"text": "appellee.” Common law rule 55, under which the appellant claimed the right to have his bill of exceptions filed within thirty-eight days after the rendition of the judgment, was applicable only so long as the judgment term was running and did not operate to extend the power of the trial judge over the record beyond the term. No order had been made in term time for the filing of such a delayed bill. Not only had the term closed, but an appeal had been allowed and perfected. The trial court had thereby lost control of the cause, and had no authority to add to or take from the record. In Michigan Insurance Bank v. Eldred, 143 U. S. 293, 298, this court said: “By the uniform course of decision, no exceptions to rulings at a trial.can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circum stances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court's control over the casé being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend a bill of exceptions already allowed and filed, is at an end.” See also Morse v. Anderson, 150 U. S. 156; Muller v. Ehlers, 91 U. S. 249; Merchants’ Insurance Co. v. Buckner, C. C. A., 6th Cir., 98 Fed. Rep. 222. But it is urged that if the appellee consented that an order might be entered nunc pro tunc, permitting. the' filing and allowance of a bill of exceptions, such consent should be given the force of an order in term or a rule"
}
]
| [
{
"docid": "5993604",
"title": "",
"text": "disposition of December 21st. While formal applica tion was not made, during the pendency of these motions, for an extension of time beyond December 4th or December 6th, yet, as respondent returns, he “assumed in his opinion filed December 21st that plaintiff’s counsel must have intended to ask for a nunc pro tunc order, which would preserve their right to present and file a bill of exceptions.”' This intention, shown by efforts to settle bill of exceptions on and after December 12th, is not negatived by the fact that respondent did not know, until .that date, that the previous extension had expired. It follows that jurisdiction over the settlement of the bill was not lost when the. order of December 21st was made, and, this being so, that respondent still has such jurisdiction. We cannot, however, award the writ of mandamus; for not only was no complete bill ever presented in actual readiness for signature (and thus there has been no refusal to actually sign a confessedly proper bill), but the question whether further time should be granted therefor was within respondent’s judicial discretion, over which we have no control, unless that discretion has been abused; and we cannot so say. ' We have stated our views on the subject of jurisdiction only because it is not clear how far respondent’s exercise oí discretion with respect to granting further time may have been influenced by the view that jurisdiction was lost. Whether such discretion shall be further exercised rests with respondent. It is urged that no writ of error has been taken out, that the time therefor has expired, and that for these reasons bill of exceptions should not be settled. If the premises are correct the conclusion follows, for in such case a bill of exceptions would be futile. No writ of error has ever issued, nor has order therefor been made; and courts have no power to extend the statutory period for taking out the writ. Nor did the pendency of settlement of bill of exceptions have that effect, for there was no legal reason why issue of"
},
{
"docid": "13238028",
"title": "",
"text": "Rule 35 adopt' ed by the United States District Court for the Southern District of New York, the respective attorneys negotiated, beginning October 1, 1931, and continuing to November 6, 1931, as to the contents of the record on appeal. On October 31, 1931, the appel-lees’ attorneys agreed with the appellants’ attorneys to an extension of time to November 14, 1931, for such purpose. On November 4, 1931, the appellants’ attorneys sent a written stipulation to appellees’ attorneys for signature. It was returned signed November 5th or 6th. It is very clear that counsel were negotiating as to the record with a view of expediting the printing. On November 6, 1931, the attorneys conferred and did not agree as to the contents of the record. On the same day, November 6,1931, in the presence of Judge Goddard, who later settled and approved the record, the promise of the appellees to extend the time was made known. Judge Goddard then orally extended the time until November 27th. A formal motion for the extension was made and heard by Judge Coleman November 10, 1931. At this time the appellees’ attorneys, contrary to their previous consent, opposed the granting of the extension of time, stating that the court had no authority to extend the time because it had lost jurisdiction by reason of the provisions of General Rules 6 and 35 (b). Judge Coleman accepted this view and denied the motion for an extension. , On December 9th and after the 90 days’ extension under General Rule 6 had expired, Judge Goddard settled the record and overruled the contention that jurisdiction was lacking. It is now urged that settlement of the record on that day conflicted directly with General Rule 35 (b), which provides that “no apostles, record or bill of exception will be settled or filed after the term as extended by Rule 6 or by special order has expired.” Every court in the exercise of its judicial functions may make rules of procedure to regulate its administration of justice to the extent that the statutes do not provide the procedure to"
},
{
"docid": "15718898",
"title": "",
"text": "reluctantly forced to the conclusion that the court was without jurisdiction to enter this order. Exporters of Mfrs. Products v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 332, 66 L. Ed. 663; O’Connell v. United States, 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. 827; Jennings v. Philadelphia, B. & W. Ry. Co., 218 U. S. 255, 31 S. Ct. 1, 54 L. Ed. 1031; Farmers’ Union Grain Co. v. Hallet & Carey Co. (C. C. A.) 21 F.(2d) 42; Id. (C. C. A.) 22 F. (2d) 796; Bennett v. Riverland Co. (C. C. A.) 15 F.(2d) 491. In Exporters of Mfrs.’ Products v. Butterworth-Judson Co., supra, the Supreme Court said: “In the present cause the term as extended had expired before any action concerning the bill of exceptions was taken by either court or counsel. In such circumstances the court had no power to approve it, unless this could be conferred by mere consent of counsel. This they could not do. * * * “We think the better rule and the one supported by former opinions of this court requires that bills of exceptions shall be signed before the trial court loses jurisdiction of the cause by expiration of the term or such time thereafter as may have been duly prescribed.” The question is squarely passed upon by the Supreme Court in Jennings v. Philadelphia, B. & W. Ry. Co., supra, where it was said: “No order had been made in term time for the filing of such a delayed bill. Not only had the term closed, but an appeal had been allowed and perfected. The trial court had thereby lost control of the cause, and had no authority to add to or take from the record.” This court in the recent ease of Farmers’ Union Grain Co. v. Hallet & Carey Co., supra, said: “It seems to us that the Supreme Court has finally, concluded that jurisdiction to settle a bill of exceptions cannot be conferred upon the court by the acts of the parties, when it says: 'Consent of parties cannot"
},
{
"docid": "7936282",
"title": "",
"text": "delay of the judge.” It is also said that the ruling was not in conflict with the decision in Muller v. Ehlers; and the case of U. S. v. Breitling, notwithstanding what is said of it in Muller v. Ehlers, is approved. In Re Chateaugay Ore & Iron Co., 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508, a mandamus was allowed commanding the judge of the circuit court to settle the bill according to the truth of the matters, and to sign it when settled, -he having refused to settle and sign, it upon the. ground that the term of the court at which the action was tried expired on the 31st of March. The bill and the amendments having previously been prepared by the respective counsel, the attorney for the defendant on the 27th of March served a notice of settlement by the judge on the 10th of April. He could have procured the settlement of and signature to the exceptions upon four days’ notice,. which would have been within the term, but he followed the prevailing practice in the state courts. It appeared, however, that the trial judge on the 31st day of March was not within the Southern district of New York, so as to be able to perform any judicial act there, nor did he come there, so as to be able to do so, until the 2d of April. The court held that the bill should have been signed under the circumstances detailed, and that the decision in Muller v. Ehlers had no application. In Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, 37 L. Ed. 1037, the trial was had in December, 1887. A bill of exceptions was tendered to the judge on the 24th of that month, which he declined to sign, and returned to counsel with suggestions. On January 14, 1888, the court extended the time within which- another bill of exceptions could be prepared and tendered to the 15th of March. Before this date another bill of exceptions was tendered to the judge, which,"
},
{
"docid": "15718896",
"title": "",
"text": "docketed and dismissed by the appellee, the appellant is in time if the record be filed during the return term.’ * * * “Where under these rules the transcript or return is filed in the appellate court after the return day named in the writ, but before the expiration of the next term after the writ issued, the writ is in force unless before the filing of the transcript or return the defendant in error has moved to dismiss the case.” In the instant ease, the term at which it should have been docketed had not passed when appellant endeavored to docket same and filed her motion for leave so to do. This •motion was filed before the appellee filed its motion to docket and dismiss. We are therefore of the view that the 'motion to dismiss the appeal on the ground urged is not well taken, and it is denied. The motion to strike the bill of exceptions is urged on the ground that the bill was not settled within the term at which the judgment was entered, nor within any extension thereof. The term lapsed November 2, 1929, and a new term began November 4, 1929. On December 18, 1929, the bill of exceptions was settled. No motion for a new trial was ever filed, and there was no standing rule in the trial court extending the time for the filing of bills of exceptions. On November 30, 1929, an order was entered, purporting to extend the time for filing the bill of exceptions to January 19, 1930. This order, it will be observed, was not entered until after the April term had expired. It is claimed that the judge was without jurisdiction to settle the bill because the term of court had expired, and no order had been entered during the judgment term, ■ extending ■ the time for settling the bill. We assume that good cause for extension existed, as found by the court, on November 30, 1929, but the question presented is whether or not the court had lost jurisdiction over the ease. We are"
},
{
"docid": "23109343",
"title": "",
"text": "It is undoubtedly within the power of a court during the judgment term to enter an order extending the term, and thus take the case out of the operation of the general rule that the power to reduce exceptions to form and have them signed and filed is, under ordinary circumstances, confined to the term at which the judgment is rendered. When a term has been so extended, the Supreme Court has said: “It may be further extended by another order, made after the expiration of the original limits of the term.” That court has also more than once expressed the opinion that by consent of the forties a bill of exceptions might be signed and filed after the term- expired. Muller v. Ehlers, 91 U. S. 249, 251, 23 L. Ed. 319 (1875); Michigan Insurance Bank v. Eldred, 143 U. S. 293, 298, 12 Sup. Ct. 450, 36 L. Ed. 162 (1892); Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195 (1893). And in Jennings v. Philadelphia, Baltimore & Washington R. R. Co., 218 U. S. 255, 257, 31 Sup. Ct. 1, 2, 54 L. Ed. 1031 (1910), the court said: “So grave a matter as the allowance of a bill of exceptions after the close of the term, and after the court had lost all judicial^ power over the record, should not rest upon a mere implication from silence. There should be express consent, or conduct which should equitably estop the opposite party from denying that he had consented.” The record in the case at bar discloses that from time to time the court by its orders extended the time to settle the bill of exceptions. The parties by stipulation have also on numerous occasions extended the time. The conduct of the government between the time of the judgment of conviction and the time of the making of the motion to dismiss has been such as makes it inequitable to assert that defendant is in default as to the settlement of the bill of exceptions. The attorney for the United States requested"
},
{
"docid": "7936283",
"title": "",
"text": "the term, but he followed the prevailing practice in the state courts. It appeared, however, that the trial judge on the 31st day of March was not within the Southern district of New York, so as to be able to perform any judicial act there, nor did he come there, so as to be able to do so, until the 2d of April. The court held that the bill should have been signed under the circumstances detailed, and that the decision in Muller v. Ehlers had no application. In Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, 37 L. Ed. 1037, the trial was had in December, 1887. A bill of exceptions was tendered to the judge on the 24th of that month, which he declined to sign, and returned to counsel with suggestions. On January 14, 1888, the court extended the time within which- another bill of exceptions could be prepared and tendered to the 15th of March. Before this date another bill of exceptions was tendered to the judge, which, as he thought, did not conform to his suggestions, and the matter was held open for argument before him. An order was entered extending the time to tender a bill until the second day of the next term of the court, May 15th, and the time was again extended by order until July 2d. The trial judge certified that “since the commencement of the December term, 1888, plaintiff’s counsel had made various efforts to have counsel of defendant Anderson present and before me so that a bill of exceptions might be prepared and signed; but, owing to sickness of family of counsel, this has been impracticable until the .bill of exceptions now signed by me as of April, 1889.” The court affirmed the judgment for want of bill of exceptions seasonably allowed, upon authority of the cases stated, and without discussion. There .was in this case manifestly great delay, which was not sought to be excused. If the bill of exceptions had been signed on or prior to- July 2, 1888, it would have been"
},
{
"docid": "21346889",
"title": "",
"text": "the deficiency and the over-assessment was abated, all in accordance with the stipulation and the order of re-determination. Upon the conclusion of the evidence relating to the plea, the court filed a written opinion consisting of findings of fact and conclusions of law. The plea was sustained and judgment rendered against the taxpayer This appeal seasonably followed. A motion was filed to strike the bill of exceptions because it was not signed, settled, and approved during the term of court at which the judgment was rendered, or within an asserted 60-day extension allowed for that purpose. The cause was tried and the judgment entered in April, 1936. The bill was settled and approved in June. The terms of court in the Western District of Oklahoma begin at Oklahoma City on the first Monday in January, at Enid on the first Monday in March, at Guthrie on the first Monday in May, at Mangum on the first Monday in September, at Lawton on the first Monday in October, at Woodward on the first Mon day in November, and at Ponca City on the first Monday in December. 28 U.S.C.A. § 182. It is contended that the bill was settled after the 60-day extension expired and during a new term of court which had convened at Guthrie. The record does not contain an order of extension, all reference to its existence or nonexistence appearing in affidavits of counsel. The certificate and order of the court settling and approving the bill expressly recites that it was made during the term at which the cause was heard and determined. A certificate of the clerk likewise discloses that the term had not been expressly adjourned at the time the bill was settled and approved. The essence of the motion and of the argument made in support of it, is that the term at which the judgment was rendered automatically expired upon the convening of the next term on the date fixed in the statute. The contention fails to find support in the authorities. A bill of exceptions must be settled during the term at which"
},
{
"docid": "22969284",
"title": "",
"text": "its stay of execution upon the sentence to October 15th. On August 31st defendant moved for an extension of time within which to file bill of exceptions and for a new trial, and same was continued until October 15th, and again on the latter date to November 3d. On October 26th defendant moved for allowance of an appeal. On October 30, 1934, upon appellant’s motion, the court entered an order allowing the appeal and directed that it be entered nunc pro tunc as of July 31, 1934. On November 6th the stay of execution was further extended until November 30th, and motion for extension of time to file bill of exceptions was continued until November 30th. On November 30, 1934, the court denied appellant’s second motion for new trial and fixed the appeal bond at $15,000. On December 1st the court entered an order extending the time for filing bill of exceptions to December 22d. On December 20th Mack, Wikoff & Ross, and Orville R. Seiter moved for leave to enter their appearance as additional counsel for appellant. Said motion was allowed. Counsel thereupon moved to extend further the time for filing bill of exceptions. This motion was denied. Defendant then moved for an order granting an appeal. This the court denied, obviously because a prior appeal had been perfected. The affidavit of Seiter recited that he was one of the attorneys for defendant at the time of the trial and participated therein; that appellant had been taken to the penitentiary upon commitment; that, because of the voluminous character of the record, additional time was required within which to file a bill of exceptions. Apparently, the court had in mind that the judgment of conviction had been entered in July, that the time expiring since that date was then ripening into 6 months and that further delay was not necessary, ,and that, had diligence been observed by appellant, he would not have needed to inaxe the request. On February 2, 1935, at a term succeeding that at which the last of the orders heretofore mentioned was entered, defendant obtained an"
},
{
"docid": "22989920",
"title": "",
"text": "After expiration of the three months specified by Rule 9, plaintiffs in error having in open court requested further extension, the United States attorney announced that he would not consent but would ask the court to refuse to settle any bill thereafter proposed. In April, 1918, he moved that settlement of the proposed bill be refused and that it be stricken from the files. The court expressed the opinion that the bill was too late unless the United States attorney had waived objection thereto, and on that point said: “I am very strongly of the view that, owing to the attitude of the United States attorney, distinctly stated theretofore, which was all that could be done under the circumstances, this was not such a waiver.” But, in order that the matter might be brought here for final determination, the facts were set out and the certificate signed. Under the statute the trial term expired November 15; but, for the purpose of filing the bill of exceptions, a general rule' extended it to December 4 — three months from the first Tuesday in September. The last order of court within the extended term designated December 15 as the final day for action. “By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at. the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties . . . After the term has expired, without the court’s control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to. alter or amend a bill of exceptions already allowed and filed, is at an end.” Michigan Insurance Bank v. Eldred, 143 U. S. 293, 298. We think the power"
},
{
"docid": "13040499",
"title": "",
"text": "counsel.” The facts above stated are not disputed, and the question is therefore presented, whether the bill of exceptions neceásary to bring before this court the statutory record, as to which error is assigned, could be allowed by the court after the expiration of the term at which the judgment in the case was entered, the court’s control over the case not having been extended by standing rule or special order. On reason and authority, we think this question must be answered in the negative. In Michigan Ins. Bank v. Eldred, 143 U. S. 298, 12 Sup. Ct. 452, 36 L. Ed. 162, Mr. Justice Gray, delivering the opinion of the court, says: “By the uniform course of decision, no exceptions to rulings at a trial can -be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with tfie clerk during the same term. After the term has expired, without the court’s control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend a bill of exceiRions already allowed and filed, is at an end. United States v. Breitling, 20 How. 252 [15 L. Ed. 900]; Muller v. Ehlers, 91 U. S. 249 [23 L. Ed. 319]; Jones v. Grover & Baker Co., 131 U. S. appx. cl [24 L. Ed. 925]; Hunnicutt v. Peyton, 102 U. S. 333 [26 L. Ed. 113]; Davis v. Patrick, 122 U. S. 138 [7 Sup. Ct. 1102, 30 L. Ed. 1090]; Chateaugay Co., Petitioner, 128 U. S. 544 [9 Sup. Ct. 150, 32 L. Ed. 508]. “The duty of seasonably drawing"
},
{
"docid": "5993602",
"title": "",
"text": "bill of exceptions would, unless under extraordinary circumstances, be lost by the expiration of that term, unless control was in some way reserved (Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, 37 L. Ed. 1037; Jennings v. Railroad Co., 218 U. S. 255, 257, 31 Sup. Ct. 1, 54 L. Ed. 1031), yet the extension of 60 days embraced in the judgment entry ipso facto carried the control over the bill of exceptions into the October term. Jurisdiction was clearly not lost by the 2 days’ delay in entering the extension order of November 19th. The order was seasonably made, and there was no unconscionable delay in filing. The only substantial question, so far as jurisdiction is concerned, was whether it should date from November 19th or November 21st, and thus whether it would expire on December 4th or December 6th. Control over the settlement of bill having been carried into the October term, there was jurisdiction to make further extension during the term. Mahoning Valley Ry. Co. v. O’Hara (C. C. A. 6) 196 Fed. 945, 947, 116 C. C. A. 495. The eases relied upon are not authority for a contrary contention. There was thus jurisdiction, between December 4th and December 21st, to settle bill or extend time therefor, provided the court meanwhile kept control over the subject. The rule is well settled that the pendency of motion for new trial preserves the court’s control over the judgment, including the settlement of bill of exceptions. Kingman v. Manufacturing Co., 170 U. S. 675, 678, 18 Sup. Ct. 786, 42 L. Ed. 1192; Merchants’ Ins. Co. v. Buckner (C. C. A. 6) 98 Fed. 222, 224, 225, 39 C. C. A. 19; Mahoning Valley Ry. Co. v. O’Hara, supra. We think the same principle applies here, and that such con trol was preserved by the entertaining of the motion of November 24th, the continuation of the proceedings between counsel relating to the form of bill (for defendant’s nonwaiver of its motion did not affect jurisdiction), the formal hearing of December 12th, and the final orders of"
},
{
"docid": "7971449",
"title": "",
"text": "the right of the party seasonably to demand a bill of exceptions, but it is not the same thing, and has never been so considered in the federal courts, or in any other jurisdiction where the rules and practice of the common law prevail.” In Adams v. Shirk, snpra, it was held that a bill of exceptions cannot be amended at a term subsequent to that at which it was filed, in order to correct an omission, due to the party’s own neglect or oversight. Franklin County v. Furry, supra, is to the same effect. In Hanna v. Maas, 122 U. S. 24, 7 S. Ct. 1035, 30 L. Ed. 1117, the court said: “Minutes of tlie judge or clerk, or notes of a stenographer, cannot take the place of a bill of exceptions, but are only memoranda by the aid of which one may afterwards bo drawn up. (Citing eases.) The exceptions must be drawn up and settled in proper form in the court below, and cannot be amended or redrafted in this court.” Michigan Insurance Bank v. Eldred, 143 U. S. 293, 12 S. Ct. 450, 36 L. Ed. 162, is directly in point. There a bill of exceptions was signed by the judge before the adjournment of his term. The writ of error was sued out and entered in the Supreme Court. In that bill certain exceptions were omitted. Later, the same judge, upon the application of plaintiff’s attorneys, amended this bill to show the omitted exceptions. After the bill had been amended accordingly, the judge signed it nunc pro tune, and ordered it to be thus filed as of the day the original hill of exceptions was signed and filed. In the Supreme Court the plaintiff in error moved for a writ of certiorari to bring up tho record of these later proceedings. After holding that, after tho term had expired, without the court’s control over the ease being reserved, all authority of the trial court to allow a hill of exceptions then first presented, or te alter or amend a bill of exceptions already allowed"
},
{
"docid": "5993599",
"title": "",
"text": "PER CURIAM. Petition for writ of mandamus directing respondent to approve and settle bill of exceptions in the case of Camden Iron Works v. City of Cincinnati. Respondent’s reasons, given in his answer, for not approving and signing a bill of exceptions are, broadly stated, first, that no completed bill ready for approval and signature was ever presented to him; second, that respondent had lost jurisdiction to sign and settle the bill, because the time therefor had expired; and, third, that, if respondent still had discretionary power to extend the time, it ought not to be exercised because of petitioner’s lack of diligence in preparing the bill. t The question of jurisdiction arises in this way: Judgment was entered September 11, 1914, and 60 days given plaintiff for preparing bill of exceptions and assignment of errors and filing the same for the consideration of the court. November 9th another extension of 10 days was given. On November 18th or 19th respondent signed an extension for 15 days and mailed it to' petitioner’s counsel, who received it on November 19th, but did not file it with the clerk of the court until November 21st. Three days later defendant filed a motion to vacate the order of extension on the ground (so far as now material) that it was filed two days late and that the court had no ‘jurisdiction to make the extension or to sign a bill of exceptions. This motion was entertained by the court, but was not decided until December 21st. Meanwhile, on December 11th, defendant filed objections and proposed amendments to the bill of exceptions tendered; its objections expressly stating that its motion of November 24th was not waived. On the.next day plaintiff’s counsel presented to respondent a proposed bill, stating, however, that certain exhibits had not been made part thereof, and that a controversy existed to some extent between opposing counsel regarding the contents of the bill. Respondent de dined at the time to grant a hearing on the bill, for the reason that he had not decided the motion of November 24th, and because of"
},
{
"docid": "5993600",
"title": "",
"text": "it on November 19th, but did not file it with the clerk of the court until November 21st. Three days later defendant filed a motion to vacate the order of extension on the ground (so far as now material) that it was filed two days late and that the court had no ‘jurisdiction to make the extension or to sign a bill of exceptions. This motion was entertained by the court, but was not decided until December 21st. Meanwhile, on December 11th, defendant filed objections and proposed amendments to the bill of exceptions tendered; its objections expressly stating that its motion of November 24th was not waived. On the.next day plaintiff’s counsel presented to respondent a proposed bill, stating, however, that certain exhibits had not been made part thereof, and that a controversy existed to some extent between opposing counsel regarding the contents of the bill. Respondent de dined at the time to grant a hearing on the bill, for the reason that he had not decided the motion of November 24th, and because of defendant’s denial of respondent’s right to allow and sign a bill. At this time plaintiff’s counsel presented draft of an order for filing the extension, order in question nunc pro tunc as of November 19th, instead of November 21st, and orally requested its entry, which respondent refused. On December 15th hearing was had, presumably including the motion of November 24th and the question generally of respondent’s jurisdiction to settle the bill, as well as the propriety of the bill as tendered. On December 21st respondent denied the application to allow and sign the bill, and in effect sustained defendant’s motion of November 24th and its contentions generally. lie also announced, in his written opinion, a denial of plaintiff’s nunc pro tunc order, and on the same day lodged with the clerk of the court plaintiff’s proposed entry, with respondent’s refusal indorsed thereon. The petition for mandamus followed. We think respondent did not lose jurisdiction to settle and sign a bill of exceptions. While the judgment was entered at the February term, and jurisdiction to settle"
},
{
"docid": "5993601",
"title": "",
"text": "defendant’s denial of respondent’s right to allow and sign a bill. At this time plaintiff’s counsel presented draft of an order for filing the extension, order in question nunc pro tunc as of November 19th, instead of November 21st, and orally requested its entry, which respondent refused. On December 15th hearing was had, presumably including the motion of November 24th and the question generally of respondent’s jurisdiction to settle the bill, as well as the propriety of the bill as tendered. On December 21st respondent denied the application to allow and sign the bill, and in effect sustained defendant’s motion of November 24th and its contentions generally. lie also announced, in his written opinion, a denial of plaintiff’s nunc pro tunc order, and on the same day lodged with the clerk of the court plaintiff’s proposed entry, with respondent’s refusal indorsed thereon. The petition for mandamus followed. We think respondent did not lose jurisdiction to settle and sign a bill of exceptions. While the judgment was entered at the February term, and jurisdiction to settle bill of exceptions would, unless under extraordinary circumstances, be lost by the expiration of that term, unless control was in some way reserved (Morse v. Anderson, 150 U. S. 156, 14 Sup. Ct. 43, 37 L. Ed. 1037; Jennings v. Railroad Co., 218 U. S. 255, 257, 31 Sup. Ct. 1, 54 L. Ed. 1031), yet the extension of 60 days embraced in the judgment entry ipso facto carried the control over the bill of exceptions into the October term. Jurisdiction was clearly not lost by the 2 days’ delay in entering the extension order of November 19th. The order was seasonably made, and there was no unconscionable delay in filing. The only substantial question, so far as jurisdiction is concerned, was whether it should date from November 19th or November 21st, and thus whether it would expire on December 4th or December 6th. Control over the settlement of bill having been carried into the October term, there was jurisdiction to make further extension during the term. Mahoning Valley Ry. Co. v. O’Hara (C. C."
},
{
"docid": "23109342",
"title": "",
"text": "arising upon the application to the United States Supreme Court, which were answered on November 16, 1914. United States v. Mayer, 235 U. S. 55, 35 Sup. Ct. 16, 59 L. Ed. 129 (1914). This no doubt complicated the situation and delayed to some extent the prosecution of the case in this court. The counsel for the government has not been misled in any stage of these proceedings, has not supposed at any time that the prosecution had been abandoned, had no reason for complaining of unreasonable delay, and any delay which has occurred since the bill of exceptions was, as we hold, validly settled, has not led to the continuance of the case over any term of the court. The motion to dismiss, made under the above circumstances and after $10,000 has been expended in printing the record, and after a delay for which the government’s counsel is not free from fault, cannot be granted. This brings us to consider the second objection, that there is no- proper bill of exceptions before tlie court. It is undoubtedly within the power of a court during the judgment term to enter an order extending the term, and thus take the case out of the operation of the general rule that the power to reduce exceptions to form and have them signed and filed is, under ordinary circumstances, confined to the term at which the judgment is rendered. When a term has been so extended, the Supreme Court has said: “It may be further extended by another order, made after the expiration of the original limits of the term.” That court has also more than once expressed the opinion that by consent of the forties a bill of exceptions might be signed and filed after the term- expired. Muller v. Ehlers, 91 U. S. 249, 251, 23 L. Ed. 319 (1875); Michigan Insurance Bank v. Eldred, 143 U. S. 293, 298, 12 Sup. Ct. 450, 36 L. Ed. 162 (1892); Ward v. Cochran, 150 U. S. 597, 14 Sup. Ct. 230, 37 L. Ed. 1195 (1893). And in Jennings v. Philadelphia, Baltimore"
},
{
"docid": "5993603",
"title": "",
"text": "A. 6) 196 Fed. 945, 947, 116 C. C. A. 495. The eases relied upon are not authority for a contrary contention. There was thus jurisdiction, between December 4th and December 21st, to settle bill or extend time therefor, provided the court meanwhile kept control over the subject. The rule is well settled that the pendency of motion for new trial preserves the court’s control over the judgment, including the settlement of bill of exceptions. Kingman v. Manufacturing Co., 170 U. S. 675, 678, 18 Sup. Ct. 786, 42 L. Ed. 1192; Merchants’ Ins. Co. v. Buckner (C. C. A. 6) 98 Fed. 222, 224, 225, 39 C. C. A. 19; Mahoning Valley Ry. Co. v. O’Hara, supra. We think the same principle applies here, and that such con trol was preserved by the entertaining of the motion of November 24th, the continuation of the proceedings between counsel relating to the form of bill (for defendant’s nonwaiver of its motion did not affect jurisdiction), the formal hearing of December 12th, and the final orders of disposition of December 21st. While formal applica tion was not made, during the pendency of these motions, for an extension of time beyond December 4th or December 6th, yet, as respondent returns, he “assumed in his opinion filed December 21st that plaintiff’s counsel must have intended to ask for a nunc pro tunc order, which would preserve their right to present and file a bill of exceptions.”' This intention, shown by efforts to settle bill of exceptions on and after December 12th, is not negatived by the fact that respondent did not know, until .that date, that the previous extension had expired. It follows that jurisdiction over the settlement of the bill was not lost when the. order of December 21st was made, and, this being so, that respondent still has such jurisdiction. We cannot, however, award the writ of mandamus; for not only was no complete bill ever presented in actual readiness for signature (and thus there has been no refusal to actually sign a confessedly proper bill), but the question whether further time"
},
{
"docid": "15718897",
"title": "",
"text": "the judgment was entered, nor within any extension thereof. The term lapsed November 2, 1929, and a new term began November 4, 1929. On December 18, 1929, the bill of exceptions was settled. No motion for a new trial was ever filed, and there was no standing rule in the trial court extending the time for the filing of bills of exceptions. On November 30, 1929, an order was entered, purporting to extend the time for filing the bill of exceptions to January 19, 1930. This order, it will be observed, was not entered until after the April term had expired. It is claimed that the judge was without jurisdiction to settle the bill because the term of court had expired, and no order had been entered during the judgment term, ■ extending ■ the time for settling the bill. We assume that good cause for extension existed, as found by the court, on November 30, 1929, but the question presented is whether or not the court had lost jurisdiction over the ease. We are reluctantly forced to the conclusion that the court was without jurisdiction to enter this order. Exporters of Mfrs. Products v. Butterworth-Judson Co., 258 U. S. 365, 42 S. Ct. 331, 332, 66 L. Ed. 663; O’Connell v. United States, 253 U. S. 142, 40 S. Ct. 444, 64 L. Ed. 827; Jennings v. Philadelphia, B. & W. Ry. Co., 218 U. S. 255, 31 S. Ct. 1, 54 L. Ed. 1031; Farmers’ Union Grain Co. v. Hallet & Carey Co. (C. C. A.) 21 F.(2d) 42; Id. (C. C. A.) 22 F. (2d) 796; Bennett v. Riverland Co. (C. C. A.) 15 F.(2d) 491. In Exporters of Mfrs.’ Products v. Butterworth-Judson Co., supra, the Supreme Court said: “In the present cause the term as extended had expired before any action concerning the bill of exceptions was taken by either court or counsel. In such circumstances the court had no power to approve it, unless this could be conferred by mere consent of counsel. This they could not do. * * * “We think the better"
},
{
"docid": "5993605",
"title": "",
"text": "should be granted therefor was within respondent’s judicial discretion, over which we have no control, unless that discretion has been abused; and we cannot so say. ' We have stated our views on the subject of jurisdiction only because it is not clear how far respondent’s exercise oí discretion with respect to granting further time may have been influenced by the view that jurisdiction was lost. Whether such discretion shall be further exercised rests with respondent. It is urged that no writ of error has been taken out, that the time therefor has expired, and that for these reasons bill of exceptions should not be settled. If the premises are correct the conclusion follows, for in such case a bill of exceptions would be futile. No writ of error has ever issued, nor has order therefor been made; and courts have no power to extend the statutory period for taking out the writ. Nor did the pendency of settlement of bill of exceptions have that effect, for there was no legal reason why issue of writ should not precede settlement of bill. Hunnicutt v. Peyton, 102 U. S. 333, 354, 355, 26 L. Ed. 113; Shreve v. Cheesman (C. C. A. 8) 69 Fed. 785, 787, 16 C. C. A. 413. The petition for writ.of error and draft of order of allowance seem to have been lodged with the clerk of the court in December, and thus within 6 months after judgment; and we understood a claim to be made at the argument of the instant case that issue of the writ was actually applied for during that month. As this claim involves a disputed question of fact not within the issues in the mandamus case (for the 6 months had not run when the petition and answer were filed), we shall not attempt to determine whether petitioner has preserved right to writ of error, but shall leave that question to be decided when, if ever, it becomes material. The petition for writ of mandamus is dismissed, with costs."
}
]
|
223256 | was firmly rebutted in United States v. H.G.D. & J. Mining Co. (In re H.G.D. & J. Mining Co.), 74 B.R. 122 (S.D.W.Va.1986), which found no evidence in the Bankruptcy Code or in the legislative history that Congress intended to treat interest on a tax claim differently than the claim itself. Other courts have generally adhered to this reasoning in granting a priority to interest on pre-petition taxes. E.g., In re EEI Energy, Inc., 75 B.R. 637 (Bkrtcy.N.D.Ill.1987); In re Unimet Corp., 74 B.R. 156 (Bkrtcy.N.D. Ohio 1987); In re Keller & Katkowsky, P.C., 55 B.R. 155 (Bkrtcy.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bkrtcy.N.D. Tex.1985), aff'd, Bkrtcy.L.Rep. (CCH) Para. 71,273 (N.D.Tex. June 24, 1986) [Available on WESTLAW, 1986 WL 9801]; REDACTED Another avenue which courts have used to allow an elevated standing for interest is by interpreting section 507(a)(7)(G) to include premiums for the use of money. This section provides for priority status for “a penalty related to a claim ... and in compensation for actual pecuniary loss.” The actual pecuniary loss to a taxing entity for nonpayment of past due taxes is the opportunity cost of not using the money for the period of nonperformance. This is the precisely the loss which the penalty of interest is intended to compensate. In re New England Carpet Co., 26 B.R. 934, 936-37 (Bkrtcy.Vt.1983). Moreover, pre-pe-tition interest is, by its very nature, a penalty which is compensatory and not punitive in nature. In re Reich, | [
{
"docid": "18792898",
"title": "",
"text": "status: it was last due more than three years prior to the debtors’ petition; and was assessed in 1979, well beyond 240 days of the petition. See In re Coleman American Moving Services, Inc., 20 B.R. 267 (Bankr.D.Kan.1981). We conclude that no priority status exists for the debtors’ 1978 tax indebtedness and hence no full deferred payments need to be made on the 1978 unsecured tax claim in the amount of $2,043. On the other hand, because the taxes due for the years 1980, 1981, and 1982 do not fall within the 507(a)(7)(A) exception to priority payment status they must be considered a priority claim. The second portion of Claim No. 2, pertaining to the penalties due on the 1980, 1981 and 1982 taxes, fails to qualify for priority status. Section 507(a)(7)(G) provides the appropriate allowance only for “a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss.” 11 U.S.C. § 507(a)(7)(G).. The plain meaning of the language of section 507(a)(7)(G) is that if a penalty is assessed as part of a claim, it receives no priority treatment unless assessed as a measure of the government’s actual pecuniary loss. The penalty assessed by the IRS presents a situation analogous to one addressed by a Vermont Bankruptcy Court in the case of In re New England Carpet Company, 26 B.R. 934 (Bankr.D.Vt.1983). In New England Carpet, the City of Winooski had assessed interest and penalty charges in addition to the debtor’s delinquent real estate taxes. The Vermont Court held that: it is questionable that a compensatory role should be assigned to these penalties in light of the fact that interest is additionally charged. The pecuniary loss to the City of Winooksi is the loss of the use of the tax money. This is precisely the kind of loss the interest is supposed to compensate. Therefore, without the submission of evidence by the City of Winooski to show that the penalties are not punitive, the penalties are not entitled to priority. Id. at 936-37. Inasmuch as the IRS has assessed interest and"
}
]
| [
{
"docid": "18799071",
"title": "",
"text": "Taxes Taxes incurred by a debtor prior to the filing of a petition in bankruptcy are afforded priority status pursuant to section 507(a)(7) of the Bankruptcy Code. Specifi-..... cally enumerated under this provision is priority for penalties related to tax claims under section 507(a)(7) and which are in compensation for actual pecuniary loss. Again, section 507(a)(7) is silent with respect to the priority of interest on such tax deficiencies. As with post-petition arrear-ages, the debtor argues that there is no justification for granting such priority status to interest on this indebtedness. In support of its position, Patco cites Razorback Ready-Mix Concrete Co. v. United States (In re Razorback Ready Mix Concrete Co.), 45 B.R. 917 (Bkrtcy.E.D.Ark. 1984). Razorback examined the legislative history of section 507(a)(7) and observed that the unenacted Senate version originally contained a provision for interest but was deleted deliberately in the final bill. Id. at 924. This, the court held, signalled Congress’ intention not to allow the interest priority status along with the underlying taxes. This argument was firmly rebutted in United States v. H.G.D. & J. Mining Co. (In re H.G.D. & J. Mining Co.), 74 B.R. 122 (S.D.W.Va.1986), which found no evidence in the Bankruptcy Code or in the legislative history that Congress intended to treat interest on a tax claim differently than the claim itself. Other courts have generally adhered to this reasoning in granting a priority to interest on pre-petition taxes. E.g., In re EEI Energy, Inc., 75 B.R. 637 (Bkrtcy.N.D.Ill.1987); In re Unimet Corp., 74 B.R. 156 (Bkrtcy.N.D. Ohio 1987); In re Keller & Katkowsky, P.C., 55 B.R. 155 (Bkrtcy.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bkrtcy.N.D. Tex.1985), aff'd, Bkrtcy.L.Rep. (CCH) Para. 71,273 (N.D.Tex. June 24, 1986) [Available on WESTLAW, 1986 WL 9801]; In re Healis, 49 B.R. 939 (Bkrtcy.M.D.Pa.1985). Another avenue which courts have used to allow an elevated standing for interest is by interpreting section 507(a)(7)(G) to include premiums for the use of money. This section provides for priority status for “a penalty related to a claim ... and in compensation for actual pecuniary loss.” The actual pecuniary loss to"
},
{
"docid": "4645355",
"title": "",
"text": "in Craner v. Marine Midland Bank, N.A. (In re Byron and Barbara Craner), 110 B.R. 111, 119-20 (Bankr.N.D. N.Y.1988), held that interest on withholding and sales taxes is properly includable as part of the pre-petition tax itself for priority purposes under Code § 507(a)(7)(G) because “[t]he penalty of interest is compensation for the actual monetary loss sustained by a taxing entity for the money’s unavailability during the nonpayment period.” Id. See also In re Patco Photo Corp., 82 B.R. 192, 196 (Bankr.E.D.N.Y.1988); However, where both interest and penalties are assessed, the latter, punitive by nature, should not enjoy priority since it is not for actual pecuniary loss within the meaning of Code § 507(a)(7)(G) and would, in essence, amount to a “double dip.” See In re New England, Carpet Co., Inc., 26 B.R. 934, 936 (Bankr.Vt.1983). The Court can only reach the same conclusion with regard to property taxes. Thus, the Court does not believe that the five percent penalty totalling $219.78 for all seven parcels is properly includable in Oneida County’s priority claim for 1986 property taxes and relegates that amount to the general unsecured status of Class 8. Advertising costs reflected at $20.00 per parcel per year, although not technically a \"“penalty,” would appear to compensate the taxing authority for actual pecuniary loss. Thus, they should be given priority status as long as they were incurred pre-petition in connection with the 1986 tax. See Fla-tau v. Jackson (In re Hirsch-Franklin, Enterprises, Inc.), 63 B.R. 864, 874 (Bankr. M.D.Ga.1986). The Court, therefore, will allow priority status to the County’s claim to the extent of $4,996.96 and unsecured non-priority status to the extent of $6,331.90. Based upon the foregoing it is, ORDERED that the pre-petition tax liens of Rome and Oneida County were extinguished by virtue of the confirmation of Debtors’ Plan on October 21, 1988, and it is further ORDERED that Rome’s claim of $6,988.24, including Oneida County’s 1987 taxes, shall be allowed as a priority claim and paid in full in accordance with Class 1 of Debtors’ Plan, and it is further ORDERED that Oneida County’s claim shall"
},
{
"docid": "2619274",
"title": "",
"text": "that the interest is supposed to compensate.” In re New England Carpet Co., 26 B.R. 934, 936 (Bankr.Vt.1983). In a more recent case, a Texas judge, discussing the legislative history, went further, stating, [i]n light of the introductory remarks and the statutory language which gives sixth priority status to a penalty related to one of the priority taxes listed which compensates for actual pecuniary loss, interest would appear to be a pecuniary loss penalty within the meaning of § 507(a)(6)(G).” In re Palmer, 53 B.R. 545, 549 (Bankr.N.D.Texas 1985). The court in Matter of Keller & Katkowsky, P.C., 55 B.R. 155, 156 (Bankr.E.D.Mich.S.D.1985), found the government is similar to any other creditor. In return for deferring full payment on the debt and it [sic] loss of investment opportunity, the government assesses an interest rate to make up for the return it would have made if money was paid in full when due. That court went on to hold that the allowance of interest indicates that Congress intended to compensate the government for the delay. Id., citing Owens v. Commissioner of Internal Revenue Service, 125 F.2d 210 (10th Cir.1942), cert. denied, 316 U.S. 704, 62 S.Ct. 1308, 86 L.Ed. 1772, rehearing denied, 317 U.S. 704, 63 S.Ct. 24, 87 L.Ed. 562 (1942). This Court, too, believes that pre-pe-tition interest constitutes a penalty which is not punitive in nature, but is intended to compensate the United States for its inabil ity to use the money it is owed. Indeed, the term “interest” means “the compensation allowed by law or fixed by the parties for the use of forbearance or detention of money.” Black’s Law Dictionary 950 (revised 4th ed. 1968). Therefore, that portion of the I.R.S.’ claim which represents pre-pe-tition interest has priority under 11 U.S.C. § 507(a)(7)(G), and is non-dischargeable pursuant to 11 U.S.C. § 523(a)(1)(A). B. Post-Petition Interest The remaining question is whether post-petition interest may be enforced as a continuing non-dischargeable obligation against the debtors. This determination requires comparison of pre-1978 law with the law developed under the present Bankruptcy Code. In a case under the Bankruptcy Act, the"
},
{
"docid": "11106823",
"title": "",
"text": "kind set forth in section 507(a)(6). The determinative question is whether the interest is a pecuniary loss penalty or a punitive penalty. As the court in In re New England Carpet Co. noted, in situations in which penalties and interest are assessed by a taxing entity, it is questionable that a compensatory role can be assigned to both the penalties and interest. 26 B.R. at 936, 10 Bankr.Ct.Dec. at 229, 8 Collier Bankr.Cas.2d at 333. The pecuniary loss to the taxing entity is the loss of the use of the tax money which is precisely the kind of loss that interest is supposed to compensate. 26 B.R. at 936-37, 10 Bankr.Ct.Dec. at 229, 8 Collier Bankr.Cas.2d at 333. See also In re Keller & Katkowsky, 55 B.R. at 157. Based upon this reasoning, the court in In re New England Carpet Co. concluded that interest assessments satisfied all of the requirements of section 507(a)(6)(G), including the compensatory requirement, and that the claim for interest should be accorded priority status under that section. The court further concluded that the penalty assessments did not satisfy all of the requirements of section 507(a)(6)(G) because the taxing entity failed to show that the penalty was not punitive, and therefore the claim for penalties was not accorded priority under section 507(a)(6)(G). 26 B.R. at 936-37, 10 Bankr.Ct.Dec. at 229, 8 Collier Bankr.Cas.2d at 333. See also In re Hernando Appliances, Inc., 41 B.R. at 25. Accordingly, the Court concludes that the claim for interest in the sum of $53.51 is entitled to priority along with the underlying section 507(a)(6) taxes because the interest is a pecuniary loss penalty related to a tax claim under section 507(a)(6). See In re Keller & Katkowsky, 55 B.R. at 157; In re Palmer, 53 B.R. at 549. Accord In re Treister, 52 B.R. at 737, 13 Collier Bankr.Cas.2d at 535-36; In re Hernando Appliances, Inc., 41 B.R. at 25. The Court also concludes that the claim for costs in the sum of $19.46 is a pecuniary loss penalty and is related to the section 507(a)(6) tax claim and entitled"
},
{
"docid": "11106822",
"title": "",
"text": "of distribution and priority status because the statutory language in section 507(a)(6)(G) does not expressly include interest. See In re Razorback Ready-Mix Concrete Co., 45 B.R. at 924, 12 Bankr.Ct.Dec. at 360, 12 Collier Bankr.Cas.2d at 231; In re Ayala, 35 B.R. at 655, 11 Bankr.Ct.Dec. at 373. This Court is persuaded that the express language of the statute itself resolves the issue. To determine whether interest is entitled to priority under section 507(a)(6)(G), the statutory language expressly requires first, the claim to be a “penalty,” secondly, the claim to be compensation for pecuniary loss, not a punitive penalty, and thirdly, the claim to be related to a tax allowed under section 507(a)(6). See In re Ayala, 35 B.R. at 655, 11 Bankr.Ct.Dec. at 373. If a tax penally is punitive in nature, the Bankruptcy Code provides that it be given subordinated treatment under section 726(a)(4). 11 U.S.C.A. § 726(a)(4) (West 1979). The Court finds that the interest assessed during this period is a type of “penalty” and is related to a claim of a kind set forth in section 507(a)(6). The determinative question is whether the interest is a pecuniary loss penalty or a punitive penalty. As the court in In re New England Carpet Co. noted, in situations in which penalties and interest are assessed by a taxing entity, it is questionable that a compensatory role can be assigned to both the penalties and interest. 26 B.R. at 936, 10 Bankr.Ct.Dec. at 229, 8 Collier Bankr.Cas.2d at 333. The pecuniary loss to the taxing entity is the loss of the use of the tax money which is precisely the kind of loss that interest is supposed to compensate. 26 B.R. at 936-37, 10 Bankr.Ct.Dec. at 229, 8 Collier Bankr.Cas.2d at 333. See also In re Keller & Katkowsky, 55 B.R. at 157. Based upon this reasoning, the court in In re New England Carpet Co. concluded that interest assessments satisfied all of the requirements of section 507(a)(6)(G), including the compensatory requirement, and that the claim for interest should be accorded priority status under that section. The court further"
},
{
"docid": "20922307",
"title": "",
"text": "split of authority on the question. The clear majority of courts hold that interest is entitled to the same priority as the tax if it is compensatory in nature. See, In re Hirsch-Franklin Enterprises, Inc., 63 B.R. 864 (Bankr.M.D.Ga.1986); In re Reich, 66 B.R. 554 (Bankr.D.Colo.1986); In re Keller and Katkowsky, P. C., 55 B.R. 155 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bankr.N.D.Tex.1985), aff’d Bankr.L.Rep. (CCH) para. 71,273 (N.D.Tex.1986); In re Treister, 52 B.R. 735 (Bankr.S.D.N.Y.1985); In re Hernando Appliances, Inc., 41 B.R. 24 (Bankr.N.D.Miss.1983); In re New England Carpet Company, 26 B.R. 934 (Bankr.D.Vt.1983). A minority holds to the contrary. See, In re Razorback Ready-Mix Concrete Company, 45 B.R. 917 (Bankr.E.D.Ark.1983); In re Ayala, 35 B.R. 651 (Bankr.D.Utah 1983). Both sides of the controversy rely upon the legislative history of the Bankruptcy Code to support their views. At one time the Senate version of Section 507 expressly provided that pre-petition interest was to be afforded the same status as the underlying tax claim. See, Senate Report No. 989, 95th Cong.2d Sess. 20, U.S.Code Cong, and Admin. News 5787, 5806 (1978). However, that provision was deleted. The majority of courts reason that the deletion was because the language was unnecessary in light of the fact that a “claim” includes the right to payment of interest under Section 101(4). The minority justifies its position by stressing the obvious fact that the provision was expressly omitted.. After a review of the relevant case law and legislative history, the court concludes that pre-petition interest on tax claims is entitled to priority if it fits within the scope of Section 507(a)(7)(G) which gives priority to: a penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss. Three requirements must thus be met to qualify for priority status: (1) the claim must be a penalty; (2) the claim must be compensation for pecuniary loss; and (3) the claim must be related to a tax allowed under Section 507(a)(7). The court finds that the interest assessed is a penalty, See, In re Palmer, supra at 548-549,"
},
{
"docid": "12375743",
"title": "",
"text": "for which a return, if required, is last due, including extensions, after three years before the date of the filing of the petition; (ii) assessed within 240 days, plus any time plus 30 days during which an offer in compromise with respect to such tax that was made within 240 days after such assessment was pending, before the date of the filing of the petition; or (iii) other than a tax of a kind specified in section 523(a)(1)(B) or 523(a)(1)(C) of this title, not assessed before, but assessable, under applicable law or by agreement, after, the commencement of the case ... (G) A penalty related to a claim of a kind specified in this paragraph and in compensation for actual pecuniary loss. The vast majority of courts dealing with the issue have held that interest on taxes accorded priority status under section 507(a)(7) is properly granted priority status as well. In re Reich, 66 B.R. 554, 557 (Bankr.D.Colo.1986); In re Keller & Katkowsky, 55 B.R. 155, 156-157 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. 545, 549 (Bankr.N.D.Tex.1985); In re Treister, 52 B.R. 735, 737 (Bankr.S.D.N.Y.1985); In re Coleman American Companies, Inc., 26 B.R. 825 (Bankr.D.Kan.1983); contra, In re Razorback Ready Mix Concrete Co., 45 B.R. 917 (Bankr.E.D.Ark.1984). The courts have used two lines of reasoning in reaching this conclusion. Some courts have noted that the legislative history of section 507(a)(7) indicates that the section’s reference to “allowed secured claims of governmental units” encompasses pre-petition interest. Thus, the interest is entitled to priority under section 507(a)(7)(A). The Treister court noted: Section 507(a)(6) accords priority to certain “allowed unsecured claims of governmental units.” (Emphasis added). The term “claim” is broadly defined in section 101(4) to include the “right to payment” and thus in this context is read to include interest. The legislative history of another section which discusses “claim” is supportive. Originally, the Senate included a provision in section 726 which expressly provided that the term “claim” should include interest. The House deleted that provision stating that it was unnecessary “since a right to payment for the interest due is a right to"
},
{
"docid": "3415857",
"title": "",
"text": "MEMORANDUM OPINION AND ORDER FREDERICK J. HERTZ, Bankruptcy Judge. This cause was heard upon the motion of the trustee for EEI Energy, Inc., to deny priority status to pre-petition interest on pre-petition federal and state taxes. For the reasons set forth below, this motion is denied. EEI filed for bankruptcy under Chapter 11 on February 18, 1983. This case was subsequently converted to Chapter 7 on April 24, 1983. Both the Internal Revenue Service and the State of Illinois filed claims seeking priority status under 11 U.S.C. § 507(a)(6), now (a)(7), for pre-petition taxes plus interest on those taxes. The sole issue before this court is whether the interest is entitled to priority status. § 507(a) provides priority status for “allowed unsecured claims of governmental units.” Specifically enumerated under this provision are taxes, § 507(a)(7)(A), and penalties, § 507(a)(7)(G). The trustee contends that this provision’s silence with respect to interest on taxes evinces an intent by Congress to deny priority status to interest. Both the I.R.S. and the State of Illinois argue that interest is included in the broad definition of the term “claim,” and thus is entitled to priority. While this issue has not been considered in this jurisdiction, the majority of courts in other jurisdictions have granted priority status to interest on pre-petition tax claims. Matter of Unimet Corporation, 74 B.R. 156 (Bankr.N.D.Oh.1987); United States of America v. H.G.D. & J. Mining Co. (In re H.G.D. & J. Mining Co.), 74 B.R. 122 (S.D.W.Vir.1986); In re Hirsch-Franklin Enterprises, Inc., 63 B.R. 864 (Bankr.M.D.Ga.1986); In re Reich, 66 B.R. 554 (Bankr.D.Colo.1986); In re Keller and Katkowsky, P.C., 55 B.R. 155 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bankr.N.D.Tex.1985), aff’d Bankr.L.Rep. (CCH) 11 71, 273 (N.D.Tex.1986); In re Treister, 52 B.R. 735 (Bankr.S.D.N.Y.1985); In re Hernando Appliances, Inc., 41 B.R. 24 (Bankr.N.D.Miss.1983); and In re New England Carpet Company, 26 B.R. 934 (Bankr.D.Vt.1983). But see, In re Razorback Ready-Mix Concrete Company, 45 B.R. 917 (Bankr.E.D.Ark.1984); and In re Ayala, 35 B.R. 651 (Bankr.D.Utah 1983). In United States v. Friendship College, Inc., (In re Friendship College, Inc), 737 F.2d 430 (4th"
},
{
"docid": "13897436",
"title": "",
"text": "“claim” means a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” This broad definition of a “claim” as a “right to payment” has been read to include interest. See, e.g., In re Brinegar, 76 B.R. 176, 178 (Bankr.Colo. 1987); In re Young, 70 B.R. 43, 45 (Bankr. S.D.Ind.1987); In re Treister, 52 B.R. 735, 737 (Bankr.S.D.N.Y.1985). This is consistent with the language of Section 502 of the Bankruptcy Code, which governs what is to be allowed as part of a creditor’s claim in bankruptcy proceedings: (b) ... [T]he court ... shall determine the amount of such claim ... as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (2) such claim is for unmatured interest. ... 11 U.S.C. § 502 (emphasis added); see In re Pharmadyne Laboratories, Inc., 53 B.R. 517, 522 (Bankr.N.J.1985). Pre-petition (or matured) interest has therefore been treated as part of the “claim,” accorded the same priority status as the underlying liability, and found nondischargeable where the underlying liability is nondischargeable. See, e.g., Brinegar, 76 B.R. at 178-79; Young, 70 B.R. at 45; In re EEI Energy, Inc., 75 B.R. 637, 638-39 (Bankr.N.D.Ill. 1987); In re Mikrut, 79 B.R. 404, 408-09 (W.D.Wisc.1987); In re H.G.D. & J. Mining Co., 74 B.R. 122, 125 (Bankr.S.D.W.Va. 1986), aff'd by unpublished opinion, 836 F.2d 546 (4th Cir.1987); Treister, 52 B.R. at 737; In re Keller & Katkowsky, P.C., 55 B.R. 155, 157 (Bankr.E.D.Mich.1985); Pharmadyne, 53 B.R. at 522; In re Healis, 49 B.R. 939, 942 (Bankr.M.D.Pa.1985). Here it is uncontested that the underlying tax liability is nondischargeable. The pre-petition interest is thus similarly non-dischargeable. VII. Conclusion For the foregoing reasons, we find no merit in any of the appellants’ arguments. The judgment of the district court, affirming the bankruptcy court, is in all respects AFFIRMED. . The agreement between Roger Larson and Pharmaco also entitled Larson to a 5% royalty on all revenues obtained by Pharmaco from sales of the"
},
{
"docid": "11106819",
"title": "",
"text": "Chapter 7 conversion, is entitled to priority under section 507(a)(6). The Court now must determine to what priority Defendant's claim for penalties, interest, and costs is entitled. Section 507(a)(6)(G) confers priority status to a penalty related to a tax claim under section 507(a)(6) if the penalty is in compensation for actual pecuniary loss. 11 U.S.C.A. § 507(a)(6)(G) (West 1979). As noted by Senator Dennis DeConcini in the Congressional Record: For purposes of the above priority rules, the House amendment adopts the provision of the Senate bill that any tax liability which, under otherwise applicable tax law, is collectible in the form of a “penalty,” is to be treated in the same manner as a tax liability. In bankruptcy terminology, such tax liabilities are referred to as pecuniary loss penalties. Thus, any tax liability which under ... State or local tax law is payable as a “penalty,” ... will be entitled to the priority which the liability would receive if it were expressly labeled as a “tax” under the applicable tax law. However, a tax penalty which is punitive in nature is given subordinated treatment under section 726(a)(4). 1978 U.S. Code & Cong. Admin. News 5787, 6505, 6567-68 (emphasis added). See also In re Palmer, 53 B.R. 545, 548 (Bankr.N.D.Tex.1985); In re Ayala, 35 B.R. 651, 655,11 Bankr.Ct.Dec. 371, 373 (Bankr.Utah 1983); 3 Collier on Bankruptcy 11507.-04[7][h] (15th ed. 1986). The Court notes that there has been a split among the courts on the issue of whether interest on a tax claim under section 507(a)(6) is to be accorded priority along with the section 507(a)(6) tax claim. Some courts allow claims for interest to be accorded the same priority as the underlying tax when the interest appears to be assessed against the debtor’s property solely for compensatory purposes. See In re Keller & Katkowsky, 55 B.R. 155, 157 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. at 546-49; In re Treister, 52 B.R. 735, 737, 13 Collier Bankr.Cas.2d 534, 535-36 (Bankr.S.D.N.Y.1985); In re Hernando Appliances, Inc., 41 B.R. 24, 25 (Bankr.N.D.Miss.1983). Those courts granting interest the same priority as the underlying tax justify"
},
{
"docid": "1071218",
"title": "",
"text": "balance. 26 U.S.C. § 6601(a). The interest is required to be paid upon notice and demand, and assessed, collected, and paid in the same manner as taxes. Any reference in Title 26 to any tax imposed under Title 26 is deemed to refer to interest imposed by the section of such tax. 26 U.S.C. § 6601(e)(1) ... ... The Tax Code also makes it clear that interest is inherent in the filing of a federal tax lien and is to receive priority treatment. Section 6321 of Title 26 provides: If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interests, additional amount, addition to tax, or assessible penalty, together with costs that may accrue in addition thereto) shall be a lien in the favor of the United States upon all property and rights to property, whether real or personal, belonging to such person. 26 U.S.C. § 6321. ‘The recorded notice does not give notice that the federal tax lien is limited to only the amount stated in the notice; rather it puts any interested person on inquiry to discover the true extent and nature of the incumberance.’ Peterson v. United States, 511 F.Supp. 250, 256 (D.Utah, C.D.1981). (Emphasis original). The words ‘interest, penalty, additional amount, or addition to such tax’ provide a strong indication of the legislative intent to grant a lien in excess of the actual amount of the tax. In re: Parchem, 166 F.Supp. 724, 726 (D.Minn.1958). Id. at 156, 157. Other courts have concluded that pre-pe-tition interest is entitled to priority under 11 U.S.C. § 507(a)(7)(G). In re Palmer, 53 B.R. 545, 549 (Bankr.N.D.Tex.1985), aff'd [1985-1986 Transfer Binder] BANKR.L.REP. (CCH) ¶ 71,273 (Bankr.N.D.Tex. June 24, 1986) [Available on WESTLAW, 1986 WL 9801]. In re Reich, 66 B.R. 554, 556 (Bankr.D.Colo.1986). The weight of authority supports the conclusion that pre-petition interest on tax claims is entitled to the same priority status as the underlying claim. See also In re Frost, 19 B.R. 804 (Bankr.D.Kan.1982), rev’d on other grounds, 47 B.R. 961 (D.Kan.1985); In re Coleman American Moving"
},
{
"docid": "3415858",
"title": "",
"text": "included in the broad definition of the term “claim,” and thus is entitled to priority. While this issue has not been considered in this jurisdiction, the majority of courts in other jurisdictions have granted priority status to interest on pre-petition tax claims. Matter of Unimet Corporation, 74 B.R. 156 (Bankr.N.D.Oh.1987); United States of America v. H.G.D. & J. Mining Co. (In re H.G.D. & J. Mining Co.), 74 B.R. 122 (S.D.W.Vir.1986); In re Hirsch-Franklin Enterprises, Inc., 63 B.R. 864 (Bankr.M.D.Ga.1986); In re Reich, 66 B.R. 554 (Bankr.D.Colo.1986); In re Keller and Katkowsky, P.C., 55 B.R. 155 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bankr.N.D.Tex.1985), aff’d Bankr.L.Rep. (CCH) 11 71, 273 (N.D.Tex.1986); In re Treister, 52 B.R. 735 (Bankr.S.D.N.Y.1985); In re Hernando Appliances, Inc., 41 B.R. 24 (Bankr.N.D.Miss.1983); and In re New England Carpet Company, 26 B.R. 934 (Bankr.D.Vt.1983). But see, In re Razorback Ready-Mix Concrete Company, 45 B.R. 917 (Bankr.E.D.Ark.1984); and In re Ayala, 35 B.R. 651 (Bankr.D.Utah 1983). In United States v. Friendship College, Inc., (In re Friendship College, Inc), 737 F.2d 430 (4th Cir.1984), the Fourth Circuit Court of Appeals considered an analogous issue. In that case, the court ruled that post-petition tax claims and penalties should be treated as an administrative expense under § 503(b)(l)(B)(i). A related issue concerned the priority treatment of interest on the tax claims. The trustee argued the interest should not be given the same priority status as the underlying tax claim because it was not specifically included in § 503, as were taxes and penalties. The court rejected this argument, holding that interest was entitled to the same priority as the tax claim itself. The District Court for the Southern District of West Virginia, in the case of In re H.G.D. & J. Mining Co., supra, applied the Friendship College holding to conclude that, pursuant to § 507(a)(7), pre-petition interest on pre-petition taxes should also be given the same priority as the underlying tax claim. The court stated: The final version of § 507(a)[7] did not provide for the priority treatment of interest on a tax claim even though the Senate bill"
},
{
"docid": "18799072",
"title": "",
"text": "States v. H.G.D. & J. Mining Co. (In re H.G.D. & J. Mining Co.), 74 B.R. 122 (S.D.W.Va.1986), which found no evidence in the Bankruptcy Code or in the legislative history that Congress intended to treat interest on a tax claim differently than the claim itself. Other courts have generally adhered to this reasoning in granting a priority to interest on pre-petition taxes. E.g., In re EEI Energy, Inc., 75 B.R. 637 (Bkrtcy.N.D.Ill.1987); In re Unimet Corp., 74 B.R. 156 (Bkrtcy.N.D. Ohio 1987); In re Keller & Katkowsky, P.C., 55 B.R. 155 (Bkrtcy.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bkrtcy.N.D. Tex.1985), aff'd, Bkrtcy.L.Rep. (CCH) Para. 71,273 (N.D.Tex. June 24, 1986) [Available on WESTLAW, 1986 WL 9801]; In re Healis, 49 B.R. 939 (Bkrtcy.M.D.Pa.1985). Another avenue which courts have used to allow an elevated standing for interest is by interpreting section 507(a)(7)(G) to include premiums for the use of money. This section provides for priority status for “a penalty related to a claim ... and in compensation for actual pecuniary loss.” The actual pecuniary loss to a taxing entity for nonpayment of past due taxes is the opportunity cost of not using the money for the period of nonperformance. This is the precisely the loss which the penalty of interest is intended to compensate. In re New England Carpet Co., 26 B.R. 934, 936-37 (Bkrtcy.Vt.1983). Moreover, pre-pe-tition interest is, by its very nature, a penalty which is compensatory and not punitive in nature. In re Reich, 66 B.R. 554, 556-57 (Bkrtcy.Colo.1986). This is a very persuasive argument and one which this court lends great credence. In the case at bar, Pateo further seeks to reclassify, as general unsecured claims, the penalties and fines related to the pre-petition tax claims assessed by the federal and state taxing authorities. As shown, section 507(a)(7)(G) requires that for priority status to be conferred, a tax penalty must be compensatory and not punitive in nature. It is common to view fines and penalties assessed on tax deficiencies with a presumption they are punitive and the governmental unit needs to show otherwise to rebut the presumption. See"
},
{
"docid": "2619273",
"title": "",
"text": "broad definition of a “claim” as a “right to payment” contained in 11 U.S.C. § 101(4). However, this Court cannot agree that pre-petition interest therefore does not have priority along with the rest of the tax claim. Even if the mere fact that interest is part of a claim does not bring it within the priority provisions of § 507, such interest constitutes a penalty within the meaning of § 507(a)(7)(G), and therefore must be accorded priority. The Razorback court noted: “A claim for a tax penalty may be given priority only to the extent that the penalty is in compensation for an actual pecuniary loss incurred by a governmental taxing authority.” Razorback, supra, at 922; see also, In re Hernando Appliances, Inc., 41 B.R. 24, 25 (Bankr.N.D.Miss.1983). In holding that tax penalties should not be given a compensatory role if interest is also charged, the Vermont Bankruptcy Court explained: “The pecuniary loss to the City of Winooski is the loss of the use of the tax money. This is precisely the kind of loss that the interest is supposed to compensate.” In re New England Carpet Co., 26 B.R. 934, 936 (Bankr.Vt.1983). In a more recent case, a Texas judge, discussing the legislative history, went further, stating, [i]n light of the introductory remarks and the statutory language which gives sixth priority status to a penalty related to one of the priority taxes listed which compensates for actual pecuniary loss, interest would appear to be a pecuniary loss penalty within the meaning of § 507(a)(6)(G).” In re Palmer, 53 B.R. 545, 549 (Bankr.N.D.Texas 1985). The court in Matter of Keller & Katkowsky, P.C., 55 B.R. 155, 156 (Bankr.E.D.Mich.S.D.1985), found the government is similar to any other creditor. In return for deferring full payment on the debt and it [sic] loss of investment opportunity, the government assesses an interest rate to make up for the return it would have made if money was paid in full when due. That court went on to hold that the allowance of interest indicates that Congress intended to compensate the government for the delay. Id.,"
},
{
"docid": "20922306",
"title": "",
"text": "The government argues that any cost incurred by the debtor in connection with the creation or development of the software does not qualify as research and experimental cost under Section 174 of the Internal Revenue Code and should have been deducted pursuant to Section 162 of the Code. In either event, the government asserts that any previously taken deduction will result in a recapture tax after the sale. The record is totally devoid of any reference to an amount of claimed tax liability, the amount of deductions taken, and the years in dispute with respect to this issue. Without any demonstration by the government as to the nature and amount of its claim, the court finds that the government has not established its prima facie case and accordingly the debtor’s objections must be sustained. E. PRE-PETITION INTEREST The final issue before the court is whether the pre-petition interest accrued on the tax liabilities is to be given priority status along with the underlying tax claim under Section 507(a)(7) of the Bankruptcy Code. There is a split of authority on the question. The clear majority of courts hold that interest is entitled to the same priority as the tax if it is compensatory in nature. See, In re Hirsch-Franklin Enterprises, Inc., 63 B.R. 864 (Bankr.M.D.Ga.1986); In re Reich, 66 B.R. 554 (Bankr.D.Colo.1986); In re Keller and Katkowsky, P. C., 55 B.R. 155 (Bankr.E.D.Mich.1985); In re Palmer, 53 B.R. 545 (Bankr.N.D.Tex.1985), aff’d Bankr.L.Rep. (CCH) para. 71,273 (N.D.Tex.1986); In re Treister, 52 B.R. 735 (Bankr.S.D.N.Y.1985); In re Hernando Appliances, Inc., 41 B.R. 24 (Bankr.N.D.Miss.1983); In re New England Carpet Company, 26 B.R. 934 (Bankr.D.Vt.1983). A minority holds to the contrary. See, In re Razorback Ready-Mix Concrete Company, 45 B.R. 917 (Bankr.E.D.Ark.1983); In re Ayala, 35 B.R. 651 (Bankr.D.Utah 1983). Both sides of the controversy rely upon the legislative history of the Bankruptcy Code to support their views. At one time the Senate version of Section 507 expressly provided that pre-petition interest was to be afforded the same status as the underlying tax claim. See, Senate Report No. 989, 95th Cong.2d Sess. 20, U.S.Code"
},
{
"docid": "18799073",
"title": "",
"text": "a taxing entity for nonpayment of past due taxes is the opportunity cost of not using the money for the period of nonperformance. This is the precisely the loss which the penalty of interest is intended to compensate. In re New England Carpet Co., 26 B.R. 934, 936-37 (Bkrtcy.Vt.1983). Moreover, pre-pe-tition interest is, by its very nature, a penalty which is compensatory and not punitive in nature. In re Reich, 66 B.R. 554, 556-57 (Bkrtcy.Colo.1986). This is a very persuasive argument and one which this court lends great credence. In the case at bar, Pateo further seeks to reclassify, as general unsecured claims, the penalties and fines related to the pre-petition tax claims assessed by the federal and state taxing authorities. As shown, section 507(a)(7)(G) requires that for priority status to be conferred, a tax penalty must be compensatory and not punitive in nature. It is common to view fines and penalties assessed on tax deficiencies with a presumption they are punitive and the governmental unit needs to show otherwise to rebut the presumption. See Hirsch-Franklin, 63 B.R. at 874. In the instant case, neither the IRS nor the agencies of the State of New York have rebutted this presumption and it must therefore be concluded that the penalties are punitive rather than compensatory. In fact, the IRS concedes this point in its letter to the court dated September 21, 1987. Furthermore, there is precedence for the assertion that in situations in which penal ties and interest are both assessed, a compensatory rule should not be assigned to both. Hirsch-Franklin, 63 B.R. at 873; New England Carpet, 26 B.R. at 936. Since this court holds that interest on the pre-petition tax claims in this instance is for compensation for the government’s pecuniary losses, the court must also conclude that penalties on those claims are punitive and may be reclassified as general unsecured debts for the purposes of Pat-co’s plan of reorganization. Based on the foregoing, this court finds and concludes as follows: 1. The debtor’s application to reclassify portions of the post-petition administrative tax claims which constitute interest and penalties"
},
{
"docid": "23553789",
"title": "",
"text": "before the filing of the petition. The certified certificates of assessment show that the obligations for the years 1982, 1983, and 1984 arose from income taxes for which a return was due within the three year period before the filing of the petition on March 12, 1986. The return for the 1982 tax year was due April 15, 1983; the return for the year 1983 was due April 15, 1984; and the return for 1984 was due April 15, 1985. As a result, the tax obligations for those years, including interest, are Section 507(a)(7) priority taxes and, as such, are excluded from the discharge by virtue of Section 523(a)(1)(A). United States v. H.G.D. & J. Mining Company, Inc. (In re H.G.D. & J. Mining Co., Inc.), 74 B.R. 122, 124 (S.D.W.Va.1986), aff'd, 836 F.2d 546 (4th Cir.1987); In re Standard Johnson Co., 90 B.R. 41, 42 (Bankr.E.D.N.Y.1988). The Millsaps remain personally liable for the taxes, including interest, for the years 1982, 1983, and 1984. As to this, the Service is entitled to summary judgment in its favor as a matter of law. (c) Tax penalties for years 1982-1984. The certificates of assessment reflect that the Millsaps were assessed penalties for filing frivolous returns for the years 1982 through 1984. There is no evidence in this record that any of the penalties assessed compensated the Service for actual pecuniary loss such that these penalties would be excepted from the discharge pursuant to Section 507(a)(7)(G) and Section 523(a)(1)(A). Standard Johnson Co., supra at 44; In re Jackson, 80 B.R. 213, 215 (Bankr.D.Colo.1987); In re New England Carpet Co., Inc., 26 B.R. 934, 936 (Bankr.D.Vt.1983). In fact, the Service has conceded that the penalties assessed against the Millsaps for the years 1983 and 1984 have been discharged. The same is true of any penalties assessed for 1982. As to this, therefore, the Millsaps are entitled to a judgment declaring that the penalties assessed for the years 1982 through 1984 have been discharged. 2. Did the actions taken by the Service in selling the debtors’ home violate Section 524(a)(2) or the automatic stay? In"
},
{
"docid": "18506970",
"title": "",
"text": "have materially altered section 507(a)(7)(G), the statute still should provide priority for pre-petition interest on tax claims. In the absence of contradictory statutory language or legislative history, the fact that the Senate unsuccessfully suggested a provision explicitly enunciating the priority does not change the meaning of section 507(a)(7)(G). Additionally, the insertion of the word “only” in section 507(a)(7) in 1984 does not exclude the interest, which still should be considered a pecuniary loss penalty under section 507(a)(7)(G). IV. Virtually every court that has considered the issue in dispute in this case has held that pre-petition interest shares equal priority with the underlying tax debt, although the various courts have based their decisions upon differing rationales. Because we decide that pre-petition interest on tax liability, as a pecuniary loss penalty, is entitled to the same priority as the underlying tax, we need not consider the alternative grounds for holdings of other courts. E.g., In re Larson, 862 F.2d 112, 118 (7th Cir.1988) (interest is part of the underlying tax “claim,” so it is accorded the same priority). Jones points to no statutory language, precedential authority, or indication of legislative intent that would disturb our conclusion. The judgment of the district court, affirming the bankruptcy court, therefore is AFFIRMED. . See, e.g., In re Larson, 862 F.2d 112 (7th Cir.1988); In re H.G.D. & J. Mining Co., 836 F.2d 546 (4th Cir.1987) (per curiam) (unpublished); In re Keller & Katkowsky, P.C., 55 B.R. 155 (Bankr.E.D.Mich.1985); In re Treister, 52 B.R. 735 (Bankr.S.D.N.Y.1985); In re Healis, 49 B.R. 939 (Bankr.M.D.Pa.1985). . The legislative history behind the provision in question is discussed in greater length by both Palmer courts. 88 B.R. at 102-03; 53 B.R. at 546-49. . See United States v. Ron Pair Enters., 489 U.S. 235, 245, 109 S.Ct. 1026, 1032, 103 L.Ed.2d 290 (1989) (where statutory language is open to interpretation, a \"court must determine whether Congress has expressed an intent to change the interpretation of a judicially created concept in enacting the [Bankruptcy] Code” ); Kelly v. Robinson, 479 U.S. 36, 47, 107 S.Ct. 353, 359, 93 L.Ed.2d 216 (1986)"
},
{
"docid": "1071219",
"title": "",
"text": "amount stated in the notice; rather it puts any interested person on inquiry to discover the true extent and nature of the incumberance.’ Peterson v. United States, 511 F.Supp. 250, 256 (D.Utah, C.D.1981). (Emphasis original). The words ‘interest, penalty, additional amount, or addition to such tax’ provide a strong indication of the legislative intent to grant a lien in excess of the actual amount of the tax. In re: Parchem, 166 F.Supp. 724, 726 (D.Minn.1958). Id. at 156, 157. Other courts have concluded that pre-pe-tition interest is entitled to priority under 11 U.S.C. § 507(a)(7)(G). In re Palmer, 53 B.R. 545, 549 (Bankr.N.D.Tex.1985), aff'd [1985-1986 Transfer Binder] BANKR.L.REP. (CCH) ¶ 71,273 (Bankr.N.D.Tex. June 24, 1986) [Available on WESTLAW, 1986 WL 9801]. In re Reich, 66 B.R. 554, 556 (Bankr.D.Colo.1986). The weight of authority supports the conclusion that pre-petition interest on tax claims is entitled to the same priority status as the underlying claim. See also In re Frost, 19 B.R. 804 (Bankr.D.Kan.1982), rev’d on other grounds, 47 B.R. 961 (D.Kan.1985); In re Coleman American Moving Services, Inc., 26 B.R. 825 (Bankr.D.Kan.1983); In re Hernando Appliances, Inc., 41 B.R. 24 (Bankr.N.D.Miss.1983). ORDER The court having this day entered its memorandum decision in the above-styled matter, IT IS HEREBY ORDERED that Robert A. Mikrut’s objection to the allowance of the secured claim of the Internal Revenue Service is denied. IT IS FURTHER ORDERED that the IRS has a secured claim for $4,350.00, a priority claim for $6,503.46, and a general unsecured claim for $3,808.16. Mikrut’s plan must be modified within fifteen days to provide for the full satisfaction of the IRS’ secured and priority claims. Failure to so modify will result in automatic dismissal of his bankruptcy case."
},
{
"docid": "4645354",
"title": "",
"text": "petition date. “Assessed” under this statute has been construed to mean the date on which the tax liability arises. See Richardson v. First Federal Savings and Loan Ass’n (In re Stroud Wholesale, Inc.), 37 B.R. 735, 741 (Bankr. E.D.N.C.1984), rev’d. on other grounds, 47 B.R. 999 (E.D.N.C.1985). Debtors contend that the pertinent date herein is April 1, 1986 for purposes of priority status under Code § 507(a)(7)(B) and the County does not dispute that date. Thus, the Debtors conclude that only the 1986 property taxes due Oneida County are properly entitled to priority status and classify the 1985 taxes as non-priority unsecured. Claiming payment is due Rome, not the County, for the County’s 1987 taxes, they exclude these taxes from the County computation to avoid double payment since according the 1987 County taxes priority status as part of Rome’s claim. Again, Oneida County does not appear to contest the Debtors’ conclusion. The Court, however, parts ways with both the Debtors and the County as to the treatment of interest, penalties and advertising expenses. This Court in Craner v. Marine Midland Bank, N.A. (In re Byron and Barbara Craner), 110 B.R. 111, 119-20 (Bankr.N.D. N.Y.1988), held that interest on withholding and sales taxes is properly includable as part of the pre-petition tax itself for priority purposes under Code § 507(a)(7)(G) because “[t]he penalty of interest is compensation for the actual monetary loss sustained by a taxing entity for the money’s unavailability during the nonpayment period.” Id. See also In re Patco Photo Corp., 82 B.R. 192, 196 (Bankr.E.D.N.Y.1988); However, where both interest and penalties are assessed, the latter, punitive by nature, should not enjoy priority since it is not for actual pecuniary loss within the meaning of Code § 507(a)(7)(G) and would, in essence, amount to a “double dip.” See In re New England, Carpet Co., Inc., 26 B.R. 934, 936 (Bankr.Vt.1983). The Court can only reach the same conclusion with regard to property taxes. Thus, the Court does not believe that the five percent penalty totalling $219.78 for all seven parcels is properly includable in Oneida County’s priority claim for"
}
]
|
734804 | "infra pp. 35-36; see also Boulanger, 444 F.3d at 88 (""[W]e see no prejudice beyond the type of 'standard fare [that exists] whenever counts involving discrete incidents are linked in a single indictment. We have repeatedly held that such a garden variety side effect, without more, is insufficient to require severance.’ "") (second alteration in original) (citation omitted). . Proceeding in this fashion here does not compromise the concerns underlying the prohibition against duplicitous indictments. The primary ""vice of duplicity is that a jury may find [a] defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense,” United States v. Huguenin, 950 F.2d 23, 26 (1st Cir.1991) (per curiam) (describing holding in REDACTED see also Verrecchia, 196 F.3d at 297, which in turn may prejudice a later double jeopardy defense, United States v. Morse, 785 F.2d 771, 774 (9th Cir.1986). Here, however, the fact that the jury returned guilty verdicts on all wire fraud counts assures that Trainor was deemed responsible for the conduct surrounding both mortgages. Appellant also had ample ""notice of the nature and cause of the proceedings against him[ ] so that he [could] effectively prepare a defense.” Huguenin, 950 F.2d at 26 (citing 8 Moore’s Federal Practice ¶ 8.03[1]). Similar concerns underlie the variance doctrine, reinforcing the notion that we need not separately discuss appellant's duplicity claim. See infra at 36 & note 21. . Additional questions must be" | [
{
"docid": "3551200",
"title": "",
"text": "requirement and also handed him a warning written in Arabic detailing the requirement. Serhan denied having more than $10,000, eventually telling the inspectors he carried $6,000. A search of his clothing revealed $10,135. II. Rule 8(a) Appellants first argue that the district court should have dismissed the indictment because it was “defective on its face.” The claimed defect is that the indictment is duplicitous and in violation of Fed.R.Crim. P. 8(a) because it charges two separate offenses in a single count; one against each of the defendants. See United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.), cert. denied, 454 U.S. 875, 102 S.Ct. 351, 70 L.Ed.2d 183 (1981). The familiar rule prohibiting duplicitous pleading that was addressed in Robinson is that an indictment may not join in a single count two or more distinct and separate offenses. United States v. Ellis, 595 F.2d 154 (3d Cir.1979). The vice of duplicity is that a jury may find a defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense. United States v. UCO Oil, 546 F.2d 833 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). We reject the defendants’ Rule 8(a) argument for two reasons. First, as Robinson and UCO Oil make clear, the rule prohibiting duplicitous pleading in a criminal case is designed to preclude a jury from convicting a defendant under a single count indictment which charges more than one offense without agreeing, unanimously, on the defendant’s guilt of the same offense. That could not have occurred in this case because here the single count indictment grouped defendants rather than multiple offenses against a single defendant. Second, case law firmly establishes that the propriety of joinder of multiple defendants in an indictment is tested under Rule 8(b), not under Rule 8(a). United States v. Franks, 511 F.2d 25 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (1975); United States v. Jackson, 562 F.2d 789 (D.C.Cir.1977); 1 C.W. Wright, Federal Practice and Procedure, § 144, at 494 (2d ed. 1982)."
}
]
| [
{
"docid": "21447845",
"title": "",
"text": "Morse, 785 F.2d 771, 774 (9th Cir.1986) (holding that an indictment alleging involvement in a mail-fraud scheme comprised of four different investment programs could “fairly be read to charge but a single scheme and [was] therefore not duplicitous”). Even if we assumed that Count 1 of Singer’s indictment was duplicitous, however, duplicity is only reversible if it prejudices the defendant. See Olmeda, 461 F.3d at 281 (“Duplicitous pleading ... is not presumptively invalid.”). Singer argues that the duplicity of Count 1 prejudices him because it hinders his ability to plead a defense under the Double Jeopardy Clause of the Fifth Amendment if the government pursues additional mail-fraud charges against him for the arsons referenced in Count 1. Additionally, he argues that the evidence at trial demonstrated the impermissibly wide scope of the conduct alleged in Count 1, as confirmed by the fact that the jury acquitted him of certain arsons referenced in the count. We reject Singer’s arguments. As an initial matter, we note that the proof at trial is irrelevant to the question of whether an indictment is duplicitous. See United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir.1988) (“Our task is solely to assess whether the indictment can be read to charge only one violation in each count.”). Moreover, it is unclear how the government could initiate any future prosecution based on the conduct set forth in Count 1 without violating the Double Jeopardy Clause. In any event, we have no difficulty concluding that Count 1 of the indictment acceptably charged Singer with a single scheme to defraud that included multiple mailings. See United States v. Robinson, 294 Fed.Appx. 630, 632 (2d Cir. 2008) (“It does not follow ... from the difference of the identity of the recipients ... in, and the time elapsed between, the earlier and later charged offense conduct, that [the defendant] was not engaged in a single continuing scheme.”); see also United States v. Damrah, 412 F.3d 618, 622 (6th Cir.2005) (“It is not duplicitous to allege in one count that multiple means have been used to commit a single offense.”). And it"
},
{
"docid": "15714207",
"title": "",
"text": "the Indictment Baez’s second argument, that Count II (the possession count) of the superseding indictment was duplicitous, requires little discussion. Baez never objected to Count II for duplicity, or any other grounds, in the district court. He accordingly has waived his argument. See Fed.R.Crim.P. 12(b)(2) (defenses and objections based on defects in the indictment (other than that it fails to show jurisdiction in the court or to charge an offense) must be raised prior to trial); see also United States v. Sheehy, 541 F.2d 123, 130 (1st Cir.1976). Even were we to reach the merits of Baez’s duplicity argument, we would reject it as based upon a misapprehension of the concept of duplicity. Baez’s problem with Count II does not lie in the wording of the count; it lies in the fact that the evidence underlying the count allegedly could have given rise to three separate counts charging possession. This is not duplicity. A count is duplicitous when it charges more than one offense in a single count. United States v. Huguenin, 950 F.2d 23, 25 (1st Cir.1991) (per curiam). Although other factors are involved, the prohibition against duplicitous indictments arises primarily out of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense. See id. at 26. Obviously, this only becomes a problem when the indictment actually charges two or more offenses in a single count. Here, Count II of the indictment charged only one offense: “That on or about July 21, 1993, in the District of Rhode. Island, the defendants, DOMINGO BAEZ and MARIA VALERIO, did knowingly, willfully and intentionally possess with intent to distribute a mixture and substance containing a detectable amount of cocaine, a Schedule II.Controlled Substance.” The question whether the actions to which this count referred could have been charged as separate crimes is irrelevant. The count was not duplicitous. Accordingly, we reject Baez’s argument that there was a duplicitous count in his indictment. III. Valerio’s Appeal Valerio’s sole appellate argument is that the evidence adduced at trial was"
},
{
"docid": "1756799",
"title": "",
"text": "a silver gun in a white glove and Oxyeontin pills of the same dosage as those stolen from the pharmacy in Boulanger’s apartment. See United States v. Stackpole, 811 F.2d 689, 694 (1st Cir.1987) (rejecting the defendant’s severance argument and noting that “[w]ere the counts severed, substantially the same evidence would have been admitted in both resulting trials”). Further, “the district court instructed the jury that each count charged a separate offense and that each had to be considered separately, without allowing the verdict on one count to affect the verdict on any other count. These instructions minimized any possible prejudice from the joinder.” Melendez, 301 F.3d at 36 (internal citation and quotation marks omitted). In sum, we see no prejudice beyond the type of “standard fare [that exists] whenever counts involving discrete incidents are linked in a single indictment. We have repeatedly held that such a garden variety side effect, without more, is insufficient to require severance.” Taylor, 54 F.3d at 974. We therefore hold the district court did not abuse its considerable discretion in denying the motion to sever. C. Rule 29 Motion Boulanger’s final argument is that the district court erred in denying his motion for judgment of acquittal made under Rule 29 of the Federal Rules of Criminal Procedure. Our review is de novo. United States v. O’Shea, 426 F.3d 475, 479 (1st Cir.2005). Under this standard, which we have described as formidable, “we must decide, viewing the evidence in the light most favorable to the verdict of guilt, whether a reasonable factfinder could find the defendant guilty of the crime beyond a reasonable doubt.” Id. Further, in our review, “ ‘no premium is placed upon direct as opposed to circumstantial evidence; both types of proof can adequately ground a conviction.’ ” United States v. Hernández, 218 F.3d 58, 64 (1st Cir.2000) (quoting United States v. Ortiz, 966 F.2d 707, 711 (1st Cir.1992)). Regarding Count I, Boulanger begins by arguing that, according to Lebel and Baron’s original description following the robbery, the robber was around 5' tall and in his early twenties, whereas Boulanger is 5'7\""
},
{
"docid": "267663",
"title": "",
"text": "the defendant and thus found the exculpatory evidence to be pale in comparison. It is reasonable to conclude that Bush had the necessary criminal intent from the totality of his actions. II. THE INDICTMENT WAS NOT PREJUDICIALLY DUPLICITOUS. Defendant Bush argues that each of the mail fraud counts in the indictment was duplicitous and is therefore fatally defective; that the critical prejudice to Bush here is that the jury members could have had divided views as to Bush’s scheme and not been unanimous in determining that he was guilty of any single offense yet combined their views to convict on mail fraud. Thus, concludes Bush, “the resulting conviction . is very possibly an amalgam of views and based not on any one ‘scheme’ but on a compromise verdict of a number of separate schemes.” In our view there is enough evidence in the record to support a verdict on all counts. Furthermore, we think that the jury was properly instructed so that they would not compromise their judgment and verdict. Furthermore, Bush’s attack against the indictment on grounds of duplicity is misdirected. As we stated previously in United States v. Tanner, 471 F.2d 128, 139 (7th Cir. 1972), citing 8 J. Moore, Federal Practice II 8.03[1] at 8-6 and 7 (2nd ed. 1970): “The prohibition against duplicity is designed to protect a defendant’s right under the sixth amendment to notice of the ‘nature and cause of the accusation’ against him so that he may prepare a defense, and to guard against the possibility that ‘confusion as to the basis of the verdict may subject the defendant to double jeopardy in the event of a subsequent prosecution.’ ” In this case the indictment was quite specific. By clearly identifying the nature of Bush’s scheme, its objects and the various means used to effectuate the scheme, the indictment gave Bush sufficient notice of the charge against him. Each of the eleven counts of the indictment charges only one offense — a mailing in furtherance of one multifaceted scheme in violation of the mail fraud statute. Bush’s argument that the instant indictment charges"
},
{
"docid": "17147506",
"title": "",
"text": "respect to income taxes because he had no income tax liability for the preceding year and he anticipated no income tax liability for the current year. The other two counts are virtually identical to count one except for some of the allegations about dates and the amounts of money involved. Pointing to Sansone v. United States, 380 U.S. 343, 354, 85 S.Ct. 1004, 1011, 13 L.Ed.2d 882 (1965), Huguenin contends that his indictment is duplicitous because it contains allegations that could be interpreted to charge him with both evasion-of-payment and evasion-of-assessment. We see no merit to this contention, since we can, as we recently did with respect to a similar indictment in United States v. Waldeck, 909 F.2d 555, 558 (1st Cir.1990), characterize Huguenin’s indictment as one in which the elements of evasion-of-payment are “overborne” by the “clear and unequivocal” evasion-of-assessment charges. No matter how one resolves the semantic question, moreover, it is beyond reasonable dispute that the indictment charged Huguenin with a single, cognizable crime, and that the jury convicted him of the same crime. See United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990). This case therefore raises none of the concerns underlying the prohibition against duplicitous indictments. See United States v. Saleh, 875 F.2d 535, 537 (6th Cir.1989) (vice of duplicity is that a jury may find defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense). See also 8 Moore’s Federal Practice if 8.03[1] (other concerns underlying prohibition against duplicity include protection of defendant’s right to notice of the nature and cause of the proceedings against him, so that he may effectively prepare a defense). 2. Competency On October 13, 1989 the district court held a hearing on Huguenin’s appeal of a magistrate’s denial of his motion to vacate the arraignment order. At the hearing, Huguenin refused to acknowledge his presence or to identify himself, and challenged the court’s jurisdiction over him and his case. After denying the appeal as frivolous, the court noted for the record that it had “serious doubts as to [Huguenin’s] competency to"
},
{
"docid": "13864941",
"title": "",
"text": "under 18 U.S.C. § 3282. See, e.g., United States v. Rastelli, 870 F.2d 822, 839 (2d Cir.), cert. denied, - U.S. -, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). 2. Duplicity Rule 8(a), F.R.Cr.P., provides for the joinder of offenses in the same indictment, “in a separate count for each offense.” As the Court of Appeals has explained: Important policy considerations underlie the rule that two or more distinct crimes should not be alleged in a single count of an indictment. If an indictment is duplicitous, a general verdict of guilty will not reveal whether the jury found defendant guilty of only one crime and not the other, or guilty of both. Moreover, a guilty verdict on a duplicitous indictment does not indicate whether the jury found defendant guilty without having reached an unanimous verdict on the commission of a particular offense. Thus, the prohibition of duplicity is said to implicate a defendant’s rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in subsequent prosecution. United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980) (citations omitted). However, a single count of an indictment is not necessarily duplicitous in violation of Rule 8(a) whenever it contains several allegations that could have been charged as separate offenses. United States v. Margiotta, 646 F.2d 729, 733 (2d Cir.1981). The doctrine of duplicity should be invoked only when an indictment implicates the underlying policy considerations of Rule 8(a). Id. at 732-33; Murray, supra, 618 F.2d at 896. Counts Two through Five, assessed in view of these policy considerations, present some danger of infringement on McGuinness’s rights. Dismissal of the counts is unwarranted, however, because this possibility can be avoided. First, instructions to the jury can be tailored and the jury can be provided with a special verdict form in order to meet McGuinness’s concerns about a unanimous jury verdict. Second, with respect to McGuinness’s rights to adequate notice of the charges against him and to protection against double jeopardy, the government shall be required to furnish a bill of particulars listing"
},
{
"docid": "14560342",
"title": "",
"text": "charge and will not be reversed unless the charge fails accurately to reflect the law.’ ” United States v. Busacca, 863 F.2d 433, 435 (6th Cir.1988) (per curiam) (citation omitted). Accordingly, we review the trial court’s jury instruction for an abuse of discretion. Id. Raising a mixed question of law and fact, we review de novo the district court’s application of U.S.S.G. § 2A2.2. A. Duplicitous indictments implicate the protections of the Sixth Amendment guarantee of jury unanimity. An indictment is duplicitous if “it joins in a single count two or more distinct and separate offenses.” United States v. Robinson, 651 F.2d 1188, 1194 (6th Cir.1981). “The vice of duplicity is that a jury may find a defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense.\" Id. (citation omitted); see also United States v. Washington, 127 F.3d 510, 513 (6th Cir.1997). By collapsing separate offenses into a single count, duplicitous indictments thereby prevent the jury from convicting on one offense and acquitting on another. See id. Duplicitous charges, however, are not necessarily fatal to an indictment. See Robinson, 651 F.2d at 1194. A defendant may move, as did Hood, to require the government to \"elect either the count or the charge within the count upon which it will rely,\" or the court may \"particulariz[e] the distinct offense charged in each count\" in its jury instruction. Id. Moreover, a specific unanimity instruction is generally not required unless: \"1) a count is extremely complex; 2) there is variance between the indictment and the proof at trial; or 3) there is a tangible risk of jury confusion.\" United States v. Sanderson, 966 F.2d 184, 187 (6th Cir.1992). Additionally, a single act of assault against multiple officers constitutes one offense, and therefore does not implicate Six±h Amendment prohibitions on duplicity. See Ladner v. United States, 358 U.S. 169, 176, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958) (holding, under the predecessor of § 111, that two federal officers wounded by a single shot constituted a single assault); United States v. Beckner, 983 F.2d 1380, 1386 n."
},
{
"docid": "13864940",
"title": "",
"text": "1139, 107 L.Ed.2d 1044 (1990). The holding in Cohen, supra, 384 F.2d at 700, does not bar the government from proceeding against McGuinness on such aggregated charges. In that case, the Second Circuit held that the government is not limited to one count against the defendant when several payments in violation of the Act have been made pursuant to a single agreement. Nothing in Cohen dictates that a defendant must be charged with a separate offense for each particular alleged payment simply because he may be so charged. In fact, aggregation of separate payments otherwise prohibited by the Act has been held to be proper, where, as here, there was an alleged scheme or mechanism under which recurring bribes were made. United States v. Papia, 910 F.2d 1357, 1364-65 (7th Cir.1990). While each of Counts Two through Five encompasses payments that were allegedly made outside the statute of limitations period, each charges McGuinness with having continued to commit a substantive offense into the limitations period. Each of Counts Two through Five is therefore timely charged under 18 U.S.C. § 3282. See, e.g., United States v. Rastelli, 870 F.2d 822, 839 (2d Cir.), cert. denied, - U.S. -, 110 S.Ct. 515, 107 L.Ed.2d 516 (1989). 2. Duplicity Rule 8(a), F.R.Cr.P., provides for the joinder of offenses in the same indictment, “in a separate count for each offense.” As the Court of Appeals has explained: Important policy considerations underlie the rule that two or more distinct crimes should not be alleged in a single count of an indictment. If an indictment is duplicitous, a general verdict of guilty will not reveal whether the jury found defendant guilty of only one crime and not the other, or guilty of both. Moreover, a guilty verdict on a duplicitous indictment does not indicate whether the jury found defendant guilty without having reached an unanimous verdict on the commission of a particular offense. Thus, the prohibition of duplicity is said to implicate a defendant’s rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in"
},
{
"docid": "5558156",
"title": "",
"text": "offense in a single count. United States v. Rizzo, 121 F.3d 794 (1st Cir.1997) (citing United States v. Huguenin, 950 F.2d 23, 25 (1st Cir.1991)). “The vice of duplicity is that there is no way in which the jury can convict on one offense and acquit on another offense contained in the same count.” 1A Charles A. Wright, Federal PRACTICE and Procedure, § 142 at 16 (1999). Therefore, a general guilty verdict on a duplicitous indictment could result in improper sentencing, preclude appellate review or violate the Double Jeopardy Clause of the Fifth Amendment. Id. (citations omitted). On the other hand, an indictment is multiplicitous when it charges a single offense in more than one count. United States v. Brandon, 17 F.3d 409, 422 (1st Cir.1994) (United States v. Serino, 835 F.2d 924, 930 (1st Cir.1987)). Thus, a multiplicitous indictment can result in a double jeopardy violation when a defendant is sentenced more than once for the same offense or when the jury is misled to believe that the defendant has committed more crimes than the record and evidence maintain. United States v. Goldberg, 913 F.Supp. 629, 631 (D.Mass.1996) (citing Wright, § 142 at 475-76 (1982)). The core issue in determining when a count or counts is duplicitous or multiplicitous is whether one offense or separate offenses are included in the indictment. This is not a facile or straightforward task. Nevertheless, we are “bound by it.” United States v. Fraza, 106 F.3d 1050, 1054 (1st Cir.1997); Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (stating that “For over half a century we have determined whether a defendant has been punished twice for the ‘same offense’ by applying the rule set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).”). The relevant inquiry is whether Congress intended the same conduct to be punishable under two distinct criminal statutes. Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). Enunciated in Blockburger, the test “requires that courts examine the offenses to ascertain"
},
{
"docid": "7804324",
"title": "",
"text": "described in that count of the indictment. Towards the end of the charge to the jury, the court instructed the jury that “to render a verdict, all 12 of you must agree. That is, your verdict must be unanimous.” Verrecchia claims on appeal that the district court erred in failing to instruct the jurors that they had to agree unanimously on at least one particular weapon that he possessed out of the two listed in Count One and out of the twenty-one listed in Count Two. Because he did not object to the unanimity instructions given before the jury began its deliberations, we review for plain error. See United States v. Bradstreet, 135 F.3d 46, 50 (1st Cir.1998), cert. denied, — U.S. —, 118 S.Ct. 1805, 140 L.Ed.2d 944 (1998). Verrecchia raises two related arguments for requiring jury unanimity on the specific weapons he possessed. He argues first that Counts One and Two each charged more than one crime — i.e., that they were duplicitous — and that a specific unanimity instruction was required to cure that duplicity. He also argues that if each count charged only one crime, and hence was not duplicitous, the possession of a particular weapon is still an element of the crime on which the jury must be unanimous. A. Duplicity and “the allowable unit of prosecution” “Duplicity is the joining in a single count of two or more distinct and separate offenses.” United States v. Martinez Canas, 595 F.2d 73, 78 (1st Cir.1979). “[T]he prohibition against duplicitous indictments arises primarily out of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense.” United States v. Valerio, 48 F.3d 58, 63 (1st Cir.1995). Although an argument that an indictment should be dismissed as duplicitous is waived if not made before trial, see id.; Fed.R.Crim.P. 12(b)(2), a defendant is still entitled on request to an instruction requiring jury unanimity on which offense (of the two or more alleged in the duplicitous count) he committed, see United States v. Puerta, 38"
},
{
"docid": "1756798",
"title": "",
"text": "firearm on him. A subsequent indictment contained counts for the robberies and a count for possession of the weapon. The Fifth Circuit found that the weapons count should have been severed. The court emphasized that “there is no indication that a connection exists between his possession of the weapon and the alleged robbery conspiracy.” Id. at 310. The court also noted that there was nothing indicating he “had used the weapon in a robbery, or that the weapon was in any way connected to the charged robberies or to any robbery.” Id. The instant case presents a different situation, as it was the government’s theory that the drugs Boulanger was found with were those that he stole, and that the silver gun found in the apartment was the same silver gun used in the robbery. We also note that, even if the counts had been severed and tried separately, similar evidence would have been used. For example, in a trial solely on Counts I and II, the government could have presented evidence that they found a silver gun in a white glove and Oxyeontin pills of the same dosage as those stolen from the pharmacy in Boulanger’s apartment. See United States v. Stackpole, 811 F.2d 689, 694 (1st Cir.1987) (rejecting the defendant’s severance argument and noting that “[w]ere the counts severed, substantially the same evidence would have been admitted in both resulting trials”). Further, “the district court instructed the jury that each count charged a separate offense and that each had to be considered separately, without allowing the verdict on one count to affect the verdict on any other count. These instructions minimized any possible prejudice from the joinder.” Melendez, 301 F.3d at 36 (internal citation and quotation marks omitted). In sum, we see no prejudice beyond the type of “standard fare [that exists] whenever counts involving discrete incidents are linked in a single indictment. We have repeatedly held that such a garden variety side effect, without more, is insufficient to require severance.” Taylor, 54 F.3d at 974. We therefore hold the district court did not abuse its considerable discretion"
},
{
"docid": "7804325",
"title": "",
"text": "cure that duplicity. He also argues that if each count charged only one crime, and hence was not duplicitous, the possession of a particular weapon is still an element of the crime on which the jury must be unanimous. A. Duplicity and “the allowable unit of prosecution” “Duplicity is the joining in a single count of two or more distinct and separate offenses.” United States v. Martinez Canas, 595 F.2d 73, 78 (1st Cir.1979). “[T]he prohibition against duplicitous indictments arises primarily out of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense.” United States v. Valerio, 48 F.3d 58, 63 (1st Cir.1995). Although an argument that an indictment should be dismissed as duplicitous is waived if not made before trial, see id.; Fed.R.Crim.P. 12(b)(2), a defendant is still entitled on request to an instruction requiring jury unanimity on which offense (of the two or more alleged in the duplicitous count) he committed, see United States v. Puerta, 38 F.3d 34, 40 (1st Cir.1994). Verrecchia made no such request in this case. He argues nevertheless that it was plain error to fail to give such an instruction, contending that the possession of each firearm is a separate violation of § 922(g)(1) that should be charged in a separate count of the indictment. Verrecchia’s argument raises the question, addressed by the Supreme Court in the leading case of Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), of “[w]hat Congress has made the allowable unit of prosecution under a statute which does not explicitly give the answer.” Id. at 81, 75 S.Ct. 620 (citation and internal quotation marks omitted). The defendant in Bell had been convicted of two violations of the Mann Act, 18 U.S.C. § 2421 (prohibiting the interstate transportation of “any woman or girl” for purposes of prostitution), for transporting two women at the same time. The Court, noting that when Congress chooses to allow multiple prosecutions for a single transaction it has no difficulty expressing its will,"
},
{
"docid": "21447844",
"title": "",
"text": "May 7, 2009. We hold that the count was not duplicitous. In United States v. Robinson, we held that an indictment charging conspiracy to commit wire and mail fraud in the first count, and substantive wire and mail fraud in the second and third counts, was not duplicitous. 651 F.2d 1188, 1194-95 (6th Cir.1981). In doing so, we approved the government’s decision “[t]o avoid unnecessarily complex and confusing allegations and the concomitant prejudice to [the defendant] of charging him with scores of substantive counts arising out of the same scheme” by “particularizing] in one count the different acts that were part of the single scheme.” Id. Our sister circuits have employed similar reasoning. See, e.g., United States v. Olmeda, 461 F.3d 271, 281 (2d Cir.2006) (“[A]cts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme.” (quoting United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir.1989)) (internal quotation marks omitted)); United States v. Morse, 785 F.2d 771, 774 (9th Cir.1986) (holding that an indictment alleging involvement in a mail-fraud scheme comprised of four different investment programs could “fairly be read to charge but a single scheme and [was] therefore not duplicitous”). Even if we assumed that Count 1 of Singer’s indictment was duplicitous, however, duplicity is only reversible if it prejudices the defendant. See Olmeda, 461 F.3d at 281 (“Duplicitous pleading ... is not presumptively invalid.”). Singer argues that the duplicity of Count 1 prejudices him because it hinders his ability to plead a defense under the Double Jeopardy Clause of the Fifth Amendment if the government pursues additional mail-fraud charges against him for the arsons referenced in Count 1. Additionally, he argues that the evidence at trial demonstrated the impermissibly wide scope of the conduct alleged in Count 1, as confirmed by the fact that the jury acquitted him of certain arsons referenced in the count. We reject Singer’s arguments. As an initial matter, we note that the proof at trial is irrelevant to the question of"
},
{
"docid": "17147507",
"title": "",
"text": "crime. See United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990). This case therefore raises none of the concerns underlying the prohibition against duplicitous indictments. See United States v. Saleh, 875 F.2d 535, 537 (6th Cir.1989) (vice of duplicity is that a jury may find defendant guilty on the count without having reached a unanimous verdict on the commission of any particular offense). See also 8 Moore’s Federal Practice if 8.03[1] (other concerns underlying prohibition against duplicity include protection of defendant’s right to notice of the nature and cause of the proceedings against him, so that he may effectively prepare a defense). 2. Competency On October 13, 1989 the district court held a hearing on Huguenin’s appeal of a magistrate’s denial of his motion to vacate the arraignment order. At the hearing, Huguenin refused to acknowledge his presence or to identify himself, and challenged the court’s jurisdiction over him and his case. After denying the appeal as frivolous, the court noted for the record that it had “serious doubts as to [Huguenin’s] competency to represent himself, and also serious doubt as to his full understanding of these charges, the seriousness of these charges, and what is about to occur.” More specifically, the court said: ... I’ve read all the papers and all the filings that have been made by this defendant, and it raises serious doubts in my mind as to the competency of this defendant to stand trial. It seems to me that this defendant is engaged in a process that psychiatrists and psychologists call denial. He is out of touch with reality in this case. He seems to avoid the reality of these charges and these proceedings, and persists in a bizarre form of behavior, rejecting anything that occurs in these proceedings. The district court did not immediately commit Huguenin to a federal facility for examination, but attempted first to arrange an evaluation by a psychiatrist located in Boston. Huguenin, however, showed up at the scheduled examination accompanied by several “witnesses,” and refused to submit to the examination unless his companions were allowed to observe or he"
},
{
"docid": "3229173",
"title": "",
"text": "attempted extortion and completed extortion are separate crimes which had to be indicted in separate counts. The district court disagreed. Duplicity challenges to an indictment are reviewed de novo. See United States v. Kelley, 461 F.3d 817, 830 (6th Cir.2006); United States v. Caldwell, 302 F.3d 399, 407 (5th Cir.2002); United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir.1998); United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir.1989). “Duplicity is the joining in a single count of two or more distinct and separate offenses.” United States v. Verrecchia, 196 F.3d 294, 297 (1st Cir.1999). “The prohibition against duplicitous indictments arises primarily out of a concern that the jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of any particular offense.” United States v. Valerio, 48 F.3d 58, 63 (1st Cir.1995) (citation omitted). The bar against duplicitous indictments is embodied in Fed.R.Crim.P. 8(a), which provides that separate offenses must be charged in separate counts of an indictment. See United States v. Damrah, 412 F.3d 618, 622 (6th Cir.2005); United States v. Buchmeier, 255 F.3d 415, 421 (7th Cir.2001). “[D]etermining whether there is duplicity [in an indictment] ... is [often] a difficult and subtle question.” 1A Charles Alan Wright, Federal Practice & Procedure (Criminal) § 142 (3d ed.1999). The question here is whether an indictment charging a completed and attempted extortion in one count is duplicitous. Ordinarily, it has been thought that attempt is a lesser-included offense of the completed crime and need not be charged at all. See Fed.R.Crim.P. 31(c); United States v. Summit Refrigeration Group, Inc., No. 05-151, 2006 WL 3091115, at *5 (E.D.Wis. Oct.26, 2006) (unpublished disposition) (“[I]f a defendant can be found guilty of attempt even if attempt is not charged, it cannot be duplicitous to charge [attempt and the completed offense] in one count.”); United States v. Stotts, No. 01-1001, 2002 WL 1477214, at *6-*7 (W.D.Tenn. July 2, 2002) (unpublished disposition) (indictment charging attempt to manufacture methamphetamine and completed crime in same count was not duplicitous because attempt was lesser-included offense of completed crime); United States"
},
{
"docid": "6249541",
"title": "",
"text": "(4) the prejudice to the defendant. The delay here was for less than a year. The reason for the delay, that defendant was in the custody of foreign authorities for an non-extraditable offense, was a valid one: The prosecution has no duty to attempt to obtain a defendant under such circumstances. United States v. Hooker, 607 F.2d 286 (9th Cir. 1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1083, 63 L.Ed.2d 321 (1980). Here Saunders neither asserted his right nor showed any prejudice caused by the post-indictment delay. The district court did not err in refusing to dismiss the indictment due to delay. Fifth, Saunders contends that the Mann Act count of the indictment is duplicitous because it alleges several interstate crossings. Duplicity is the joining in a single count of two or more distinct and separate offenses. One vice of duplicity is that a jury may find a defendant guilty on a count without having reached a unanimous verdict on the commission of a particular offense. This may conflict with a defendant’s Sixth Amendment rights and may also prejudice a subsequent double jeopardy defense. Duplicity may also give rise to problems regarding the admissibility of evidence, including its admissibility against one or more codefendants. United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977). However, an indictment is not duplicitous because it charges as one ... offense a single completed transaction instead of charging in separate counts as many offenses as the evidence ... might conceivably sustain. Mellor v. United States, 160 F.2d 757, 762 (8th Cir.), cert. denied, 331 U.S. 848, 67 S.Ct. 1734, 91 L.Ed. 1858 (1947). Two interstate crossings can be joined in one Mann Act count when, as here, there is evidence upon which the jury could conclude that they constituted one trip. United States v. Kennedy, 442 F.2d 444, 445 (10th Cir. 1971). See also United States v. Fruge, 492 F.2d 1163, 1165 (5th Cir.), cert. denied, 419 U.S. 856, 95 S.Ct. 101, 42 L.Ed.2d 88 (1974). Finally, Saunders"
},
{
"docid": "14099432",
"title": "",
"text": "been in possession of the trailer. Defendant testified that the first time he learned that the meat was stolen was when Malik called him from the hospital. On June 8, 2005 the jury returned a verdict of guilty. Defendant was sentenced to eleven months and twenty-nine days incarceration, to be followed by a period of three years of supervised release, and payment of $28,992.98 in restitution. DISCUSSION Defendant first claims that the indictment was duplicitous because it charged him, in a single count, with the allegedly separate offenses of possessing a stolen trailer and possessing the stolen meat within that trailer. “An indictment is duplicitous if it sets forth separate and distinct crimes in one count.” United States v. Davis, 306 F.3d 398, 415 (6th Cir.2002) (citing United States v. Campbell, 279 F.3d 392, 398 (6th Cir.2002)). Whether an indictment is duplicitous is a question of law that this Court reviews de novo. Id. “The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both.” United States v. Duncan, 850 F.2d 1104, 1108 n. 4 (6th Cir.1988). While a duplicative indictment can prejudice a defendant in a variety of ways, the primary concern is that a defendant may be deprived of his right to a unanimous jury verdict. See United States v. Savoires, 430 F.3d 376, 380 (6th Cir.2005); United States v. Shumpert Hood, 210 F.3d 660, 662-63 (6th Cir.2000). That is, a jury might return a guilty verdict on the single count submitted to them without all twelve jurors agreeing that the defendant committed either of the offenses charged within that count. Other adverse effects on a defendant “may include improper notice of the charges against him, prejudice in the shaping of evidentiary rulings, in sentencing, in limiting review on appeal, [and] in exposure to double jeopardy.” Duncan, 850 F.2d at 1108 n. 4. Pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a motion alleging a defect in the indictment must be"
},
{
"docid": "5558155",
"title": "",
"text": "OPINION AND ORDER FUSTE, District Judge. Defendant, Nicholas Peña-González, has been charged with a drug trafficking conspiracy in violation of 21 U.S.C. § 846 (Count I), conspiracy to commit firearms murder in relation to the drug trafficking conspiracy in violation of 18 U.S.C. § 924(o) (Count II), and firearms murder in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(j) (Count III). Defendant, through five separate motions, moves to dismiss (1) Counts I and II of the superseding indictment as multiplicitous; (2) Count II as duplicitous and improperly pled; (3) Count III as duplicitous; (4) Count III as facially void on the grounds of due process; and (5) Count II as void for failure to charge an offense. I. The concepts of duplicity and multiplicity are often conflated and confused. Both are pleading rules -which concern the manner in which charges are joined. Duplicity refers to the joining of two or more separate and distinct offenses into a single count. Therefore, a count is duplicitous when it charges more than one offense in a single count. United States v. Rizzo, 121 F.3d 794 (1st Cir.1997) (citing United States v. Huguenin, 950 F.2d 23, 25 (1st Cir.1991)). “The vice of duplicity is that there is no way in which the jury can convict on one offense and acquit on another offense contained in the same count.” 1A Charles A. Wright, Federal PRACTICE and Procedure, § 142 at 16 (1999). Therefore, a general guilty verdict on a duplicitous indictment could result in improper sentencing, preclude appellate review or violate the Double Jeopardy Clause of the Fifth Amendment. Id. (citations omitted). On the other hand, an indictment is multiplicitous when it charges a single offense in more than one count. United States v. Brandon, 17 F.3d 409, 422 (1st Cir.1994) (United States v. Serino, 835 F.2d 924, 930 (1st Cir.1987)). Thus, a multiplicitous indictment can result in a double jeopardy violation when a defendant is sentenced more than once for the same offense or when the jury is misled to believe that the defendant has committed more crimes than"
},
{
"docid": "6420851",
"title": "",
"text": "wire fraud in connection with a scheme to defraud Laser Arms investors. This duplicitous count of the indictment, defendants assert, must be stricken. “Duplicity consists of charging in the same count of an indictment two or more separate offenses.” 8 J. Moore, Moore’s Federal Practice, If 8.03[1] (2d ed. 1986) (emphasis in original). The prohibition against duplicitous counts protects defendants and enhances the criminal justice system in several respects. The prohibition protects defendants against double jeopardy and ambiguous jury verdicts which could prejudice a defendant at sentencing or on appellate review. The prohibition also protects defendants on evidentiary rulings during trial on proferred evidence which might be admissible for purposes of proving one of the offenses charged in the count but not the other. Furthermore, the prohibition ensures jury verdicts are unanimous with respect to the distinct crimes charged. See United States v. Starks, 515 F.2d 112, 116-17 (3d Cir.1975), aff'd in part, rev’d in part sub nom, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). See also, 8 J. Moore, Moore’s Federal Practice, 118.03[1] (2d ed. 1986). Because count six of this indictment charges the defendants named therein with only one scheme or artifice to defraud, namely the fraudulent effort to obtain the $150,000.00 from the EPC account at the Reliance S & L, the count is not duplicitous. The wire fraud statute prohibits use of the wires to execute “any scheme or artifice to defraud.” These defendants are charged with use of the wires to execute a single scheme to obtain the $150,000.00 from the EPC account. The fact that the single scheme may have more than one victim— i.e., the SEC civil proceeding and Laser Arms investors — does not alter the fact only one scheme is charged. See United States v. Morse, 785 F.2d 771, 774 (9th Cir.), cert. denied, — U.S.-, 106 S.Ct. 2925, 91 L.Ed.2d 553 (1986); United States v. Margiotta, 646 F.2d 729, 733 (2d Cir. 1981). Accordingly, the count is not duplicitous and defendants’ motion is denied. 3. Surplusage in Count Five Count five of the"
},
{
"docid": "22570683",
"title": "",
"text": "varying amounts to other conspirators. Early in January 1977, Calamia began cooperating with the Drug Enforcement Administration (DEA), and he was the government’s main witness at trial. II. The Indictment The single count indictment charged appellants with a conspiracy to import and to distribute cocaine and marijuana. Under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. (“the Act”), conspiracy to import controlled substances and conspiracy to distribute such substances are made punishable by separate sections. Compare 21 U.S.C. § 963 (conspiracy to import) with 21 U.S.C. § 846 (conspiracy to distribute). Appellants contend that the indictment in this case therefore charged two separate offenses in the same count and was duplicitous, requiring dismissal of the indictment. See Fed.R. Crim.P. 8(a) (requiring that there be “a separate count for each offense” charged in the indictment); 8 Moore’s Federal Practice 18.03, at 8-6 (2d ed. 1979) (discussing duplicity). Important policy considerations underlie the rule that two or more distinct crimes should not be alleged in a single count of an indictment. If an indictment is duplicitous, a general verdict of guilty will not reveal whether' the jury found defendant guilty of only one crime and not the other, or guilty of both. See Gerberding v. United States, 471 F.2d 55, 59 (8th Cir. 1973). Moreover, a guilty verdict on a duplicitous indictment does not indicate whether the jury found defendant guilty without having reached an unanimous verdict on the commission of a particular offense. Thus, the prohibition of duplicity is said to implicate a defendant’s rights to notice of the charge against him, to a unanimous verdict, to appropriate sentencing and to protection against double jeopardy in a subsequent prosecution. See United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir. 1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977); cf. United States v. Gipson, 553 F.2d 453, 456-59 (5th Cir. 1977); see generally Comment, United States v. Gipson : Duplicity Denies Right to Unanimous Verdict, 1978 Det.C.L. Rev. 319; 8 Moore, supra, at 8-6 to -7. On"
}
]
|
253836 | the papers.” See Visual Sciences, Inc. v. Integrated Communications, Inc., 660 F.2d 56, 58 (2d Cir.1981); Rule 9(a)(1), Local Rules of Civil Procedure (D.Conn.). Both the defendants’ Motion to Dismiss and the Plaintiff's Motion to Sanction Defendants are hereby denied. I. Motion To Dismiss It is well established that the existence of personal jurisdiction over an out-of-state defendant in a diversity case depends upon a two-tiered inquiry. The first tier involves the threshold question whether the federal district court has jurisdiction under the forum state’s law. If it does, the second tier involves the question whether the exercise of personal jurisdiction, allowed by state law, would violate the Due Process Clause of the United States Constitution. See REDACTED a. The statutory basis for jurisdiction Both corporate and individual defendants are named in this action, and jurisdiction over them is governed respectively by Conn.Gen.Stat. §§ 33-411 and 52-59b. It is clear from the Complaint, and even clearer from plaintiff’s Memorandum in Opposition, that this is a tort action and jurisdiction should be considered specifically in light of Conn.Gen.Stat. §§ 33-411(c)(4) and 52-59b(a). The first of these provisions gives personal jurisdiction over foreign corporations in actions arising “out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.” The second, which applies to nonresident individuals, gives jurisdiction over such individuals who commit tor-tious acts within the state, see | [
{
"docid": "5036734",
"title": "",
"text": "RULING ON DEFENDANT’S MOTION TO DISMISS JOSÉ A. CABRANES, District Judge: In this action, a Connecticut corporation alleges the breach of a lease agreement, and invokes, the diversity jurisdiction of this court. The defendant, a Pennsylvania corporation, has moved to dismiss the complaint, arguing that the court lacks personal jurisdiction over it. On issues of this sort, the structure of the court’s inquiry is clear. A federal district court sitting in diversity must look to state law to determine if there is jurisdiction over a foreign corporation. This requires a two-tiered consideration of, first, whether the appropriate state statute reaches the foreign corporation, and, second, whether any such statutory reach exceeds the minimum contacts test required by constitutional due process. See McFaddin v. National Executive Search, Inc., 354 F.Supp. 1166, 1168 (D.Conn.1973) (Newman, J.). The court has carefully reviewed the materials submitted by counsel, including both sets of memoranda, the related affidavits, the cited authorities, and the arguments of counsel at hearings held on August 3, 1981 and September 11, 1981. On the basis of that review, the court concludes that the appropriate state statute, Connecticut General Statutes (“C.G.S.”) § 33 — 411(c)(2), does not reach the defendant in this case. Accordingly, on September 11, 1981, the court orally granted the motion of defendant to dismiss the complaint for lack of personal jurisdiction, pursuant to Rule 12(b)(2), Fed. R.Civ.P. This version of the court’s ruling is issued to supplement the oral ruling of September 11, 1981. In asserting that the relevant state jurisdictional statute reaches this defendant, plaintiff relies “strictly” on C.G.S. § 33-411(c)(2). As plaintiffs counsel put it at oral argument on August 3, 1981, and as he effectively repeated on September 11, 1981, “We do not request the court to go beyond [C.G.S. § 33-411](e)(2).” See Certified Transcript of Proceedings of August 3,1981 (“Tr.”) at 34 (filed August 5, 1981). C.G.S. § 33-411(c)(2) subjects a foreign corporation to suit in the state of Connecticut on any cause of action “arising ... out of any business solicited in this state by mail or otherwise if the corporation has repeatedly"
}
]
| [
{
"docid": "21473322",
"title": "",
"text": "in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance. Conn.Gen.Stat. § 33-411(c). This subsection does require a nexus between the cause of action alleged and conduct of the defendant within the state as specificed in its various clauses. See Schick v. TSR, Inc., Civil No. H-84-975 (D.Conn.) (Ruling on Motion to Dismiss filed Mar. 7, 1985) (Blumenfeld, J.) [Available on WESTLAW, DCT database]. There is no evidence that Standard engaged in any conduct within the state of Connecticut that would bring it within the ambit of section 33-411(c). Rather, its affidavit negates the existence of each of the requisite contacts described in subsection (c). Standard avers , that it has never made contracts with businesses in the state ((c)(1)); that it has never solicited any business in the state, let alone done so repeatedly, ((c)(2)); and that it has never had any expectation that its goods would be used or consumed in the state ((c)(3)). Although the affidavit does not state explicitly that Standard has not engaged in tortious conduct in the state ((c)(4)), the fact that it has never made, sold, or distributed its product in the state leads to the conclusion that the allegations against it in these cases do not arise from tortious conduct in this state. Under the circumstances, then, the Connecticut long-arm statute does not give this court jurisdiction over Standard for the causes of action alleged by the plaintiffs in these cases. Even if the Connecticut statute could be interpreted so as to reach Standard únder these circumstances, it is unlikely that such an exercise of jurisdiction would pass constitutional muster. The Supreme Court has held that due process requires that a defendant cannot be subject to the in personam jurisdiction of the courts of a state unless the defendant has certain “minimum"
},
{
"docid": "810525",
"title": "",
"text": "may be construed as a transaction of business. Acts which might be considered transactions of business — the hiring of Smith and Keay and the development of a business to compete with plaintiff — took place in Florida and not Connecticut. See Data Communication, 514 F.Supp. at 30 (failure of plaintiff to place defendants in New York during negotiations for hiring fatal to jurisdictional claim of transaction of business). Plaintiff’s reliance on Paul’s phone calls from Florida to Smith and Keay in Connecticut is misplaced. These contacts with Connecticut are insufficient to support the exercise of personal jurisdiction. See Breiner Equipment Co. v. Dynaquip, Inc., 539 F.Supp. 204, 206 (E.D. Mo.1982); Bross, 489 F.Supp. at 1371-72. C. The Corporate Defendant As against Florida Bindery, the initial employer of Smith and Keay in Florida, the plaintiff invokes Conn.Gen.Stat. §§ 33-411(b) or 33-411(c)(4) to sustain jurisdiction. Section 33-411(b) provides that “[ejvery foreign corporation which transacts business in this state ... shall be subject to suit in this state upon any cause of action arising out of such business.” Section 33-411(c)(4) authorizes jurisdiction over a foreign corporation, whether or not that corporation is transacting or has transacted business in this State, on any cause of .action arising out of tortious conduct in Connecticut. It is not disputed that Florida Bindery has no contacts whatever with the State of Connecticut; it has no office, no property, no customers, no telephone listing, no bank account, and has never engaged in any business in Connecticut. Therefore, it is clear that plaintiff’s cause of action against Florida Bindery does not fall within the statutory or constitutional parameters of either section 33 — 411(b) or section 33-411(c)(4) of this State’s long-arm statute. See Bross, 489 F.Supp. at 1370-73, and cases cited therein; Lombard Bros., 190 Conn, at 250-257, 460 A.2d 481. Accordingly, the requirements of Connecticut’s long-arm statutes not being satisfied, the defendants’ motion to dismiss is granted. . All of Conn.Gen.Stat. § 52-59b(a) was based on N.Y.C.P.L.R. § 302(a). Gandolfo v. Alford, 31 Conn.Supp. 417, 333 A.2d 65 (Super.Ct. Litchfield Cty.1975)."
},
{
"docid": "5065244",
"title": "",
"text": "corporate defendants) and Conn.Gen. Stat. § 52-59b (as to the individual defendants). The court therefore considers the allegations of the complaint and the facts proved at the hearing held on March 10-11, 1980 in light of those statutory provisions. A. The Corporate Defendants (1) Transacting Business Under Conn. Gen.Stat. § 33-411(b) None of the corporate defendants is alleged to have been authorized to transact business in Connecticut pursuant to Conn. Gen.Stat. §§ 33-395 or 33-396. Bross argues in its brief that they nonetheless transacted business here, in violation of those provisions, and are therefore “subject to suit in this state upon any cause of action arising out of such business.” Conn.Gén. Stat. § 33-411(b). In support of this argument, the plaintiff relies upon: (1) the activities in this state of Romeo R. Cote, as agent for defendants Establishment and FAFC; (2) the activities here of Bross itself, on the theory that Bross’ acts are to be imputed to their co-venturers, defendants Establishment and Emeco, under the law of agency; and (3) international communications between the corporate defendants, located outside of Connecticut, and the plaintiff, located within this jurisdiction. None of these circumstances supports jurisdiction under Conn.Gen.Stat. § 33-411(b). In the first place, the plaintiff has not demonstrated that the causes of action which it asserts arise out of any business transacted here by Mr. Cote. Indeed, Bross has not even alleged that Mr. Cote played any part in the formation or performance of the contracts with which this litigation is concerned, or had anything to do with the tortious acts with which his principals are charged. Although the court finds plausible Bross’ contention that Mr. Cote transacted some business in Connecticut on behalf of the Saudi defendants, it has been afforded no basis to conclude that this lawsuit arises out of any business he conducted here. Nor do the plaintiff’s acts in Connecticut serve as a basis for jurisdiction over defendants who have not otherwise transacted busihess relating to this action in Connecticut. See Glendinning Companies, Inc. v. Codesco, Inc., 3 Conn.L.Trib.No. 40, p. 16 (Super.Ct. Fairfield Cty. July 18,"
},
{
"docid": "5065252",
"title": "",
"text": "defendants are subject to the jurisdiction of this court rests upon a different statutory provision. The “long-arm” statute which Bross invokes as to these defendants provides, in pertinent part: As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident individual, or foreign partnership, or his or its executor or administrator, who in person or through an agent: (1) Transacts any business within the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from such act: or (3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from such act, if he (A) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce Conn.Gen.Stat. § 52-59b(a). (1) Jurisdiction Under Conn.Gen.Stat. §§ 52-59b(a)(l) and (2) Nothing in the record indicates that the individual defendants transacted any business other than through the corporations which they controlled. Accordingly, the court’s conclusion that the plaintiff’s claims against the corporate defendants did not arise out of the transaction by them of any business in Connecticut compels a finding that the same claims against the individual defendants similarly do not confer in personam jurisdiction on this court under Conn.Gen.Stat. § 52-59b(a)(l). Likewise, the court’s determination that the tortious conduct of the corporate defendants oc curred outside of Connecticut leads inexorably to the conclusion that Conn.Gen.Stat. § 52-59b(a)(2) has no application here. (2) Jurisdiction Under Conn.Gen.Stat. § 52-59b(a)(3) A more serious question is presented by Bross’ invocation of Conn.Gen.Stat. § 52-59b(a)(3), for the defendants’ tortious acts, including fraudulent inducement and wrongful interference with Bross’ business although committed in Saudi Arabia, arguably “cause[d] injury to person or property within"
},
{
"docid": "1555364",
"title": "",
"text": "arising out of misfeasance or nonfeasance. Conn.Gen.Stat. Section 33-411(c). In order to assert jurisdiction over a foreign corporation under subsection (c), the court must find a “nexus between the cause of action alleged and [the] conduct of the defendant within the state as specified in its various clauses.” Fuehrer v. Owens-Corning Fiberglas Corp., 673 F.Supp. 1150, 1154 (D.Conn.1986) (Blumenfeld, J.). However, subsection (c) does not specifically require that the corporation ever transact business in Connecticut. Id. B. Second Tier of Inquiry — Constitutional Requirement of “Minimum Contacts’’ The second tier of inquiry is whether Connecticut’s long-arm statute, once reaching a foreign corporation, exceeds the minimum contacts test required for constitutional due process. Under the due process standard a corporation must have “minimum contacts” with the forum state. See World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The contacts must be of a nature where “the traditional notions of fair play and substantial justice” are not offended by requiring a party to defend his case in the forum state. International Shoe Co., 326 U.S. at 316, 66 S.Ct. at 158, quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940). The defendant’s “conduct and connection with the forum State [should be] such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagon, 444 U.S. at 297, 100 S.Ct. at 567. Therefore, the due process requirement will not be satisfied where there is only a mere likelihood that a product will find its way into the forum state. Id. C. Defendant’s Motion to Dismiss for Lack of Jurisdiction Upon the filing of a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), Fed.R.Civ.P., a plaintiff has the burden of proving personal jurisdiction over a defendant, United States v. Montreal Trust Co., 358 F.2d 239, 242 (2d Cir.), cert. denied, 384 U.S. 919, 86 S.Ct. 1366, 16 L.Ed.2d 440 (1966), and must support his allegation of personal"
},
{
"docid": "1555363",
"title": "",
"text": "place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; or (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; or (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance. Conn.Gen.Stat. Section 33-411(c). In order to assert jurisdiction over a foreign corporation under subsection (c), the court must find a “nexus between the cause of action alleged and [the] conduct of the defendant within the state as specified in its various clauses.” Fuehrer v. Owens-Corning Fiberglas Corp., 673 F.Supp. 1150, 1154 (D.Conn.1986) (Blumenfeld, J.). However, subsection (c) does not specifically require that the corporation ever transact business in Connecticut. Id. B. Second Tier of Inquiry — Constitutional Requirement of “Minimum Contacts’’ The second tier of inquiry is whether Connecticut’s long-arm statute, once reaching a foreign corporation, exceeds the minimum contacts test required for constitutional due process. Under the due process standard a corporation must have “minimum contacts” with the forum state. See World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The contacts must be of a nature where “the traditional notions of fair"
},
{
"docid": "1555362",
"title": "",
"text": "over a foreign corporation is well marked. The court must look to state law to determine if there is personal jurisdiction over Bell Asbestos, a foreign corporation. This involves a two-tiered inquiry of (1) whether Connecticut’s long-arm statute reaches Bell Asbestos, and, if so, (2) whether such statutory reach exceeds the “minimum contacts” test required for constitutional due process. See McFaddin v. National Executive Search, Inc., 354 F.Supp. 1166, 1168 (D.Conn.1973) (Newman, J.). A. First Tier of Inquiry — Connecticut’s Statutory Requirements For In Personam Jurisdiction Over A Foreign Corporation The first tier of inquiry is whether a foreign corporation’s conduct within a forum state is sufficient to subject it to legal process according to that forum state’s long-arm statute. In Connecticut, in personam jurisdiction over a foreign corporation cannot be sustained unless the requirements of Connecticut's long-arm statute, Conn.Gen.Stat. Section 33-411, are met. This statute provides, in pertinent part, that [E]very foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; or (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; or (3) out of the production, manufacture or distribution of goods by such corporation with the reasonable expectation that such goods are to be used or consumed in this state and are so used or consumed, regardless of how or where the goods were produced, manufactured, marketed or sold or whether or not through the medium of independent contractors or dealers; or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether"
},
{
"docid": "8029498",
"title": "",
"text": "of due process. The court agrees with Mr. Messina and grants his motion to dismiss. Generally, to determine whether a district court has jurisdiction over a defendant, the court must look to the long-arm statute of the forum state. Savin v. Ranier, 898 F.2d 304 (2d Cir.1990); Mozes on Behalf of General Elec. Co. v. Welch, 638 F.Supp. 215, 223 (D.Conn.1986). The plaintiff has the burden of proof in establishing that a court has personal jurisdiction over a defendant. Id. at 306; Greene v. Sha-NaNa, 637 F.Supp. 591, 594 (D.Conn.1986). The court must make two inquiries before it may properly assert personal jurisdiction over a defendant. First, the court “must determine whether the state’s long-arm statute authorizes the exercise of jurisdiction.” Sha-Na-Na, at 595 (citations omitted). Second, if the court finds that the state’s long-arm statute confers personal jurisdiction, it must determine whether the statute “comports with due process.” Id.; Shaw v. American Cyanamid Co., 534 F.Supp. 527, 529 (D.Conn.1982). The Connecticut long-arm statute, codified at Conn.Gen.Stat. § 52-59b, allows courts to exercise personal jurisdiction over nonresident individuals under four circumstances, only one of which is relied upon by the plaintiff in this case. Specifically, the plaintiff relies upon § 52-59b(a)(3)(B), which provides that courts have personal jurisdiction over an individual who, in person or through an agent, commits a tortious act outside the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he ... (B) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce____ In this case, the plaintiff concedes that the defendant Messina did not commit a tortious act in Connecticut, but asserts that Messina’s tortious acts committed in New York caused the plaintiff harm in Connecticut. Specifically, the plaintiff claims that Mr. Messina’s wrongful delivery of the IBM stock to PaineWebber in October, 1987, caused harm to the plaintiff, a Florida resident, here in Connecticut. The plaintiff’s argument completely misreads this district’s case law on personal jurisdiction."
},
{
"docid": "18923534",
"title": "",
"text": "all via the Internet. (Groman Aff. ¶3). West Stock’s Internet server is in the state of Washington, its Internet service provider is a Washington corporation located in Seattle, Muse’s images are stored and transmitted from the server in Washington, and payment for purchased photos is received from customers by credit card through “Netscape’s Commerce Server” at U.S. Bank in Seattle, Washington. (Groman Aff. ¶ 3). None of the photographers whose photographs are available for customer viewing are in Connecticut. West Stock represents that its customers are anonymous without any geographic connection, that West Stock does not receive the names or addresses of its customers, that its licensing agreement provides for application of Washington law, and that its only connection with a customer is a credit card transaction number — the credit card numbers themselves are not preserved. (Groman Aff. ¶ 3). Defendant claims no known connection to Connecticut. DISCUSSION In resolving questions of personal jurisdiction in a diversity case, a district court must conduct a two part inquiry. First, it must determine whether the plaintiff has shown that the defendant is amenable to service of process under the forum state’s laws, and second, it must assess whether the court’s assertion of jurisdiction under these laws comports with the requirements of due •process. Id. (citing Savin v. Ranier, 898 F.2d 304, 306 (2d Cir.1990)). Although plaintiff’s basis for personal jurisdiction over West Stock is not clear in its Complaint, in its papers plaintiff relies on Conn. Gen. Stats. § 33-411(e)(2) and (4). Section 33-411(c) provides that a foreign corporation is subject to suit in Connecticut, whether or not it transacts business in the state, on any cause of action arising out of any business solicited in this State by mad or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state (§ 33-411(c)(2)); or out of tortious conduct in Connecticut, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance (§ 33-411(c)(4)). The Connecticut Supreme Court recently construed the provision in"
},
{
"docid": "1555361",
"title": "",
"text": "RULING ON BELL ASBESTOS’S MOTION TO DISMISS FOR LACK OF JURISDICTION NEVAS, District Judge. Bell Asbestos Mines, Limited (“Bell Asbestos”) is one of many defendants in the nine asbestos actions, based on diversity jurisdiction, captioned above and designated as C.M.L. No. 8. Plaintiffs seek damages for injuries caused by exposure to asbestos products at their place of employment, Raybestos-Manhattan Friction Materials Company (“Raymark”), located in Stratford, Connecticut. Raymark had purchased asbestos ore from Bell Asbestos. Bell Asbestos is a foreign corporation, incorporated under the laws of Canada, with its principal place of business in Thetford Mines, Quebec, Canada. Bell Asbestos now moves to dismiss these actions pursuant to Rule 12(b)(2), Fed.R.Civ.P., on the ground that there is no in personam jurisdiction over it. Specifi cally, Bell Asbestos contends that Connecticut's long-arm statute does not confer personal jurisdiction over it and that an exercise of jurisdiction under the long-arm statute would violate constitutional due process. For the following reasons, these motions are denied. DISCUSSION This diversity court’s path of inquiry to determine whether there is jurisdiction over a foreign corporation is well marked. The court must look to state law to determine if there is personal jurisdiction over Bell Asbestos, a foreign corporation. This involves a two-tiered inquiry of (1) whether Connecticut’s long-arm statute reaches Bell Asbestos, and, if so, (2) whether such statutory reach exceeds the “minimum contacts” test required for constitutional due process. See McFaddin v. National Executive Search, Inc., 354 F.Supp. 1166, 1168 (D.Conn.1973) (Newman, J.). A. First Tier of Inquiry — Connecticut’s Statutory Requirements For In Personam Jurisdiction Over A Foreign Corporation The first tier of inquiry is whether a foreign corporation’s conduct within a forum state is sufficient to subject it to legal process according to that forum state’s long-arm statute. In Connecticut, in personam jurisdiction over a foreign corporation cannot be sustained unless the requirements of Connecticut's long-arm statute, Conn.Gen.Stat. Section 33-411, are met. This statute provides, in pertinent part, that [E]very foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual"
},
{
"docid": "14564626",
"title": "",
"text": "acts of performance of contracts in this state would come within our statute if the defendant had other significant contacts with this state.” Id. at 256-57, 460 A.2d 481. The defendant’s contacts with Connecticut in Lombard Bros, were far more extensive than those presented here, where plaintiff had transferred funds from a Connecticut bank to a New York bank, defendant had mailed 145 confirmation statements from New York to here, defendant had placed two notices in the New York Times and the Wall Street Journal, and defendant had twelve other customers in Connecticut, with whom it had placed $771,r 000,000 in trades, representing 0.6 percent of its total business. Id. at 255-56. “Given the sparsity of contacts presented by the present record,” the Connecticut Supreme Court thus concluded that plaintiff had not met its burden of proving that § 33-411(c)(1) conferred jurisdiction over the defendant. Id. at 257. See also Altorfer, supra, slip op. at 8-9. iii. Conn.Gen.Stat. § 33-411(c)(4) Conn.Gen.Stat. § 33-411(c)(4) provides: Every foreign corporation shall be subject to suit in this state, ... whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: ... (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance. Coan’s Third and Fourth Counts are for fraud and negligent misrepresentation, respectively, both of which constitute “tortious conduct.” Connecticut district judges have ruled for nearly two decades that false representations entering Connecticut by wire or mail constitute tortious conduct in Connecticut under § 33-411(c)(4). Mischel, supra, slip op. at 16-18; Blumberg Associates, Inc. v. Spectrix Microsystems, Inc., Civ. No. H86-1560(TEC) (D.Conn. Feb. 22, 1988), slip op. at 9-10; David, supra, 677 F.Supp. at 97; Teleco, supra, 656 F.Supp. at 758; McFaddin, supra, 354 F.Supp. at 1171. As previously mentioned in Part II. B.2.a.i supra, there are absolutely no allegations in Coan’s complaint that corporate defendants Equitable and Matrix had any communications with"
},
{
"docid": "5065237",
"title": "",
"text": "MEMORANDUM AND ORDER JOSÉ A. CABRANES, District Judge: Introduction This action arises out of a joint venture for the construction of high voltage electrical lines in Saudi Arabia. Plaintiff Bross Utilities Service Corporation (“Bross”), a Connecticut corporation headquartered in this state, alleges various breaches of contract and of fiduciary duties, as well as tortious conduct, by the defendants, two Saudi corporations, a Lebanese corporation, two individual citizens of Saudi Arabia and one citizen of Lebanon. According to Bross, the defendants’ wrongful acts deprived it of over $20,000,000, which represented Bross’ share of the past and anticipated future profits of the joint venture. Bross claims that the defendants are subject to the jurisdiction of this court through the application of the Connecticut “long-arm” statutes governing in personam jurisdiction over foreign corporations, Conn. Gen.Stat. § 33-411, and nonresident individuals, Conn.Gen.Stat. § 52-59b. Bross served process on the Secretary of State of Connecticut in the manner provided by Conn.Gen.Stat. §§ 33-411(d) and 52-59b(c) in November 1978. None of the defend ants answered or appeared, and default was entered, pursuant to Rule 55(a), Fed.R.Civ.P., on December 28, 1979. On February 15, 1980, the court granted the plaintiff’s motion for default judgment, under Rule 55(b), Fed.R.Civ.P., and ordered that a hearing be held to determine the damages which Bross might recover. At that hearing, which was held on March 10-11, 1980, the court raised questions concerning its jurisdiction over the defendants and reserved the right not to enter any judgment in favor of the plaintiff if it found that such jurisdiction was lacking. The plaintiff presented the testimony of its senior vice president, Peter G. Olson, as well as documentary evidence, concerning the questions of jurisdiction and damages. After examination and analysis of the plaintiff’s complaint, the evidence presented at the hearing, and Bross’ post-hearing submissions, the court concludes that the applicable Connecticut statutes do not authorize in personam jurisdiction over the defendants. Accordingly, the plaintiff’s motion for default judgment is, upon reconsideration, denied, the action is dismissed and judgment shall enter for the defendants. I. FACTUAL BACKGROUND A. Bross Bross is incorporated in the"
},
{
"docid": "5065265",
"title": "",
"text": "corporation with thirteen salesmen in Connecticut, generating approximately $300,000 in sales an nually) and Horn Construction, Inc. v. Stran-Steel Corp., 26 Conn.Supp. 201, 216 A.2d 833 (Ct. C.P. Hartford Cty. 1965) (action arising out of defendant’s sale to Connecticut plaintiff of plans, specifications and building materials for construction of buildings in Connecticut) involved considerably more than mere communications from outside the jurisdiction into Connecticut. The plaintiff has not called to the court’s attention any cases holding that interstate or international communications between foreign defendants and a Connecticut plaintiff by themselves establish jurisdiction over the defendants pursuant to Conn.Gen.Stat. § 33-411(b), and the court is not aware of any such authority. . N.Y.C.P.L.R. § 302(a)(1) provides for jurisdiction over “any nondomiciliary” who “transacts any business within the state,” as to a cause of action arising from the transaction of such business. As applied to corporations, the scope of this provision is at least as broad as that of Conn.Gen.Stat. § 33-411(b), which provides that “[e]very business in this state in violation of section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business.” . If the contracts were made through face-to-face meetings, they were clearly made outside of Connecticut. See Tr. 87. . The statutory reach of Connecticut’s “long arm” is more expansive with regard to nonresident individuals under Conn.Gen.Stat. § 52-59b(a)(3) than it is with regard to foreign corporations under Conn.Gen.Stat. § 33-411, at least in tort cases. As noted at p. 1374, infra, jurisdiction under the former provision may be premised on torts committed outside Connecticut which cause injury within the state in certain enumerated circumstances; Conn.Gen. Stat. § 33-411 contains no analogue governing corporate defendants. . See generally Duksa v. City of Middletown, 173 Conn. 124, 376 A.2d 1099 (1977); Cole v. Associated Construction Co., 141 Conn. 49, 103 A.2d 529 (1954). . See generally Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 733-34 (D.Conn.1979); Goldman v. Feinberg, 130 Conn. 671, 674-76, 37 A.2d 355, 356 (1944). . The New York statute provides: (a) Acts which are"
},
{
"docid": "18264504",
"title": "",
"text": "filed by a corporation required to do so by section 33-396, the sanction provided by section 33 — 412 is to bar it from access to any court of this state. See Armor Bronze & Silver Co. v. Chittick, 221 F.Supp. 505, 510 (D.Conn.1963). It is well settled that a federal district court sitting in a diversity case must look to state law to determine whether it may exercise jurisdiction over foreign corporations. Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir.1963) (en banc); Marvel Products, Inc. v. Fantastics, Inc., 296 F.Supp. 783, 785 (D.Conn.1968). Since Arrowsmith, the federal courts in this district have applied “a two-tiered consideration of (1) whether the appropriate sta.te statute reaches the foreign corporation and (2) whether such statutory reach exceeds the constitutional ‘minimum contacts’ test required by due process.” McFaddin v. National Executive Search, Inc., 354 F.Supp. 1166, 1168 (D.Conn.1973). See also Marvel Products, Inc. v. Fantastics, Inc., 296 F.Supp. 783 (D.Conn.1968); Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550, 554 (D.Conn.1968). Subject Matter Jurisdiction Under Conn.Gen.Stat. § 33-411(b) AHC’s challenge to the exercise of jurisdiction over it has been clearly circumscribed in the first of two stages of the analysis which must be made: Whether or not AHC has transacted business in Connecticut, it is clear that plaintiffs cannot satisfy the fundamental requirement of § 411(b), for they have not stated — and could not state, in light of the facts — any cause of action “arising out of such business.” Defendant’s Memorandum in Support of Its Motion to Dismiss the Complaint at 7 (footnote omitted, emphasis in original). The plaintiffs argue strenuously that the “arising out of” language of section 33-411(b) does not mandate a direct relationship between the cause of action and the business transacted in this state. All that is required for the existence of jurisdiction, they contend, is “whether AHC’s extensive contacts with the State of Connecticut meet the necessary nexus requirements to confer jurisdiction upon this court.” As authority for that proposition they cite Judge Zampano’s remark in Chemical Specialities Sales Corp. v. Basic, Inc.,"
},
{
"docid": "5065266",
"title": "",
"text": "shall be subject to suit in this state upon any cause of action arising out of such business.” . If the contracts were made through face-to-face meetings, they were clearly made outside of Connecticut. See Tr. 87. . The statutory reach of Connecticut’s “long arm” is more expansive with regard to nonresident individuals under Conn.Gen.Stat. § 52-59b(a)(3) than it is with regard to foreign corporations under Conn.Gen.Stat. § 33-411, at least in tort cases. As noted at p. 1374, infra, jurisdiction under the former provision may be premised on torts committed outside Connecticut which cause injury within the state in certain enumerated circumstances; Conn.Gen. Stat. § 33-411 contains no analogue governing corporate defendants. . See generally Duksa v. City of Middletown, 173 Conn. 124, 376 A.2d 1099 (1977); Cole v. Associated Construction Co., 141 Conn. 49, 103 A.2d 529 (1954). . See generally Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 733-34 (D.Conn.1979); Goldman v. Feinberg, 130 Conn. 671, 674-76, 37 A.2d 355, 356 (1944). . The New York statute provides: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent: * ifc * * * * (3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce. N.Y.C.P.L.R. § 302(a)(3). . Indeed, all of Conn.Gen.Stat. § 52-59b(a), which was enacted in 1969, was based upon N.Y.C.P.L.R. § 302(a). Gandolfo v. Alford, 31 Conn.Supp. 417, 333 A.2d 65 (Super Ct. Litchfield Cty. 1975)."
},
{
"docid": "5065253",
"title": "",
"text": "the act to have consequences in the state and derives substantial revenue from interstate or international commerce Conn.Gen.Stat. § 52-59b(a). (1) Jurisdiction Under Conn.Gen.Stat. §§ 52-59b(a)(l) and (2) Nothing in the record indicates that the individual defendants transacted any business other than through the corporations which they controlled. Accordingly, the court’s conclusion that the plaintiff’s claims against the corporate defendants did not arise out of the transaction by them of any business in Connecticut compels a finding that the same claims against the individual defendants similarly do not confer in personam jurisdiction on this court under Conn.Gen.Stat. § 52-59b(a)(l). Likewise, the court’s determination that the tortious conduct of the corporate defendants oc curred outside of Connecticut leads inexorably to the conclusion that Conn.Gen.Stat. § 52-59b(a)(2) has no application here. (2) Jurisdiction Under Conn.Gen.Stat. § 52-59b(a)(3) A more serious question is presented by Bross’ invocation of Conn.Gen.Stat. § 52-59b(a)(3), for the defendants’ tortious acts, including fraudulent inducement and wrongful interference with Bross’ business although committed in Saudi Arabia, arguably “cause[d] injury to person or property within the state” of Connecticut. The threshold question under Conn.Gen.Stat. § 52-59b(a)(3) is whether the injury to Bross occurred in Connecticut. Determining the place of injury caused by a commercial tort committed in the course of interstate or international business transactions is not simple task, but is required by the statute. See American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 432-33 (2d Cir. 1971). Although there are no reported cases on this question under the Connecticut statute, the court is able to draw upon a substantial body of relevant ease law decided under the nearly identical New York statute, N.Y.C.P.L.R. § 302(a)(3), upon which Conn.Gen.Stat. § 52-59b(a)(3) is based. Under the New York statute, it has repeatedly been held that the facts that a plaintiff who has lost profits or suffered other pecuniary injury is domiciled or incorporated in that state or that New York is the plaintiff’s principal place of business do not necessarily make New York the situs of the plaintiff’s injury. See, e. g., Lehigh Valley Industries, Inc."
},
{
"docid": "20569137",
"title": "",
"text": "MEMORANDUM OF DECISION ON MOTION TO DISMISS NEWMAN, District Judge. Plaintiff, a New York corporation, brought this suit for unfair competition and interfering with contractual relations against the defendant, an Ohio corporation, and an individual defendant, Anthony R. Daponte, a Connecticut resident. By stipulation, plaintiff has since dropped its claims against Daponte. Jurisdiction is claimed on diversity of citizenship. Defendant Curtis Noll Corporation (hereinafter Curtis) has moved, pursuant to Rule 12(b), to dismiss the action for want of personal jurisdiction. Curtis was served with process under Conn.Gen.Stat. § 33-411, Connecticut’s corporation “long-arm” statute. Actual service was made upon Daponte, then in Curtis’ employ. Curtis’ motion is direct ed to both lack of personal jurisdiction and insufficiency of service of process. Jurisdiction Over the Person Under the doctrine of Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir. 1963), a federal court in a diversity case must look to state law to determine whether it may exercise jurisdiction over foreign corporations. Under the Connecticut long-arm statute, jurisdiction may be exercised over a foreign corporation, if, inter alia, (1) the corporation is authorized to transact business within the state, § 33-411(a); (2) the corporation is not so authorized, but is in fact transacting business within the state in violation of § 33-396, and the cause of action arises out of such business, § 33-411 (b); and (3) the cause of action arises out of tortious conduct in the state, even by a corporation not transacting business here, § 33-411(c) (4). It should be noted at the outset that defendant does not contend that requiring it to defend this suit in Connecticut would deprive it of due process under the “minimum contacts” test of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. Rather, defendant points to such cases as Electric Regulator Corp. v. Sterling Extruder Corp., 280 F.Supp. 550 (D.Conn,1968), and Southern New England Distributing Corp. v. Berkeley Finance Corp., 30 F.R.D. 43 (D.Conn. 1962), for the proposition that Connecticut’s long-arm statute, as a matter of state policy, does not define transacting"
},
{
"docid": "15972994",
"title": "",
"text": "As the Court has stated above, the payment of premiums by the plaintiff Teleco is a significant act of performance in Connecticut. Furthermore, any claims to be paid by the Scandinavian Insurers would be paid to Teleco in Connecticut. The locus of the “beneficial operation and effect,” id. at 909, under the subject insurance policy is clearly Connecticut, and therefore the law of the State of Connecticut should apply. Accordingly, the defendants’ motion to dismiss on the basis of forum non conveniens is also denied. SO ORDERED. . Skandia has its principal place of business in Stockholm, Sweden; Storebrand-Norden, Samvirke, Norges, and Polaris have their principal place of business in Oslo, Norway; and Vesta has its principal place of business in Bergen, Norway. . Teleco also claims that this Court has jurisdiction over the defendants pursuant to the long-arm jurisdiction of the Unáuthorized Insurers Act. Conn.Gen.Stat. § 38-263 et seq. Because the Court finds jurisdiction under the general Connecticut long-arm statute, Conn.Gen.Stat. § 33-411, the Court need not consider this additional jurisdictional claim put forth by the plaintiff. . Conn.Gen.Stat. § 33-411(c) states in pertinent part: Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, or any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; ... or (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance. . Conn.Gen.Stat. § 38-90a states: Any payment made by or on behalf of an insured to any broker for policies of insurance which have been issued to such broker for delivery to the insured or issued directly to the insured on the order of such broker shall, in controversies between the insured and the company,"
},
{
"docid": "5065248",
"title": "",
"text": "440 F.Supp. at 1013 (same); Rainbow Industrial Products v. Haybuster Manufacturing, Inc., 419 F.Supp. 543 (E.D.N.Y.1976) (same). Because the court has before it no evidence that the corporate defendants have otherwise transacted business in the state, the international communications do not suffice to confer jurisdiction over them pursuant to Conn.Gen.Stat. § 33-411(b). (2) Jurisdiction Under Conn.Gen.Stat. § 33-411(c) Bross argues that Conn.Gen.Stat. § 33-411(c) permits the court to assert in person-am jurisdiction over the corporate defendants. To the extent relied upon by the plaintiff, that provision states: (c) Every foreign corporation shall be subject to suit in this state, by a resident of this state or by a person having a usual place of business in this state, whether or not such foreign corporation is transacting or has transacted business in this state and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state; or (2) out of any business solicited in this state by mail or otherwise if the corporation has repeatedly so solicited business, whether the orders or offers relating thereto were accepted within or without the state; or . (4) out of tortious conduct in this state, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance. Conn.Gen.Stat. § 33-411(c). Bross’ claim that the action arises out of a contract made in Connecticut must fail for lack of relevant allegations or proof. There is no evidence on the record and no allegation in the complaint as to where any of the relevant contracts were made; indeed, the plaintiff has not provided the court with copies of any contracts. Nor has the plaintiff established that the contracts clearly and expressly contemplated and required performance by either party in Connecticut. See Bowman v. Grolsche Bierbrouwerij B.V., 474 F.Supp. 725, 732 & n.7 (D.Conn.1979) (Daly, J.); Giendinning Companies, Inc. v. Codesco, Inc., supra, 3 Conn.L.Trib. No. 40 at 16. From the testimony of the plaintiff’s senior vice"
},
{
"docid": "14564629",
"title": "",
"text": "personal jurisdiction under Connecticut’s long-arm statute, []§ 33-411(c)(4) ...” Id. at 98 (emphasis in original). He further ruled that due process was not offended, in that the defendants “purposefully availed themselves of the benefits of this state” by their allegedly fraudulent misrepresentations. Id. at 99-100. The David decision does not quantify the number of telephone conversations and letters initiated by defendants to plaintiff. If communications from afar which enter Connecticut are sufficient to invoke jurisdiction under § 33-411(c)(4), then surely the July 1986 meeting in Stamford, at which JMA. was represented by Mallin, similarly is sufficient to satisfy the statutory language and constitutional requirements presented by that long-arm statute. b. THE INDIVIDUAL DEFENDANTS The four individual defendants who claim lack of in personam jurisdiction are Smith, Hasen, Mallin, and Gangel, none of whom are Connecticut residents. There are two potential statutory bases for personal jurisdiction over them — Conn.Gen.Stat. §§ 52-59b(a)(l) and (2). i. Conn.Gen.Stat. § 52-59b(a)(l) Conn.Gen.Stat. § 52-59b(a)(l) provides in relevant part: “ '... a court may exercise personal jurisdiction over any nonresident individual ... who in person or through an agent \\.. transacts any business within the state ...” In Zartolas v: Nisenfeld, 184 Conn. 471, 474, 440 A.2d 179 (1981), the Connecticut Supreme Court observed that the term “transacts any business” is not defined within the statute; the court accordingly construed that term “to embrace a single purposeful business transaction.” The court then elaborated: In determining whether the plaintiffs’ cause of action arose from the defendant’s transaction of business within this state we do not resort to a rigid formula. Rather, we balance considerations of public policy, common sense, and the chronology and geography of the relevant factors. Id. at 477, 440 A.2d 179. The court further noted that the phrase “transacts any business” in § 52-59b(a) “has a broader meaning” than the phrase “transacts business” within the various corporate statutes. Id. at 476 n. 4, 440 A.2d 179. See also Crestmont, supra, slip op. at 6; Corporate Park Associates v. Goldstein, Civ. No. H89-173(PCD) (D.Conn. Sept. 7, 1989), slip op. at 3-4; Joiner v. Greene,"
}
]
|
196336 | test is now embodied in Treas. Reg. § 1.461-1(a)(2), 26 CFR § 1.461-1(a)(2) (1986), which provides that “[ujnder an accrual method of accounting, an expense is deductible for the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be determined with reasonable accuracy.” It is fundamental to the “all events” test that, although expenses may be deductible before they have become due and payable, liability must first be firmly established. This is consistent with our prior holdings that a taxpayer may not deduct a liability that is contingent, see Lucas v. American Code Co., 280 U. S. 445, 452 (1930), or contested, see REDACTED Nor may a taxpayer deduct an estimate of an anticipated expense, no matter how statistically certain, if it is based on events that have not occurred by the close of the taxable year. Brown v. Helvering, 291 U. S. 193, 201 (1934); cf. American Automobile Assn. v. United States, 367 U. S. 687, 693 (1961). We think that this case, like Brown, involves a mere estimate of liability based on events that had not occurred before the close of the taxable year, and therefore the proposed deduction does not pass the “all events” test. We disagree with the legal conclusion of the courts below that the last event necessary to fix the taxpayer’s liability was the receipt of medical care | [
{
"docid": "22639979",
"title": "",
"text": "the Commissioner to allow the deduction of losses in a year other than that in which sustained when, in his opinion, that was necessary clearly to reflect income. The qualifying clause of § 43 was first added as § 200 (d) of the Revenue Act of 1924. The reports of both House and Senate Committees concerning this change said: “The proposed bill extends that theory to all deductions and credits. The necessity for such a provision arises in cases in which a taxpayer pays in one year interest or rental payments or other items for a period of years. If he is forced to deduct the amount in the year in which paid, it may result in a distortion of his income which will cause him to pay either more or less taxes than he properly should.” From these reports it is clear that the purpose of inserting the qualifying clause was to take care of fixed liabilities payable in fixed installments over a series of years. For example, a tenant would not be compelled to accrue, in the first year of a lease, the rental liability covering the entire term nor would he be permitted, if he saw fit to pay all the rent in advance, to deduct the whole payment as an expense of the current year. But we think it was not intended to upset the well-understood and consistently applied doctrine that cash receipts or matured accounts due on the one hand, and cash payments or accrued definite obligations on the other, should not be taken out of the annual accounting system and, for the benefit of the Government or the taxpayer, treated on a basis which is neither a cash basis nor an accrual basis, because so to do would, in a given instance, work a supposedly more equitable result to the Government or to the taxpayer. The question is not whether the Board, within its discretion, made a determination of fact. Compare Dobson v. Commissioner, 320 U. S. 489. It is rather whether, as matter of law, the Board misconstrued the extent of the power"
}
]
| [
{
"docid": "10407151",
"title": "",
"text": "principal issue for decision is whether, in the short taxable period December 22 to 31,1961, and in the calendar years 1962 and 1963, petitioner may accrue royalties computed but not yet paid under paragraph 6 of its agreement with Matz and Evans. Sec tion 446, I.R.C. 1954, authorizes the use of an accrual method of accounting, and the Commissioner has not questioned petitioner’s status as an accrual method taxpayer. Section 461(a), I.E.C. 1954, provides that “The amount of any deduction * * * allowed iby this subtitle shall be taken for the taxable year which is the proper taxable year under the method of accounting used in computing taxable income.” Regulations section 1.461-1 (a) (2) sets forth the general rule for determining the proper year for deduction by an accrual method taxpayer: Under an accrual method of accounting, an expense is deductible for the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be determined with reasonable accuracy. * * * While no accrual shall be made in any case in which all of the events have not occurred which fix the liability, the fact that the exact amount of the liability which has been incurred cannot be determined will not prevent the accrual within the taxable year of such part thereof as can be computed with reasonable accuracy. See also Security Flour Mills Co., 321 U.S. 281, 284; Dixie Pine Products Co. v. Commissioner, 320 U.S. 516, 518-519; Lucas v. American Code Co., 280 U.S. 445, 449-451; American National Co. v. United States, 274 U.S. 99, 104-105; United States v. Anderson, 269 U.S. 422, 440-441. The issue between the parties is thus whether petitioner’s liability for royalties under paragraph 6 was sufficiently fixed or determinable to permit accrual during the periods here in question. We conclude that petitioner’s liability for such royalties was so contingent and uncertain that accrual is impermissible and that the Commissioner’s determination must therefore be sustained. Under the agreement as originally executed in 1961, petitioner was not required to make any royalty payments"
},
{
"docid": "16038275",
"title": "",
"text": "are paid. Treas.Reg. §§ 1.446-1(c)(1)® and 1.461-l(a)(l). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446-l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U.S. 422, 441, 46 S.Ct. 131, 134, 70 L.Ed. 347 (1926) (“it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it”). Since then, the Court has described the “all events” test “established” in Anderson, as “the ‘touchstone’ for determining the year in which an item of deduction accrues,” and as “a fundamental principle of tax accounting.” United States v. Consolidated Edison Co., 366 U.S. 380, 385, 81 S.Ct. 1326, 1329, 6 L.Ed.2d 356 (1961) (citing cases). Under the Regulations, the “all events” test has two elements, each of which must be satisfied before accrual of an expense is proper. First, all the events must have ' occurred which establish the fact of the liability. Second, the amount must be capable of being determined “with reasonable accuracy.” Treas.Reg. § 1.446—l(c)(l)(ii). This case concerns only the first element, since the parties agree that the second is fully satisfied. Ill The Court’s cases have emphasized that “a liability does not accrue as long as it remains contingent.” Brown v. Helvering, 291 U.S. 193, 200, 54 S.Ct. 356, 359, 78 L.Ed. 725 (1934); accord, Dixie Pine Co. v. Commissioner, 320 U.S. 516, 519, 64 S.Ct. 364, 365, 88 L.Ed. 270 (1944)."
},
{
"docid": "2530577",
"title": "",
"text": "v. Commissioner, 54 T.C. 1749, 1751 (1970), affd. per curiam on this issue 467 F.2d 1184 (7th Cir. 1972). Where inventories are employed, purchases and sales must be computed on the accrual method (unless another method is authorized by the Commissioner) in order to avoid the distortion of income. Sec. 1.446-l(c)(2), Income Tax Regs.; Stoller v. United States, 162 Ct. Cl. 839, 845, 320 F.2d 310, 343 (1963). Section 1.446-l(c)(l)(ii), Income Tax Regs., describes the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * This description of the accrual method is repeated in the regulations under section 451, insofar as it pertains to the accrual of income, and in the regulations under section 461, insofar as it pertains to the accrual of deductible expenses. This so-called “all events” test has long been recognized as a cornerstone of the accrual method of accounting for Federal income tax purposes. See, e.g., Brown v. Helvering, 291 U.S. 193 (1934); Lucas v. American Code Co., 280 U.S. 445 (1930); United States v. Anderson, 269 U.S. 422 (1926). Section 451(a) and section 1.451-l(a), Income Tax Regs., state the general rule that any item of gross income shall be included in gross income for the year in which it is received by the taxpayer, unless, under an acceptable accounting method, it may be properly accounted for in some other period. An exception to this general rule exists for income from long-term contracts. ^ Section 1.451-3(b), Income Tax Regs., provides that, in general, the term “long-term contract” includes a manufacturing contract which is not completed within the taxable year in which it is entered into. However, a manufacturing contract constitutes a"
},
{
"docid": "23327543",
"title": "",
"text": "determined with reasonable accuracy.” It is fundamental to the “all events” test that, although expenses may be deductible before they have become due and payable, liability must first be firmly established. This is consistent with our prior holdings that a taxpayer may not deduct a liability that is contingent, see Lucas v. American Code Co., 280 U. S. 445, 452 (1930), or contested, see Security Flour Mills Co. v. Commissioner of Internal Revenue, 321 U. S. 281, 284 (1944). Nor may a taxpayer deduct an estimate of an anticipated expense, no matter how statistically certain, if it is based on events that have not occurred by the close of the taxable year. Brown v. Helvering, 291 U. S. 193, 201 (1934); cf. American Automobile Assn. v. United States, 367 U. S. 687, 693 (1961). We think that this case, like Brown, involves a mere estimate of liability based on events that had not occurred before the close of the taxable year, and therefore the proposed deduction does not pass the “all events” test. We disagree with the legal conclusion of the courts below that the last event necessary to fix the taxpayer’s liability was the receipt of medical care by covered individuals. A person covered by a plan could only obtain payment for medical services by filling out and submitting a health-expense-benefits claim form. App. 23. Employees were informed that submission of satisfactory proof of the charges claimed would be necessary to obtain payment under the plans. Id., at 58. General Dynamics was thus liable to pay for covered medical services only if properly documented claims forms were filed. Some covered individuals, through oversight, procrastination, confusion over the coverage provided, or fear of disclosure to the employer of the extent or nature of the services received, might not file claims for reimbursement to which they are plainly entitled. Such filing is not a mere technicality. It is crucial to the establishment of liability on the part of the taxpayer. Nor does the failure to file a claim represent the type of “extremely remote and speculative possibility” that we held in"
},
{
"docid": "23327547",
"title": "",
"text": "alone does not justify a deduction. In Brown, supra, the taxpayer, a general agent for insurance companies, sought to take a deduction for a reserve representing estimated liability for premiums to be returned on the percentage of insurance policies it anticipated would be cancelled in future years. The agent may well have been capable of estimating with a reasonable degree of accuracy the ratio of cancellation refunds to premiums already paid and establishing its reserve accordingly. Despite the “strong probability that many of the policies written during the taxable year” would be cancelled, 291 U. S., at 201, the Court held that “no liability accrues during the taxable year on account of cancellations which it is expected may occur in future years, since the events necessary to create the liability do not occur during the taxable year.” Id., at 200. A reserve based on the proposition that a particular set of events is likely to occur in the future may be an appropriate conservative accounting measure, but does not warrant a tax deduction. See American Automobile Assn. v. United States, supra, at 692; Lucas v. American Code Co., 280 U. S., at 452. That these estimated claims were not intended to fall within the “all events” test is further demonstrated by the fact that the Internal Revenue Code specifically permits insurance companies to deduct additions to reserves for such “incurred but not reported” (IBNR) claims. See 26 U. S. C. § 832(b)(5) (providing that an insurance company may treat as losses incurred “all unpaid losses outstanding at the end of the taxable year”); § 832(c)(4) (permitting deduction of losses incurred as defined in § 832(b)(5)). If the “all events” test permitted the deduction of an estimated reserve representing claims that were actuarially likely but not yet reported, Congress would not have needed to maintain an explicit provision that insurance companies could deduct such reserves. General Dynamics did not show that its liability as to any medical care claims was firmly established as of the close of the 1972 tax year, and is therefore entitled to no deduction. The judgment of"
},
{
"docid": "15206763",
"title": "",
"text": "of liability and the amount thereof can be determined with reasonable accuracy, and that liability exists “if there is an obligation to perform an act and the cost of performance can be measured in money.” Ibid. The liability here was not contingent upon the time of payment or the identity of the jackpot winner. Rather, it was fixed by the Commission’s regulation. The “contrary conclusion” of the Ninth Circuit in Nightingale was noted. 760 F. 2d, at 1293. Because of the clear conflict between the two Circuits, we granted certiorari. 474 U. S. 1004 (1985). II Section 162(a) of the Internal Revenue Code allows a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Section 446(a) provides that taxable income “shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.” Under the “cash receipts and disbursements method,” specifically recognized by § 446(c)(1), a taxpayer is entitled to deduct business expenses only in the year in which they are paid. Treas. Reg. §§ 1.446-l(c)(l)(i) and 1.461-l(a)(l), 26 CFR §§ 1.446-l(c)(l)(i), 1.461-l(a)(l) (1985). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446 — l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U. S. 422, 441 (1926) (“[I]t is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax"
},
{
"docid": "16038274",
"title": "",
"text": "with reasonable accuracy, and that liability exists “if there is an obligation to perform an act and the cost of performance can be measured in money.” Ibid. The liability here was not contingent upon the time of payment or the identity of the jackpot winner. Rather, it was fixed by the Commission’s regulation. The “contrary conclusion” of the Ninth Circuit in Nightingale was noted. Ibid. Because of the clear conflict between the two Circuits, we granted certiorari. 474 U.S. -, 106 S.Ct. 522, 88 L.Ed.2d 455 (1985). II Section 162(a) of the Internal Revenue. Code allows a deduction for “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Section 446(a) provides that taxable income “shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.” Under the “cash receipts and disbursements method,” specifically recognized by § 446(c)(1), a taxpayer is entitled to deduct business expenses only in the year in which they are paid. Treas.Reg. §§ 1.446-1(c)(1)® and 1.461-l(a)(l). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446-l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U.S. 422, 441, 46 S.Ct. 131, 134, 70 L.Ed. 347 (1926) (“it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it”). Since"
},
{
"docid": "1404261",
"title": "",
"text": "set aside to cover a liability not yet incurred. Thus, the mere fact that CAB regulations require the establishment of reserves for overhaul expenses has no material bearing upon the issue here presented. To be deductible under section 162, an expense must be “paid or incurred” in the taxable year. Amounts set aside as reserves for payment of anticipated future liabilities or contingent expenses cannot be accrued since the liability has not in fact been incurred. Lucas v. American Code Co., supra. In United States v. Consolidated Edison Co. of N.Y., 366 U.S. 380, 384-385 (1961), the Supreme Court stated: It is settled that each “taxable year” must be treated as a separate unit, and all items of gross income and deduction must be reflected in terms of their posture at the close of such year. * * * neither the Government nor an accrual-basis taxpayer may cause an item to be deducted in a year other than the one in which it accrued. * * * the “touchstone” for determining the year in which an item of deduction accrues is the “all events” test established by this Court in United States v. Anderson, supra [269 U.S. 422], and since reaffirmed by this Court on numerous occasions, so that it is now a fundamental principle of tax accounting. * * * [Fn. omitted.] The “all events” test, first articulated in United States v. Anderson, supra, was subsequently incorporated into the Income Tax Regulations. As regulation 1.461-1 (a) (2) and court decisions make plain, the test includes two requirements, and each requirement must be met in the taxable year for which the deduction is sought. Thriftimart, Inc., 59 T.C. 598 (1973) (appeal pending C.A. 9, Sept. 21, 1973). We therefore turn to consideration of whether the disallowed overhaul expenses were “incurred” by petitioner in the years for which their deduction is sought herein. The first requirement for the accrual of an expense in a taxable year is that “all of the events have occurred which determine the fact of the liability.” The purpose of this requirement is to protect tax revenues"
},
{
"docid": "23327542",
"title": "",
"text": "476 U. S. 593, 600 (1986), whether a business expense has been “incurred” so as to entitle an accrual-basis taxpayer to deduct it under § 162(a) of the Internal Revenue Code, 26 U. S. C. § 162(a), is governed by the “all events” test that originated in United States v. Anderson, 269 U. S. 422, 441 (1926). In Anderson, the Court held that a taxpayer was obliged to deduct from its 1916 income a tax on profits from munitions sales that took place in 1916. Although the tax would not be assessed and therefore would not formally be due until 1917, all the events which fixed the amount of the tax and determined the taxpayer’s liability to pay it had occurred in 1916. The test is now embodied in Treas. Reg. § 1.461-1(a)(2), 26 CFR § 1.461-1(a)(2) (1986), which provides that “[ujnder an accrual method of accounting, an expense is deductible for the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be determined with reasonable accuracy.” It is fundamental to the “all events” test that, although expenses may be deductible before they have become due and payable, liability must first be firmly established. This is consistent with our prior holdings that a taxpayer may not deduct a liability that is contingent, see Lucas v. American Code Co., 280 U. S. 445, 452 (1930), or contested, see Security Flour Mills Co. v. Commissioner of Internal Revenue, 321 U. S. 281, 284 (1944). Nor may a taxpayer deduct an estimate of an anticipated expense, no matter how statistically certain, if it is based on events that have not occurred by the close of the taxable year. Brown v. Helvering, 291 U. S. 193, 201 (1934); cf. American Automobile Assn. v. United States, 367 U. S. 687, 693 (1961). We think that this case, like Brown, involves a mere estimate of liability based on events that had not occurred before the close of the taxable year, and therefore the proposed deduction does not pass the “all events” test. We disagree"
},
{
"docid": "15206764",
"title": "",
"text": "expenses only in the year in which they are paid. Treas. Reg. §§ 1.446-l(c)(l)(i) and 1.461-l(a)(l), 26 CFR §§ 1.446-l(c)(l)(i), 1.461-l(a)(l) (1985). The Code also permits a taxpayer to compute taxable income by the employment of “an accrual method.” § 446(c)(2). An accrual-method taxpayer is entitled to deduct an expense in the year in which it is “incurred,” § 162(a), regardless of when it is actually paid. For a number of years, the standard for determining when an expense is to be regarded as “incurred” for federal income tax purposes has been the “all events” test prescribed by the Regulations. See Treas. Reg. § 1.446 — l(c)(l)(ii) (accruals in general); § 1.451-l(a) (accrual of income); and § 1.461-l(a)(2) (accrual of deductions). This test appears to have had its origin in a single phrase that appears in this Court’s opinion in United States v. Anderson, 269 U. S. 422, 441 (1926) (“[I]t is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it”). Since then, the Court has described the “all events” test “established” in Anderson as “the ‘touchstone’ for determining the year in which an item of deduction accrues,” and as “a fundamental principle of tax accounting.” United States v. Consolidated Edison Co. of New York, 366 U. S. 380, 385 (1961) (citing cases). Under the Regulations, the “all events” test has two elements, each of which must be satisfied before accrual of an expense is proper. First, all the events must have occurred which establish the fact of the liability. Second, the amount must be capable of being determined “with reasonable accuracy.” Treas. Reg. § 1.446-l(c)(l)(ii). This case concerns only the first element, since the parties agree that the second is fully satisfied. Ill The Court’s cases have emphasized that “a liability does not accrue as long as it remains contingent.” Brown v. Helvering, 291 U. S. 193, 200 (1934); accord, Dixie Pine Products Co. v. Commissioner, 320 U. S. 516, 519 (1944). Thus, to satisfy"
},
{
"docid": "20077221",
"title": "",
"text": "bringing unfixed, delivered, on-call purchases to market; to value their inventories at market in any event and to deny them the opportunity to bring their purchase costs to market results, they maintain, in a substantial distortion of income. As stated above, if a taxpayer uses inventories, purchases must be accounted for under the accrual method in order to accurately reflect the cost of goods sold during the year. Sec. 1.446-l(c)(2), Income Tax Regs. The all events test relied upon by the Commissioner has long been a cornerstone of the accrual method of accounting for Federal income tax purposes. See, e.g., Brown v. Helvering, 291 U.S. 193 (1934); Lucas v. American Code Co., 280 U.S. 445 (1930); United States v. Anderson, 269 U.S. 422 (1926). The regulations describe the accrual method as follows: Generally, under an accrual method, income is to be included for the taxable year when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy. Under such a method, deductions are allowable for the taxable year in which all the events have occurred which establish the fact of the liability giving rise to such deduction and the amount thereof can be determined with reasonable accuracy. * * * [Sec. 1.446 — l(c)(l)(ii), Income Tax Regs.] This description of the accrual method is repeated in the regulations under section 451, insofar as it pertains to the accrual of income, and in the regulations under section 461, insofar as it pertains to the accrual of deductible expenses. In our view, the Commissioner’s reliance, in part, on section 1.461-l(a)(2) of the regulations is misplaced. Although purchases are an \"expense” in the colloquial sense, it is well settled that they are not a \"deduction” within the meaning of section 461 and that they are not subject to the rules governing deductions under such section. Purchases are taken into account in computing the cost of goods sold, which is an offset, or exclusion, employed in the computation of gross profit and gross income (section 1.61-3(a), Income Tax Regs.); whereas, throughout"
},
{
"docid": "23327541",
"title": "",
"text": "tax return, General Dynamics filed an amended return, claiming it was entitled to deduct its reserve as an accrued expense, and seeking a refund. The IRS disallowed the deduction, and General Dynamics sought relief in the Claims Court. The Claims Court sustained the deduction, holding that it satisfied the “all events” test embodied in Treas. Reg. § 1.461-1(a)(2), 26 CFR § 1.461-l(a)(2) (1986), since “all events” which determined the fact of liability had taken place when the employees received covered services, and the amount of liability could be determined with reasonable accuracy. Thus, the court held that General Dynamics was entitled to a refund. 6 Cl. Ct. 250 (1984). The Court of Appeals for the Federal Circuit affirmed, largely on the basis of the Claims Court opinion. 773 F. 2d 1224, 1226 (1985). The United States sought review of the question whether all the events necessary to fix liability had occurred. We granted certiorari, 476 U. S. 1181 (1986). We reverse. I — I hH As we noted in United States v. Hughes Properties, Inc., 476 U. S. 593, 600 (1986), whether a business expense has been “incurred” so as to entitle an accrual-basis taxpayer to deduct it under § 162(a) of the Internal Revenue Code, 26 U. S. C. § 162(a), is governed by the “all events” test that originated in United States v. Anderson, 269 U. S. 422, 441 (1926). In Anderson, the Court held that a taxpayer was obliged to deduct from its 1916 income a tax on profits from munitions sales that took place in 1916. Although the tax would not be assessed and therefore would not formally be due until 1917, all the events which fixed the amount of the tax and determined the taxpayer’s liability to pay it had occurred in 1916. The test is now embodied in Treas. Reg. § 1.461-1(a)(2), 26 CFR § 1.461-1(a)(2) (1986), which provides that “[ujnder an accrual method of accounting, an expense is deductible for the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be"
},
{
"docid": "14742507",
"title": "",
"text": "will allow interest on claims against debtors’ estates being administered by them has long been decided by federal law”). Sections 446(a) and 461(a) of the Internal Revenue Code provide that taxable income is computed, and deductions taken, under the accounting method that the taxpayer normally uses for his books. I.R.C. §§ 446(a), 461(a). WTMC maintained its books, and calculated its federal income tax liability, utilizing the accrual method. Under that method, the standard for determining when an expense has been incurred for federal income tax purposes has been the “all events” test. During the years at issue, the test required that two elements be met before accrual of an expense would be allowed: first, all the events must have occurred that establish the fact of the liability; and, second, the amount of the liability must be capable of being determined with reasonable accuracy. Only the first element is at issue. “[A]lthough expenses may be deductible before they have become due and payable, liability must first be firmly established.... [A] taxpayer may not deduct a liability that is contingent....” United States v. General Dynamics Corp., 481 U.S. 239, 243, 107 S.Ct. 1732, 1736, 95 L.Ed.2d 226 (1987); accord United States v. Hughes Properties, Inc., 476 U.S. 593, 600-01, 106 S.Ct. 2092, 2096-97, 90 L.Ed.2d 569 (1986). In describing this non-contingent requirement, the Supreme Court has required also that the liability be “fixed and absolute”, Hughes, 476 U.S. at 600, 106 S.Ct. at 2096 (quoting Brown v. Helvering, 291 U.S. 193, 201, 54 S.Ct. 356, 360, 78 L.Ed. 725 (1934)), and “unconditional”, id. (quoting Lucas v. North Tex. Lumber Co., 281 U.S. 11, 13, 50 S.Ct. 184, 184-85, 74 L.Ed. 668 (1930)). The issue is not the ability vel non of WTMC to pay post-petition interest on the unsecured claims. See Fahs v. Martin, 224 F.2d 387 (5th Cir.1955) (interest for which an accrual basis taxpayer is presently and unconditionally liable, but which is unlikely to be paid by reason of his insolvency, is still deductible). Rather, we must determine whether WTMC’s liability for post-petition interest is fixed, absolute, unconditional, or not"
},
{
"docid": "21145703",
"title": "",
"text": "the accrual of expenses that were fixed, determined, and certain, as for instance, the wages in our case. The services had been performed by the employees in 1964 and the liability of Kodak to pay them their wages was fixed, determined, and certain. Nothing further remained to be done to fix or make certain taxpayer’s liability in this regard, even though the wages were not yet due or payable, and, accordingly, the wages were properly accruable in 1964. The liability for the taxes on wages is an entirely different matter, because nothing occurred in 1964 to fix, determine, or establish liability of Kodak for taxes on wages, because the controlling event that would allow the taxes to be accrued had not yet occurred, namely the payment of the wages. See Oble and the above statutes and regulations. The so-called all events test is set forth in Treasury Regulation 1.461-1 in pertinent part as follows: § 1.461-1 'General rule for taxable year of deduction *!• ¥ $ $ $ (2) Taxpayer using an accrual method. * * * [A]n expense is deductible for the taxable year in which all events Time occurred which determine the fact of the liability and the amount thereof can be determined with reasonable accuracy. * * * [A]o accrual shall be made in any case i/n which all of the events have not occurred which fix the liability, * * *. [Emphasis supplied.] It will be noted that both the Anderson case and the foregoing regulation require a liability to be “fixed” and “determined” by the occurrence of 'all the events necessary to establish the fact of liability before it can be accrued and deducted in a taxable year. It is clear that the facts in the instant case do not meet the requirements of this test. The word “fix” is defined in Black’s Law Dictionary 765 (4th ed. 1968) as follows: Determine; settle; certainty and definiteness. To fasten a liability upon one. To transform a possible or contingent liability into a present and definite liability. The word “determine” is defined in Webster’s Third New International"
},
{
"docid": "1404262",
"title": "",
"text": "an item of deduction accrues is the “all events” test established by this Court in United States v. Anderson, supra [269 U.S. 422], and since reaffirmed by this Court on numerous occasions, so that it is now a fundamental principle of tax accounting. * * * [Fn. omitted.] The “all events” test, first articulated in United States v. Anderson, supra, was subsequently incorporated into the Income Tax Regulations. As regulation 1.461-1 (a) (2) and court decisions make plain, the test includes two requirements, and each requirement must be met in the taxable year for which the deduction is sought. Thriftimart, Inc., 59 T.C. 598 (1973) (appeal pending C.A. 9, Sept. 21, 1973). We therefore turn to consideration of whether the disallowed overhaul expenses were “incurred” by petitioner in the years for which their deduction is sought herein. The first requirement for the accrual of an expense in a taxable year is that “all of the events have occurred which determine the fact of the liability.” The purpose of this requirement is to protect tax revenues by insuring that a taxpayer will not take deductions for expenditures that might never occur. Mooney Aircraft, Inc. v. United States, supra. Consistent with this purpose, it has been noted that “As a general rule the existence of a contingency in the taxable year with respect to a liability or its enforcement prevents accrual. Accrual of a deduction item is permitted only in the taxable year when the obligation to pay it is unconditionally fixed.” Trinity Construction Co. v. United States, 424 F. 2d 302, 305 (C.A. 5, 1970); see also Brown v. Helvering, 291 U.S. 193 (1934); Security Flour Mills Co. v. Commissioner, 321 U.S. 281 (1944). In contending that the claimed expenses met the first requirement of the “all events” test in the taxable years, petitioner first asserts that with respect to practically all of its airframes and engines, at the end of each taxable year it was subject to an existing contractual obligation for payment of the accrued overhaul costs. We think it clear, however, that there is no merit to this"
},
{
"docid": "23327551",
"title": "",
"text": "“ministerial in nature,” 6 Cl. Ct. 250, 254 (1984). The Claims Court did not, however, make any factual findings with respect to the jfiling of claims. We conclude that, as a matter of law, the filing of a claim was necessary to create liability. General Dynamics could not avoid its obligation to pay for services after they were received by, for example, discharging the employee. If an employee were terminated after receiving covered services but before filing a claim, the taxpayer would still be obliged to reimburse that employee, App. 22 — but only in the event that the employee filed a claim form. The filing of the claim is thus a true condition precedent to liability on the part of the taxpayer. During the time that private insurance carriers provided insurance coverage for General Dynamics employees, the insurers maintained reserves for IBNR claims and deducted those reserves in the tax year in which the services were received. 6 Cl. Ct., at 252. Respondent has never sought to be treated as an insurance company-entitled to take IBNR deductions under the provisions of Subchapter L. Justice O’Connor, with whom Justice Blackmun and Justice Stevens join, dissenting. Section 446(a) of the Internal Revenue Code of 1954 provides that taxable income “shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.” The Code specifically recognizes the use of “an accrual method,” 26 U. S. C. § 446(c)(2), under which a taxpayer is permitted to deduct an expense in the year in which it is “incurred,” regardless of when it is actually paid. § 162(a). Under the “all events” test, long applied by this Court and the Internal Revenue Service, an expense may be accrued and deducted when all the events that determine the fact of liability have occurred, and the amount of the liability can be determined with reasonable accuracy. Treas. Reg. § 1.461-1, 26 CFR § 1.461-l(a)(2) (1986). Because the Court today applies a rigid version of the “all events” test that retreats from our most recent application of"
},
{
"docid": "15206765",
"title": "",
"text": "and determine the liability of the taxpayer to pay it”). Since then, the Court has described the “all events” test “established” in Anderson as “the ‘touchstone’ for determining the year in which an item of deduction accrues,” and as “a fundamental principle of tax accounting.” United States v. Consolidated Edison Co. of New York, 366 U. S. 380, 385 (1961) (citing cases). Under the Regulations, the “all events” test has two elements, each of which must be satisfied before accrual of an expense is proper. First, all the events must have occurred which establish the fact of the liability. Second, the amount must be capable of being determined “with reasonable accuracy.” Treas. Reg. § 1.446-l(c)(l)(ii). This case concerns only the first element, since the parties agree that the second is fully satisfied. Ill The Court’s cases have emphasized that “a liability does not accrue as long as it remains contingent.” Brown v. Helvering, 291 U. S. 193, 200 (1934); accord, Dixie Pine Products Co. v. Commissioner, 320 U. S. 516, 519 (1944). Thus, to satisfy the all-events test, a liability must be “final and definite in amount,” Security Flour Mills Co. v. Commissioner, 321 U. S. 281, 287 (1944), must be “fixed and absolute,” Brown v. Helvering, 291 U. S., at 201, and must be “unconditional,” Lucas v. North Texas Lumber Co., 281 U. S. 11, 13 (1930). And one may say that “the tax law requires that a deduction be deferred until ‘all the events’ have occurred that will make it fixed and certain.” Thor Power Tool Co. v. Commissioner, 439 U. S. 522, 543 (1979). A The Government argues that respondent’s liability for the progressive jackpots was not “fixed and certain,” and was not “unconditional” or “absolute,” by the end of the fiscal year, for there existed no person who could assert any claim to those funds. It takes the position, quoting Nightingale v. United States, 684 F. 2d, at 614, that the indispensable event “is the winning of the progressive jackpot by some fortunate gambler.” It says that, because respondent’s progressive jackpots had not been won at"
},
{
"docid": "23327552",
"title": "",
"text": "take IBNR deductions under the provisions of Subchapter L. Justice O’Connor, with whom Justice Blackmun and Justice Stevens join, dissenting. Section 446(a) of the Internal Revenue Code of 1954 provides that taxable income “shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.” The Code specifically recognizes the use of “an accrual method,” 26 U. S. C. § 446(c)(2), under which a taxpayer is permitted to deduct an expense in the year in which it is “incurred,” regardless of when it is actually paid. § 162(a). Under the “all events” test, long applied by this Court and the Internal Revenue Service, an expense may be accrued and deducted when all the events that determine the fact of liability have occurred, and the amount of the liability can be determined with reasonable accuracy. Treas. Reg. § 1.461-1, 26 CFR § 1.461-l(a)(2) (1986). Because the Court today applies a rigid version of the “all events” test that retreats from our most recent application of that test, and unnecessarily drives a greater wedge between tax and financial accounting methods, I respectfully dissent. This case calls for the Court to revisit the issue addressed only last Term in United States v. Hughes Properties, Inc., 476 U. S. 593 (1986). At issue in Hughes Properties was whether a casino operator utilizing the accrual method of accounting could deduct amounts guaranteed for payment on “progressive” slot machines but not yet won by a playing patron. A progressive slot machine has a jackpot whose size increases as money is gambled on the machine. Under Nevada law, a casino operator is prohibited from reducing the amount of the progressive jackpot. We concluded, therefore, that all the events had occurred that determine the fact of the casino operator’s liability despite the fact that the jackpot might not be won for as long as four years. We rejected the argument made by the United States that the casino operator’s obligation to pay the jackpot arose only upon a winning patron’s pull of the handle, even though it"
},
{
"docid": "23327546",
"title": "",
"text": "and which portion had not even been filed at the close of the 1972 tax year. The taxpayer has the burden of proving its entitlement to a deduction. Helvering v. Taylor, 293 U. S. 507, 514 (1935). Here, respondent made no showing that, as of December 31, 1972, it knew of specific claims which had been filed but which it had not yet processed. Because the taxpayer failed to demonstrate that any of the deducted reserve represented claims for which its liability was firmly established as of the close of 1972, all the events necessary to establish liability were not shown to have occurred, and therefore no deduction was permissible. This is not to say that the taxpayer was unable to forecast how many claims would be filed for medical care received during this period, and estimate the liability that would arise from those claims. Based on actuarial data, General Dynamics may have been able to make a reasonable estimate of how many claims would be filed for the last quarter of 1972. But that alone does not justify a deduction. In Brown, supra, the taxpayer, a general agent for insurance companies, sought to take a deduction for a reserve representing estimated liability for premiums to be returned on the percentage of insurance policies it anticipated would be cancelled in future years. The agent may well have been capable of estimating with a reasonable degree of accuracy the ratio of cancellation refunds to premiums already paid and establishing its reserve accordingly. Despite the “strong probability that many of the policies written during the taxable year” would be cancelled, 291 U. S., at 201, the Court held that “no liability accrues during the taxable year on account of cancellations which it is expected may occur in future years, since the events necessary to create the liability do not occur during the taxable year.” Id., at 200. A reserve based on the proposition that a particular set of events is likely to occur in the future may be an appropriate conservative accounting measure, but does not warrant a tax deduction. See American"
},
{
"docid": "23327548",
"title": "",
"text": "Automobile Assn. v. United States, supra, at 692; Lucas v. American Code Co., 280 U. S., at 452. That these estimated claims were not intended to fall within the “all events” test is further demonstrated by the fact that the Internal Revenue Code specifically permits insurance companies to deduct additions to reserves for such “incurred but not reported” (IBNR) claims. See 26 U. S. C. § 832(b)(5) (providing that an insurance company may treat as losses incurred “all unpaid losses outstanding at the end of the taxable year”); § 832(c)(4) (permitting deduction of losses incurred as defined in § 832(b)(5)). If the “all events” test permitted the deduction of an estimated reserve representing claims that were actuarially likely but not yet reported, Congress would not have needed to maintain an explicit provision that insurance companies could deduct such reserves. General Dynamics did not show that its liability as to any medical care claims was firmly established as of the close of the 1972 tax year, and is therefore entitled to no deduction. The judgment of the Court of Appeals is Reversed. Respondents filed a consolidated federal income tax return for 1972, the year at issue here. We therefore treat them as a single entity. The United States did not seek review of whether the amount of liability in this case could be determined with reasonable accuracy. See Pet. for Cert. 13, n. 2. The regulation in force in 1972 was identical to the present version. See 26 CFR § 1.461-1(a)(2) (1972). The “all events” test has been incorporated into the Internal Revenue Code by the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat 598, 607, 26 U. S. C. § 461(h)(4) (1982 ed., Supp. III). Section 461(h) imposed limits on the application of the test, providing that “in determining whether an amount has been incurred with respect to any item during any taxable year, the all events test shall not be treated as met any earlier than when economic performance with respect to such item occurs.” § 461(h)(1). The pertinent portions of the 1984 amendments were retained in"
}
]
|
169005 | out-of-pocket damages are not the only permissible measure of recovery.” CAMOFI Master LDC v. Riptide Worldwide, Inc., 10 CIV. 4020(CM)(JLC), 2012 WL 6766767, at *14 (S.D.N.Y. Dec. 17, 2012). In order to accommodate “the wide variety of factual predicates to § 10(b) claims, courts have utilized their discretion to endorse several different compensatory damages theories”’ including gross economic loss and benefit of the bargain damages. Panos v. Island Gem Enterprises, Ltd., N.V., 880 F.Supp. 169, 176 (S.D.N.Y.1995) (citing Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 154-55, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972) (disgorgement); Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971) (out-of-pocket damages); Osofsky v. Zipf 645 F.2d 107, 114 (2d Cir.1981) (benefit-of-the-bargain damages); REDACTED Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d 38, 49 & n. 21 (2d Cir.1978) (gross economic loss or rescissionary damages)). “Consequential damages may include out-of-pocket expenses stemming from related litigation.” The Ltd., Inc. v. McCrory Corp., 683 F.Supp. 387, 393 (S.D.N.Y.1988). Gross economic loss or “rescissionary” damages “are based on the difference between the price paid [for the security] and the price received on resale, rather than on the excess of the purchase price over the actual value of the stock.” Barrows v. Forest Labs., Inc., 742 F.2d 54, 57 n. 7 (2d Cir.1984) (citing Clark v. John Lamula Investors, Inc., 583 F.2d 594, 603-04 (2d Cir.1978)). Benefit-of-the-bargain damages measure the “difference between the value | [
{
"docid": "22332013",
"title": "",
"text": "the date of the trial. The jury found that the securities were worthless on the latter two dates but determined that as of the date of purchase the preferred shares had a value equal to the purchase price. The common stock was valued at $.60 per share. On the basis of these findings plaintiffs’ damages would be limited to $320.00. The lower court, however, disregarded the jury finding choosing rather to fix the relevant date for determining the loss as of the date of the plaintiffs’ discovery of the fraud. Inasmuch as the jury had not been requested to fix the value on this latter date, the court exercised its reserved power under Fed. R.Civ.P. 49 and found that “on January 25, 1963, when plaintiffs were charged with notice of said defendants fraud this stock had a reasonable and actual value of less than 25 cents per share.” The plaintiffs were thus allowed a recovery of $15,600.00. The defendants contend that the proper measure of damages is the difference between the amount plaintiffs paid for their stock in 1961 and its actual value at that time. As support for this position defendants cite Estate Counseling Service, Inc. v. Merrill, Lynch, Pierce, Fenner and Smith, Inc., 303 F.2d 527 (10th Cir. 1962). In that case this court was concerned with the distinction between “benefit of the bargain” and “out of pocket” damages. In adopting the latter view, the specific question of the appropriate date for ascertaining such damages was not before the court. Our statement that “the question is not what the plaintiff might have gained, but what he has lost by being deceived into the purchase,” does, however, point to the crux of the issue here presented. The plaintiffs have incurred a loss as a result of the fraudulent practices of the defendants in the sale of securities in violation of the securities laws. The extent of this loss will not necessarily be fully known until some time after the original transaction. This follows because the same fraudulent practices that have induced the plaintiffs’ purchase of the securities also operate"
}
]
| [
{
"docid": "3303579",
"title": "",
"text": "antagonistic to the claims of class members who held their stock until after the class period ended and may recover their maximum damages by proving the stock’s price continued inflated until publication of the Wall Street Journal’s story. Similarly defendants urge that plaintiff is an inadequate representative for purchasers who did not sell until after disclosure because he has no incentive — in fact, a disincentive — to show they were damaged. Defendants’ argument evidently rests on an assumption that the court will apply an out-of-pocket losses measure for recovery in this action. The recovery measure, however, has not yet been determined. “Two theories of damages for defrauded buyers have been used in this circuit: out of pocket losses and the difference between purchase price and subsequent resale price.” Clark v. John Lamula Investors, Inc., 583 F.2d 594, 603 (2d Cir. 1978). Courts in this circuit generally have reserved the second measure, termed “alternatively “rescission damages” or “gross economic loss,” see Rolf v. Blyth Eastman Dillon & Co., 570 F.2d 38, 49 & n.21 (2d Cir. 1978), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1979), for broker-fraud cases, e. g., Clark v. John Lamula Investors, Inc., supra; Chasins v. Smith, Barney & Co., 438 F.2d 1167 (2d Cir. 1970); Marbury Management Inc. v. Kohn, 470 F.Supp. 509, 516 (S.D.N.Y.1979). The measure requires proof that the purchasers would not have purchased the stock at any price since “the evil is not the price at which [plaintiffs] bought but the fact of being induced to buy.” Chasins v. Smith, Barney & Co., supra, 438 F.2d at 1173. The out-of-pocket measure derived from recovery in the common law action of deceit is “theoretically preferred,” Bonime v. Doyle, 416 F.Supp. 1372, 1384 (S.D.N.Y.1976), aff’d mem., 556 F.2d 554 (2d Cir. 1977), and usually applied in Rule 10b-5 market fraud cases, e. g., Elkind v. Liggett & Myers, Inc., 472 F.Supp. 123, 129 (S.D.N.Y.1978). Although rescission damages have been termed “entirely inappropriate” for Rule 10b-5 market fraud class actions, Bonime v. Doyle, supra, 416 F.Supp. at 1385-86, accord, Green v. Occidental"
},
{
"docid": "5919637",
"title": "",
"text": "judgment on Litton’s claim for disgorgement of all profits earned from the sale and purchase of Itek securities on the ground that such profits previously have been disgorged to the SEC. Litton contends that disgorgement is an appropriate measure of damages in a private action under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982) [the “1934 Act”] and Rule 10b-5 promulgated thereunder despite any prior disgorgement to the SEC. Alternatively, Litton argues that the Bank Leu defendants did not disgorge the full extent of their profits to the SEC, thereby preserving the availability of disgorgement as a measure of damages in this action. The traditional measure of damages for a violation of Section 10(b) and Rule 10b-5 is the out-of-pocket rule as developed in the tort action of deceit. See, e.g., Huddleston v. Herman & MacLean, 640 F.2d 534, 555 (5th Cir.1981), aff'd in part, rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983); Blackie v. Barrack, 524 F.2d 891, 909 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); Levine v. Seilson, Inc., 439 F. 2d 328, 334 (2d Cir. 1971). With respect to defrauded sellers under Rule 10b-5, the Supreme Court has recognized that the proper measure of out-of-pocket loss is the difference between the value of what the seller received and the value of what the seller would have received had there been no fraudulent conduct. Affiliated Ute Citizens v. United States, 406 U.S. 128, 155, 92 S.Ct. 1456, 1473, 31 L.Ed.2d 741 (1972); see also Alley v. Miramon, 614 F.2d 1372, 1387 (5th Cir. 1980) (“As a general rule, the correct measure of a seller’s damages in a 10b-5 action is the difference between the price received and the value of the securities at the time of the fraudulent transaction.”). However, the Supreme Court recognized one major exception to this customary measure of damages. Where the defrauding purchaser receives more than the seller’s actual loss, the proper measure of damages shall be the amount of the purchaser’s profits."
},
{
"docid": "6505372",
"title": "",
"text": "measure of “actual damages” is the plaintiff's out-of-pocket losses. See, e.g., Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 801-802 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973) and Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971). The Court in Osofsky v. Zipf, 645 F.2d 107, 114 (2d Cir.1981) held that benefit-of-the-bargain damages would best compensate a defrauded seller of securities in a tender offer situation because the “amount of such damages— the difference between what was represented as coming to the ... shareholders and what they actually received — [could] be determined with certainty” and because limiting recovery to out-of-pocket damages would effectively preclude adequate redress in similar cases. But the Court made it quite clear that recovery based upon the representations made by defendants to a defrauded securities buyer as to the value of the purchase would be impermissibly speculative. Id. at 112. Accordingly, the demand for benefit-of-the-bargain damages in the first and fourth claims is stricken. C. Statute of Limitations. The applicable statute of limitations for plaintiffs' common law breach of contract claim is six years. N.Y.Civ.Prac. Law and Rules § 213(2) (McKinney 1988). Under New York law, the cause of action in breach of contract cases “accrues and the statute of limitations begins to run from the time of the breach.” John J. Kassner & Co. v. City of New York, 46 N.Y.2d 544, 550, 415 N.Y.S.2d 785, 788, 389 N.E.2d 99, 102 (1979). Accord Marathon Enterprises v. Feinberg, 595 F.Supp. 368 (S.D.N.Y.1984); Bernstein v. LaRue, 120 A.D.2d 476, 501 N.Y.S.2d 896, 897 (2d Dep’t 1986). Since, in general, a third-party beneficiary is subject to any defenses which could be asserted against the promisee, the six-year statute of limitations applies to plaintiffs’ contract claim. National Benefit Fund for Hospital and Health Care Employees v. Presbyterian Hospital in the City of New York, 448 F.Supp. 136, 138-39 (S.D.N.Y.1978) and U.S. v. Industrial Crane & Manufacturing Corp., 492 F.2d 772, 774 (5th Cir.1974). The Medcare and Infemed appraisals were delivered by McGraw-Hill on or about December 4, 1980 and"
},
{
"docid": "17004251",
"title": "",
"text": "the minimal requirements of service by mail permitted by Rule 5(b). Here, plaintiffs have completely disregarded the requirements of Rule 5 and are therefore not entitled to judgment based on claims in their amended complaint, particularly since the amended complaint contains a new claim seeking treble damages and attorney’s fees. Since there is no legal basis for considering EMI and Zinn’s amended complaint, their damages in this proceeding will be based on the claims asserted in their original complaint. D. Measure of Damages Although damages in securities fraud actions may be calculated in several different ways, they ordinarily are based on out-of-pocket losses — that is, the difference between the purchase price and true value of the stock, or, if bought and sold, the gross economic loss adjusted to reflect that portion of loss attributed to market and other factors. Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 297 (3d Cir.1991) (out-of-pocket expenses most common method); Astor Chauffeured Limousine Co. v. Runnfeldt Inv Carp., 910 F.2d 1540, 1551 (7th Cir.1990) (same); Pelletier v. Stuart-James Co., 863 F.2d 1550, 1557 (11th Cir.1989) (same); Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d 38, 48-50 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978); Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971); see also Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436-38 (9th Cir.1987) (defining out-of-pocket expenses). Out-of-pocket losses is also the rule for dam ages caused by common law fraud. See First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 768 (2d Cir.1994), cert. denied,—U.S.-, 115 S.Ct. 728, 130 L.Ed.2d 632 (1995). Since RICO plaintiffs are only entitled to damages proximately caused by the predicate acts, American Nat. Bank and Trust Co. v. Haroco, Inc., 473 U.S. 606, 609, 105 S.Ct. 3291, 3292, 87 L.Ed.2d 437 (1985), and the predicate acts claimed here are for securities fraud, plaintiffs’ RICO damages are identical to their securities fraud damages. The class plaintiffs claim damages with respect to the purchase of Crazy Eddie securities between the initial public offering on September 13, 1984"
},
{
"docid": "3303578",
"title": "",
"text": "(S.D.N.Y.1978) (reliance on another’s expertise, not the stock’s market performance), Smith has not supported his assertion that plaintiff is so “sophisticated” an investor that his claim cannot be found to be typical, nor has he persuasively shown that a plaintiff’s sophistication necessarily renders his claim atypical. Compare Garonzik v. Shearson Hayden Stone Inc., 574 F.2d 1220, 1221 (7th Cir. 1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 39 (1979) (denial of representative status to plaintiff who admitted his sophistication as investor not abuse of discretion), with Feder v. Harrington, 52 F.R.D. 178, 183-84 (S.D.N.Y.1970) (claim not rendered atypical by plaintiff’s sophistication). The selling defendants make a stronger argument against plaintiff’s representative status. Focusing on the fact that plaintiff sold all his Friendly stock three months before the class period closed, they contend that plaintiff must show defendants’ acts or omissions had ceased to inflate the price of Friendly stock by the time of his last sale if he is to recover damages. Thus, defendants reason, plaintiff’s claim is not typical of, but antagonistic to the claims of class members who held their stock until after the class period ended and may recover their maximum damages by proving the stock’s price continued inflated until publication of the Wall Street Journal’s story. Similarly defendants urge that plaintiff is an inadequate representative for purchasers who did not sell until after disclosure because he has no incentive — in fact, a disincentive — to show they were damaged. Defendants’ argument evidently rests on an assumption that the court will apply an out-of-pocket losses measure for recovery in this action. The recovery measure, however, has not yet been determined. “Two theories of damages for defrauded buyers have been used in this circuit: out of pocket losses and the difference between purchase price and subsequent resale price.” Clark v. John Lamula Investors, Inc., 583 F.2d 594, 603 (2d Cir. 1978). Courts in this circuit generally have reserved the second measure, termed “alternatively “rescission damages” or “gross economic loss,” see Rolf v. Blyth Eastman Dillon & Co., 570 F.2d 38, 49 & n.21 (2d"
},
{
"docid": "19851697",
"title": "",
"text": "to generate sufficient pre-tax income to allow amortization of the allocated goodwill over 14 years. At the conclusion of the correspondence, the SEC was content to require UPAC and Polycast to agree that they would credit any recovery from the litigation to goodwill. These declarations are admissible against plaintiffs under Rule 801(d)(2), F.R.Evid. However, they fall well short of establishing as a matter of law that plaintiffs suffered no cognizable economic loss, - particularly since economic loss in section 10(b) cases may in certain circumstances be measured by “out-of-pocket loss, the benefit of the bargain, or some other appropriate standard.” Osofsky v. Zipf 645 F.2d 107, 111 (2d Cir.1981). Conceptually at least, a party’s admissions may demonstrate beyond cavil that it has suffered no economic loss; but plaintiffs’ explanations for and interpretations of the declarations upon which defendants rely pose triable issues. Defendants also note that Polycast sold three of Plastics’ businesses for amounts totalling $91 million, and indicated to the SEC that it had received offers for others. Defendants say that accordingly the total proceeds of the divestiture of Plastics’ businesses “would far exceed the price Poly-cast paid for Plasties,” main brief at 40, so that Polycast suffered no loss. Plaintiffs respond that these gross sales prices were acquired at the cost of plaintiffs assuming “immense liabilities” under the SPA, such as unfunded pension liabilities (estimated at approximately $75 million before tax or $54 million net of tax) and environmental liabilities (estimated at $13 million). Defendants reply that nonetheless, Polycast has realized a net gain (that is, the price exceeded the cash cost and the liabilities assumed) on the businesses it has sold. Reply brief at 21 n. 13. I decline to hold this record or in response to these arguments that plaintiffs cannot establish a cognizable economic loss as a matter of law. Defendants confine their analysis to out-of-pocket loss, but this is not an exclusive measure of compensatory damages, as the Second Circuit held in Osofsky. Benefit-of-the-bargain is a possible alternative measure of compensatory damages. In Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971), Judge"
},
{
"docid": "17016728",
"title": "",
"text": "$926,346.07 for Rule 10b-5 and fraud liability. This award exactly equals the amount of cash Freschi invested plus the extra tax Freschi owed because of the Internal Revenue Service’s (“IRS”) initial disallowance of Freschi’s deductions for 1977 and 1978. It thus appears likely that the jury awarded Freschi benefit-of-the-bargain damages, contrary to the court’s instructions. The jury’s extensive note on the verdict form was also not based on any instructions given. Whatever the reason for the award, however, it was excessive for the reasons set forth below and must be set aside. As the jury was instructed, the Securities Exchange Act of 1934 limits recovery to “actual damages.” 15 U.S.C. § 78bb(a). The statute does not define this term, and its application to complex fact patterns has raised difficult questions. Our Court of Appeals has explained that the purpose of § 78bb(a) is “to compensate civil plaintiffs for economic loss suffered as a result of wrongs committed in violation of the 1934 Act____” Osofsky v. Zipf 645 F.2d 107, 111 (2d Cir.1981). The Court has held that, absent special circumstances that are not present in the instant ease, see Osofsky, 645 F.2d at 111-14, the actual damages of a defrauded purchaser are his out-of-pocket losses — i.e., the difference between the price he paid and the value of what he received.” Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971). In addition, a Rule 10b-5 plaintiff may recover consequential damages if he can “establish the causal nexus with a good deal of certainty.” Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 803 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973). The parties agree that Freschi’s $266,500 investment qualifies as part of his out-of-pocket damages. Freschi contends that he should also be awarded the $659,-846.07 of extra taxes he had to pay when the IRS disallowed the deductions he took for the Grand Coal investment on his 1977 and 1978 taxes. An award of Freschi’s damages for the tax deductions he had been promised, however, would constitute a benefit-of-the:bargain damage measure, which, as"
},
{
"docid": "15108945",
"title": "",
"text": "at various times by carefully evaluating potentially thousands of documents and the testimony of many witnesses, to no certain end. The determination of whether the classes sustained damages and to what degree would entail additional litigation risks and burdens. The measure of damages in a Section 10(b) action is the out-of-pocket loss suffered by each aggrieved shareholder. Both parties would have to utilize, at great expense, experts to hypothesize what the fair value of the stock would have been in the absence of the claimed fraud. See Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 155, 92 S.Ct. 1456, 1473, 31 L.Ed.2d 741 (1972); Austin v. Loftsgaarden, 675 F.2d 168, 180 (8th Cir.1982); Sirota v. Solitron Devices, Inc., 673 F.2d 566, 577-78 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 86, 74 L.Ed.2d 80 (1982). Indeed, because the securities of other pharmaceutical companies ostensibly declined in value during the relevant time period, the classes’ losses arguably stemmed, in part or in whole, from external market conditions, not the conduct of the defendants. See Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 49 n. 22 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). “[I]t is virtually impossible to predict with any certainty which testimony would be credited, and ultimately, which damages would be found to have been caused by actionable, rather than the myriad nonactionable factors such as general market conditions.” In re Warner Communications Securities Litigation, 618 F.Supp. 735, 744-45 (S.D.N.Y.1985), aff'd, 798 F.2d 35 (2d Cir.1986). If the plaintiffs were to persuade a jury that the defendants’ fraud alone caused their economic injuries, however, the defendants’ exposure would be considerable. The plaintiffs’ experts have assessed the classes’ total damages at $120 million. Second, the reaction of the class to the proffered settlement is perhaps the most significant factor to be weighed in considering its adequacy, particularly when the relief is expressed in monetary terms. The Court ordered that class members be notified by mail and publication, and not one has lodged an objection to the settlement’s terms."
},
{
"docid": "19851698",
"title": "",
"text": "proceeds of the divestiture of Plastics’ businesses “would far exceed the price Poly-cast paid for Plasties,” main brief at 40, so that Polycast suffered no loss. Plaintiffs respond that these gross sales prices were acquired at the cost of plaintiffs assuming “immense liabilities” under the SPA, such as unfunded pension liabilities (estimated at approximately $75 million before tax or $54 million net of tax) and environmental liabilities (estimated at $13 million). Defendants reply that nonetheless, Polycast has realized a net gain (that is, the price exceeded the cash cost and the liabilities assumed) on the businesses it has sold. Reply brief at 21 n. 13. I decline to hold this record or in response to these arguments that plaintiffs cannot establish a cognizable economic loss as a matter of law. Defendants confine their analysis to out-of-pocket loss, but this is not an exclusive measure of compensatory damages, as the Second Circuit held in Osofsky. Benefit-of-the-bargain is a possible alternative measure of compensatory damages. In Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971), Judge Friendly said in dictum that in section 10(b) cases a defrauded buyer of securities “is entitled to recover only the excess of what he paid over the value of what he got, not, as some other courts had held, the difference between the value of what' he got and what it was represented he would be getting.” More recently the Second Circuit has extended the benefit-of-the-bargain measure of damages under the 1934 Act .to the “limited situation” where “misrepresentation is made in the tender offer and proxy solicitation materials as to the consideration to be forthcoming upon an intended merger.” Osofsky at 114. But see Freschi v. Grand Coal Venture, 588 F.Supp. 1257, 1259 (S.D.N.Y.1984) (limiting Osofsky to its facts and applying out-of-pocket measure of loss to section 10(b) claim). On this motion for summary judgment, I need not further consider the present state of appellate authority on the measures of compensatory damages available to buyers under the 1934 Act because'plaintiffs at bar also assert claims for common law fraud. In Osofsky the Second Circuit"
},
{
"docid": "6071042",
"title": "",
"text": "clarity, claim loss and damages measured by the difference between purchase price and resale value of the bonds. Decisions following Chasins further indicate that the rescissory theory may encompass plaintiffs’ claims. In Clark v. John Lamula Investors, Inc., 583 F.2d 594 (2d Cir.1978), the court affirmed a judgment for plaintiff based on a rescissory measure of damages. The defendant broker had recommended unsuitably risky securities and omitted material facts about them with intent to defraud. See 583 F.2d at 597-98. Relying on Chasins, the court approved an award of damages for the difference between the plaintiff’s purchase price and subsequent resale price. Id. at 603. Sim ilarly, in Garnatz v. Stifel, Nicolaus & Co., 559 F.2d 1357 (8th Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1578, 55 L.Ed.2d 801 (1978), the Eighth Circuit approved a rescissory measure of damages when the gravamen of the action “was not whether [plaintiff] bought the bonds for a fair price, but that he bought at all.” 559 F.2d at 1360. A number of other cases have recognized the Chasins measure when no out-of-pocket loss has occurred. We conclude, therefore, that the Exhibit 6 plaintiffs adequately state a variant of the Chasins broker fraud/unsuitability claims for rescisso-ry relief in Count III. Defendants, however, pose yet another obstacle to any recovery by plaintiffs. They argue that the rescissory award here would amount to nothing after adjustment for the decline in value of the bonds unrelated to the purported fraud, as required by Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). Defendants misread Rolf. The Rolf formula seeks to filter out losses due to ordinary market conditions from losses due to misconduct. 570 F.2d at 49 & n. 22. In Rolf, the Court suggested this could be accomplished by subtracting the overall market decline — measured by some index such as the Dow Jones industrial average or Standard & Poor’s index — from the decline in the plaintiffs portfolio. See id. Defendants’ simplification of this concept is that the economic"
},
{
"docid": "17004290",
"title": "",
"text": "Mary Kay Kane, Federal Practice and Procedure § 2663 at (1983) (endorsing Ninth Circuit opinion). . Rule 5(a) provides in relevant part that: Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint ... shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4. . Other theories of calculating damages include: disgorgement of illegal profits see Affiliated Ute Citizens v. United States, 406 U.S. 128, 154-55, 92 S.Ct. 1456, 1472-73, 31 L.Ed.2d 741 (1972), benefit of the bargain expenses Osofsky v. Zipf, 645 F.2d 107, 114 (2d Cir.1981) and consequential damages Zeller v. Bogue Electric Mfg. Corp., 476 F.2d 795, 803 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973). See Panos v. Island Gem Enterprises, 880 F.Supp. 169, 175 (S.D.N.Y.1995) (discussing alternative theories for awarding damages in securities fraud actions but stating that in general plaintiffs receive out-of-pocket losses). . Implicit in this finding is the .assumption that New York substantive law applies to this issue, at least with respect to the fraud claims in their entirety and the determination of pre-judgment interest below. Since no party has raised any choice of law issue, the parties, by their conduct, have acquiesced to the application of New York substantive law. Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 137 (2d Cir.1991). Because the plaintiffs are entitled to pre-judgment interest on their claims of common law fraud, I need not decide whether pre-judgment interest should be awarded on claims for negligent misrepresentation, which, in the case of- the class plaintiffs, would require consideration of the law of states other than New York. See In Crazy Eddie Sec. Ditig., 135 F.R.D. 39, 41 (E.D.N.Y.1991). . The Second Circuit has applied federal law in determining the set-off available for partial settlements in"
},
{
"docid": "5919638",
"title": "",
"text": "Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); Levine v. Seilson, Inc., 439 F. 2d 328, 334 (2d Cir. 1971). With respect to defrauded sellers under Rule 10b-5, the Supreme Court has recognized that the proper measure of out-of-pocket loss is the difference between the value of what the seller received and the value of what the seller would have received had there been no fraudulent conduct. Affiliated Ute Citizens v. United States, 406 U.S. 128, 155, 92 S.Ct. 1456, 1473, 31 L.Ed.2d 741 (1972); see also Alley v. Miramon, 614 F.2d 1372, 1387 (5th Cir. 1980) (“As a general rule, the correct measure of a seller’s damages in a 10b-5 action is the difference between the price received and the value of the securities at the time of the fraudulent transaction.”). However, the Supreme Court recognized one major exception to this customary measure of damages. Where the defrauding purchaser receives more than the seller’s actual loss, the proper measure of damages shall be the amount of the purchaser’s profits. Affiliated Ute Citizens, 406 U.S. at 155, 92 S.Ct. at 1473. The origin of the disgorgement measure of damages for defrauded sellers of securities endorsed by the Supreme Court in Affiliated Ute Citizens is Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). In Janigan, the First Circuit recognized that the profit made by a purchaser who acquired property by fraud should be deemed the proximate consequence of the fraud since the profit would not have accrued absent the fraudulently induced sale. 344 F.2d at 786. Although the Janigan disgorgement measure of damages has been applied primarily in the context of a defrauded seller, the Second Circuit has expressly rejected any such limitation. See Zeller v. Bogue Elec. Mfg. Corp., 476 F.2d 795, 802 (2d Cir.1973). Other circuits have similarly recognized that disgorgement principles apply equally to an innocent party induced to purchase securities. See, e.g., Pidcock v. Sunnyland America, Inc., 854 F.2d 443, 447 n. 7 (11th Cir.1988); Hackbart v. Holmes, 675 F.2d"
},
{
"docid": "500056",
"title": "",
"text": "parties. The Barrows contend that they received 9,311 additional shares; appellees contend that the Barrows received 12,177 additional shares including stock dividends. The dispute is not material to this appeal. . Several shareholder class action suits against Forest, based on the misstatement of Forest's financial condition, were litigated before Judge Motley and eventually resulted in a settlement. Appellants opted out of those actions. . Joint Appendix (\"J.A.”) 1568. . Memorandum and Order of May 19, 1981 (J.A. 379-386). . Id., pp. 6-7 (J.A. 384-385). . Memorandum and Order of September 25, 1981, p. 2 (J.A. 642). . Although the parties have referred to the damages permitted by the district court as \"out-of-pocket\" damages, in fact they are more correctly characterized as \"gross economic loss” (also referred to as recissionary damages), since they are based on the difference between the price paid and the price received on resale, rather than on the excess of the purchase price over the actual value of the stock. See generally Clark v. John Lamula Investors, Inc., 583 F.2d 594, 603-604 (2d Cir.1978) (recissionary damages); Tucker v. Arthur Andersen & Co., 67 F.R.D. 468, 482 (S.D.N.Y.1975) (out-of-pocket damages). . See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (leave to amend may be denied based on \"undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.”). . Memorandum and Order of May 19, 1981, pp. 1-2 (J.A. 379-80). . Memorandum and Order of September 25, 1981, p. 2 (J.A. 642). . Appellants have identified no reason, apart from the sale of their Forest stock in 1980, why their new theories could not have been advanced at an earlier point in the litigation or, indeed, in the original complaint. Although the sale of their stock explains why their original theories of relief were no longer viable, it does not explain why the new theories could not have been presented in the"
},
{
"docid": "20470542",
"title": "",
"text": "element of loss causation because it is “among the circumstances constituting fraud.” Katyle . v. Penn Nat’l Gaming, Inc., 637 F.3d 462, 471 & n. 5 (4th Cir.2011) (internal quotations omitted). The Fifth Circuit, in contrast, has held that only the requirements of Rule 8(a)(2) apply, relying upon the fact that the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), construed Dura in formulating its plausibility standard. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 256-58 (5th Cir.2009). And the Ninth Circuit has recognized that ambiguity exists regarding which pleading standard applies, but has found it unnecessary to resolve which standard applies because in each ease where it could address the issue, either pleading standard was satisfied. See WPP Lux. Gamma Three Sarl v. Spot Runner, Inc., 655 F.3d 1039, 1053-1054 (9th Cir.2011); In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056 (9th Cir.2008). Because we find that the price fluctuations here would not rebut an inference of economic loss under either standard, we, like the Ninth Circuit, find it unnecessary to resolve this issue at this time. Traditionally, economic loss in Section 10(b) cases has been determined by use of the “out-of-pocket” measure for damages. Under that measure, “a defrauded buyer of securities is entitled to recover only the excess of what he paid over the value of what he got.” Levine v. Seilon, 439 F.2d 328, 334 (2d Cir.1971) (Friendly, J.). In other words, damages “consist! ] of the difference between the price paid and the ‘value’ of the stock when bought.” Elkind v. Liggett & Myers, Inc., 635 F.2d 156, 168 (2d Cir.1980). The Supreme Court adopted the out-of-pocket measure of damages in Affiliated Ute Citizens v. United States, 406 U.S. 128, 155, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). Referring to 15 U.S.C. § 78bb(a)(l), which limits recovery to “actual damages” for violations of the Securities Exchange Act of 1934, the Supreme Court held that “the correct measure of damages under § 28 of the Act, 15 U.S.C. § 78bb(a), is the difference between the"
},
{
"docid": "7237000",
"title": "",
"text": "although inventive, does not withstand scrutiny. The out-of-pocket measure of damages permits Quintel to recover the difference between what it paid and what it received. Levine v. Seilon, Inc., supra, 439 F.2d at 334. Quintel invested $4,100,000 and received back $4,100,000, plus $2,100,000 in interest when it settled with the general partners. The only expenses for which Quintel has not received reimbursement, and, therefore, its only out-of-pocket loss, are the fees it paid Citibank and Alperstein which total $617,-500. Even if part of Quintel’s investment was used to purchase something it did not receive, Quintel has been fully compensated by the return of what it paid plus interest. There is no difference between the value of what it paid and what it received, regardless of the value of the Flag investment at the time of purchase. Therefore, Quintel has no out-of-pocket loss other than the unreimbursed fees. Quintel argues that it is entitled to recover the profit obtained as a result of the fraudulent use of its money. In addition to the usual measure of damages, defrauders will be required to disgorge windfall profits. See Zeller v. Bogue Electric Manufacturing Corporation, supra; Janigan v. Taylor, 344 F.2d 781, 786-87 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965); cf Affiliated Ute Citizens v. United States, 406 U.S. 128, 154-55, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). In Zeller, the Court of Appeals held that the repudiation of the benefit of the bargain measure of damages for defrauded buyers in Levine v. Seilon, Inc., supra, did not bar a defrauded buyer from recovering windfall profits, stating: Such repudiation does not necessarily call for a rule that, if a fraudulent seller can be shown to have made a windfall profit, principles of the law of restitution do not require that he be made to disgorge it. See 6 Loss, Securities Regulation 3923. (Supp.1969). The reason why the remedy has been applied for the benefit of defrauded sellers but not of buyers is not any decisive legal difference by the difficulty generally confronting the defrauded buyer in showing"
},
{
"docid": "6505371",
"title": "",
"text": "Strike the Demand for Benefit-of-the-Bargain Damages on the Fraud claims. Defendant McGraw-Hill moves to strike the demand for benefit-of-the-bargain damages pursuant to Rule 12(f) of the Federal Rules of Civil Procedure on the ground that plaintiffs may recover only out-of-pocket damages as a matter of law. As plaintiffs concede, a plaintiff alleging common law fraud under New York law may recover only out-of-pocket damages. See Ostano Commerzanstalt v. Telewide Systems, Inc., 794 F.2d 763, 766 (2d Cir.1986); Nager Electric Co., Inc. v. E.J. Electric Installation Co., Inc., 128 A.D.2d 846, 847, 513 N.Y.S.2d 766, 767 (2d Dep't 1987); Clearview Concrete Products Corp. v. S. Charles Gherardi, Inc., 88 A.D.2d 461, 467-68, 453 N.Y.S.2d 750, 755 (2d Dep’t 1982). This court therefore orders stricken plaintiffs’ demand for benefit-of-the-bargain damages in their fifth claim. The availability of benefit-of-the bargain damages for plaintiffs’ federal securities law claims is governed by § 28(a) of the Securities and Exchange Act of 1934, codified at 15 U.S.C. § 78bb(a), which provides for recovery of “actual damages.” In most circumstances, the proper measure of “actual damages” is the plaintiff's out-of-pocket losses. See, e.g., Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 801-802 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973) and Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971). The Court in Osofsky v. Zipf, 645 F.2d 107, 114 (2d Cir.1981) held that benefit-of-the-bargain damages would best compensate a defrauded seller of securities in a tender offer situation because the “amount of such damages— the difference between what was represented as coming to the ... shareholders and what they actually received — [could] be determined with certainty” and because limiting recovery to out-of-pocket damages would effectively preclude adequate redress in similar cases. But the Court made it quite clear that recovery based upon the representations made by defendants to a defrauded securities buyer as to the value of the purchase would be impermissibly speculative. Id. at 112. Accordingly, the demand for benefit-of-the-bargain damages in the first and fourth claims is stricken. C. Statute of Limitations. The applicable statute"
},
{
"docid": "20470543",
"title": "",
"text": "like the Ninth Circuit, find it unnecessary to resolve this issue at this time. Traditionally, economic loss in Section 10(b) cases has been determined by use of the “out-of-pocket” measure for damages. Under that measure, “a defrauded buyer of securities is entitled to recover only the excess of what he paid over the value of what he got.” Levine v. Seilon, 439 F.2d 328, 334 (2d Cir.1971) (Friendly, J.). In other words, damages “consist! ] of the difference between the price paid and the ‘value’ of the stock when bought.” Elkind v. Liggett & Myers, Inc., 635 F.2d 156, 168 (2d Cir.1980). The Supreme Court adopted the out-of-pocket measure of damages in Affiliated Ute Citizens v. United States, 406 U.S. 128, 155, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972). Referring to 15 U.S.C. § 78bb(a)(l), which limits recovery to “actual damages” for violations of the Securities Exchange Act of 1934, the Supreme Court held that “the correct measure of damages under § 28 of the Act, 15 U.S.C. § 78bb(a), is the difference between the fair value of all that the [plaintiff] received and the fair value of what he would have received had there been no fraudulent conduct.” Id. In the Private Securities Litigation Reform Act of 1995 (“PSLRA”), Pub.L. No. 104-67, 109 Stat. 737 (1995), Congress included a “bounce back” provision that caps the amount of damages available in a securities fraud action. The provision states that in any private action ... in which the plaintiff seeks to establish damages by reference to the market price of a security, the award of damages to the plaintiff shall not exceed the difference between the purchase or sale price paid ... by the plaintiff for the subject security and the mean trading price of that security during the 90-day period beginning on the date on which the information correcting the misstatement or omission that is the basis for the action is disseminated to the market. 15 U.S.C. § 78u-4(e)(l). The provision further defines “mean trading price” as “an average of the daily trading price of that security, determined as of"
},
{
"docid": "1254893",
"title": "",
"text": "expected fruits of an unreal ized speculation’.” Sigafus v. Porter, 179 U.S. 116, 125, 21 S.Ct. 34, 37, 45 L.Ed. 113 (1900). This fundamental rule has been adopted by the federal courts as the basic measure of damages under 10(b) and Rule 10b-5. Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972); Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965); Levine v. Seilon, Inc., 439 F.2d 328 (2nd Cir. 1971); Rochez Bros. v. Rhoades, 491 F.2d 402 (3rd Cir. 1974); Wolf v. Frank, 477 F.2d 467 (5th Cir. 1973) ; Garnatz v. Stifel, Nicolaus & Co., Inc., 559 F.2d 1357 (8th Cir. 1977); Madigan, Inc. v. Goodman, 498 F.2d 233 (7th Cir. 1974) ; Foster v. Financial Technology, Inc., 517 F.2d 1068 (9th Cir. 1975); Richardson v. MacArthur, 451 F.2d 35 (10th Cir. 1971). The Court in Harris v. American Investment Co., 523 F.2d 200 (8th Cir. 1975) notes the origins of the out-of-pocket rule and refers to Note, Measurement of Damages in Private Actions under Rule 10b-5, 1968 Was.U.L.Q. 165, 172, on the difference between the two measures of damages: [The out-of-pocket rule] allows recovery of the difference between the actual value of what the injured party gave and • what he received. In contrast with restitution damages, the plaintiff recovers what he has lost, rather than what the defendant has gained. The injured investor is given nothing for the loss of benefit that he would have enjoyed had the defendant’s representations been true. Consequential damages are also recoverable in a securities case, as they are at common law for fraud, if the defrauded buyer can establish the requisite causal nexus with a good deal of certainty. Zeller v. Bogue Electric Mfg. Corp., 476 F.2d 795 (2nd Cir. 1973). Plaintiffs in the case at bar have not introduced evidence from which reasonable men could conclude that consequential damages were suffered. Conceivably plaintiffs might have brought their case within the rule followed by the Eighth Circuit in Garnatz v. Stifel, Nicolaus & Co., Inc., 559 F.2d 1357 (8th Cir. 1977)."
},
{
"docid": "23536375",
"title": "",
"text": "trial. 2. Risk in Establishing Causation/Damages Even if plaintiffs are successful in establishing that defendants intentionally or recklessly misrepresented Warner’s financial condition, it is yet) another obstacle for plaintiffs to prove that defendants’ misrepresentations caused the damages allegedly sustained by plaintiffs. The Second Circuit employs the “out-of-pocket” damage measure in Rule 10b-5 cases. Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir.1971); Bonime v. Doyle, 416 F.Supp. 1372, 1384 (S.D.N.Y.1976), aff'd mem., 556 F.2d 554 (2d Cir.), cert. denied, 434 U.S. 924, 98 S.Ct. 401, 54 L.Ed.2d 281 (1977); Quintel Corp. N. V. v. Citibank, N.A., 596 F.Supp. 797, 802 (S.D.N.Y.1984); Freschi v. Grand Coal Venture, 588 F.Supp. 1257, 1259 (S.D.N.Y.1984). Under this measure, a defrauded buyer may recover the difference between the price paid for the stock and the “fair value” of the stock (value absent the fraud), as of the date of his or her purchase. See Sirota v. Solitron Devices Inc., 673 F.2d 566, 577-78 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 86, 74 L.Ed.2d 80 (1982). Plaintiffs may argue that the “fair value” of the stock should be drawn from its market price following revelation of the fraudulently withheld material. See Harris v. American Invest. Co., 523 F.2d 220, 226-27 (8th Cir.1975); cert. denied, 423 U.S. 1054, 96 S.Ct. 784, 46 L.Ed.2d 643 (1976); In re Brown Co. Sec. Litigation, 355 F.Supp. 574, 588 (S.D.N.Y.1973); SEC v. Texas Gulf Sulphur Co., 331 F.Supp. 671, 672 (S.D.N.Y.1971). Defendants will likely counter that the post-disclosure market price of the stock has been affected by factors unrelated to the disclosure. See Sirota, 673 F.2d at 577; Blackie v. Barrack, 524 F.2d 891, 909 n. 25 (9th Cir.1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976); Burger v. CPC Int’l, Inc., 76 F.R.D. 183, 187-88 (S.D.N.Y.1977); Bonime, 416 F.Supp. at 1384. Indeed, defendants bear no responsibility for the impact of so-called nonactionable factors, such as general market conditions. Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 49 n. 22 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d"
},
{
"docid": "7236994",
"title": "",
"text": "is admissible. Quintel’s Damages Section 28(a) of the 1934 Act, 15 U.S.C. § 78bb(a) limits recovery in a suit under the 1934 Act to “actual damages.” The Court of Appeals has explained that the purpose of section 28(a) is “to compensate civil plaintiffs for economic loss suffered as a result of wrongs committed in violation of the 1934 Act.” Osofsky v. Zipf, 645 F.2d 107, 111 (2d Cir.1981). Absent special circumstances, the actual damages of a defrauded purchaser are his out-of-pocket losses, defined as the excess of what he paid over the actual value of what he received. See Levine v. Seilon, Inc., 439 F.2d 328, 334 (2d Cir. 1971); Freschi v. Grand Coal Venture, 588 F.Supp. 1257 at 1259 (S.D.N.Y.1984). Actual value is generally defined as the fair market value of a security on the date of purchase or at a subsequent date when the fraud was or should have been discovered. See Steinberg v. Carey, 470 F.Supp. 471, 476 n. 19 (S.D.N.Y.1979). The Court of Appeals has recently recognized that in some cases the appropriate measure of damages is the benefit of the bargain. Osofsky v. Zipf, supra, 645 F.2d at 109. This measure of damages gives the plaintiff the benefit of what was promised and permits recovery of the difference between the represented value and the actual value of what the plaintiff received. Id. In addition, the court has held that a plaintiff suing under Rule 10b-5 may recover consequential damages if he can “establish the causal nexus with a good deal of certainty.” Zeller v. Bogue Electric Manufacturing Corp., 476 F.2d 795, 803 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Freschi v. Grand Coal Venture, supra, 588 F.Supp. at 1259-1260. Quintel seeks $2,974,192 in damages under either measure. It claims that the benefit of the bargain is the appropriate measure of damages in this case, the benefit of the bargain being the total investment obtained by the general partners, 50% of the value of the undeveloped land, which was valued at $1,486,000, plus the $2,231,192.00 difference between the projected"
}
]
|
280806 | cases uniformly prohibit ‘side-switching,’ ” that is, testimony against a party’s interest by an expert witness formerly retained by that party. Such testimony, they argue, violates “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants cite no rule of procedure or of evidence, and not a single case, establishing -the purported “rule against side-switching.” Rather, the appellants cite cases prohibiting attorneys from, or disqualifying attorneys for, contacting counterparties’ experts in violation of: 1) Fed.R.Civ.P. 26, see Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984); 2) attorney-client privilege, see Rentclub, Inc. v. Transamerica Rental Fin. Carp., 811 F.Supp. 651 (M.D.Fla.1992); or 3) the confidentiality of work product or litigation strategy, see REDACTED Geralnes B.V. v. City of Greenwood Village, 609 F.Supp. 191 (D.Colo. 1985). The effect of these rules, taken together, is that parties will rarely be able to avail themselves of the services of the other side’s expert witnesses—but that is merely the effect of these rules and not a rule unto itself. In the absence of any precedent, we decline to recognize any blanket rule or policy against “side-switching.” Moreover, none of the concerns in the cases cited by respondents are implicated by the arbitration panel’s admission of Hansen’s testimony. Rule 26 does not independently apply to arbitration proceedings, and attorney-client privilege is not a concern because there is no allegation that Hansen divulged any information properly protected by the privilege. Concerns | [
{
"docid": "13872286",
"title": "",
"text": "which is at the heart of the underlying dispute. Because of his knowledge of the site, Willett, like Morris, was listed by his em ployer as a fact witness who might also render expert testimony in the case. Similarly, Willett became an \"indispensable” member of his employer's litigation preparation efforts, and in his capacity as a de facto trial consultant and/or paralegal, was privy to confidential information regarding plaintiffs litigation strategy. Like Morris, Willett was offered money by defense counsel as an inducement to switch sides in the litigation. The principal distinction between Messrs. Willett and Morris is that Morris had entered into an actual consulting agreement with MGM to assist with its trial preparation, whereas, after MMR declared bankruptcy, Wil-lett remained unemployed until he was contacted by attorney Forstadt. However, the fact that Willett was not under contract appears to have been largely a function of the post-bankruptcy haze, Willett’s status as a trial consultant being put in limbo until he was officially offered a job by Aetna sometime in June, 1990. Even if Wil-lett's non-contractual status suggests that he was not a \"party” to the lawsuit within the meaning of Rule 4.2 of Professional Conduct, (A lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so), the absence of a contract with Aetna in no way alters the essence of Willett’s ongoing consulting relationship with plaintiffs attorneys. Finally, the fact that so few cases have cited MGM does not, as defendant maintains, suggest that the court’s reasoning in that case is suspect, but rather that there are so few attorneys who would even begin to consider such an \"egregiously underhanded, willful and knowing raid of an opposition’s expert” Geralnes B.V. v. City of Greenwood Village, 609 F.Supp. 191, 193 (D.Col.1985), as occurred in that case. . The fact that Willett was not an attorney is irrelevant to the court’s consideration of his ability to assist"
}
]
| [
{
"docid": "10234938",
"title": "",
"text": "merely the product, of the draftsman’s imagination nor does it require an interpretation of Rule 4.2 that strains to find that a former employee is a represented “party.” Ample case authority supports limitations on contact with former employees who have had extensive exposure to privileged information. See, e.g., Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651 (M.D.Fla.1992), [aff'd, 43 F.3d 1439 (11th Cir.1995) (per curiam) ]; MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712 (D.Conn.1991); Chancellor v. Boeing Co., 678 F.Supp. 250 (D.Kan.1988); Williams v. Trans World Airlines, Inc., 588 F.Supp. 1037 (W.D.Mo.1984); Hazard & Hodes, supra, at § 4.2:107 (Rule 4.2 violated where there is high risk former employee will disclose confidential information); cf. Lang v. Superior Court, 170 Ariz. 602, 826 P.2d 1228 (Ariz.App.1992). * * * * * * What the proposed Restatement does, however, is to extract the organizing principle from these various authorities. Only insofar as a former employee has been extensively exposed to confidential information and only insofar as an adversary attorney knows (or, it must be added, should reasonably know) of that fact, will ex parte contact be precluded. So long as privileged matters are respected, all other former employees remain fair game. This balancing of interests, in the Court’s view, is both fair and reasonable. Id. at 1121-22 (citations and footnotes omitted; emphases in original). Much ado has been made by Zachair’s counsel concerning Camden’s legitimacy, given that the Maryland Court of Appeals has not ruled on the issue whether Maryland Rule of Professional Conduct 4.2 covers former employees, and given that the Maryland State Bar Association has issued an ethics opinion, Docket 86-13, concluding that counsel is not forbidden from speaking ex parte with former employees of a corporate adverse party. It is settled, however, that the opinions issued by the Ethics Committee of the Maryland State Bar Association are not binding on the Court of Appeals. Attorney Grievance Commission of Maryland v. Gregory, 311 Md. 522, 531, 536 A.2d 646, 651 (1988). Thus, when faced with applying Maryland law to an issue of first impression,"
},
{
"docid": "22947701",
"title": "",
"text": "enjoys wide latitude in conducting an arbitration hearing. Arbitration proceedings are not constrained by formal rules of procedure or evidence.” Robbins v. Day, 954 F.2d 679, 685 (11th Cir.1992), overruled on other grounds, Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985. Arbitration rules, such as those of the AAA, are intentionally written loosely, in order to allow arbitrators to resolve disputes without the many procedural requirements of litigation. The AAA’s Rule 3 is a prime example. It does not require parties to provide all documents by any certain deadline; rather, it notes the importance of predictability in the proceedings and of the efficient exchange of relevant information, and provides only that “the AAA will make arrangements for the exchange of documentary evidence.” There is thus no notice requirement in Rule 3 that MAN GHH could have violated; instead, arbitrators are left wide discretion to require the exchange of evidence, and to admit or exclude evidence, how and when they see fit. This is the rule to which the parties agreed, and we therefore cannot say that the relatively late provision of the TÜV report, and its admission by the panel, constituted a fail-' ure of the panel to adhere to the parties’ agreement. B. The appellants also argue that the award should be vacated on the ground that the arbitration panel improperly heard testimony from Hansen, a piping expert who was retained by appellant IRI to inspect the tail gas expander casing onsite at the Tampa plant after the first wreck and who was directly involved in the redesign of the expander casing before the second wreck. The arbitration panel called Hansen to testify sua sponte, after the appellants objected to MAN GHH’s attempt to call him. The appellants assert that “[f]ederal and Florida cases uniformly prohibit ‘side-switching,’ ” that is, testimony against a party’s interest by an expert witness formerly retained by that party. Such testimony, they argue, violates “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants cite no rule of procedure or of evidence, and not a single case,"
},
{
"docid": "23255824",
"title": "",
"text": "that the court does have such power, both for the purpose of protecting various privileges which may be breached in some fashion if an expert is permitted to change sides during litigation, see Miles v. Farrell, 549 F.Supp. 82 (N.D.Ill.1982), or as part of the court’s inherent power to preserve the public confidence in the fairness and integrity of the judicial proceedings. See Williams v. TWA, Inc., 588 F.Supp. 1037 (W.D.Mo.1984). The decisional rules set forth in Conforti simply represent the application of the court’s inherent power both to a specific type of privileged communication—in that case, the attorney-client privilege—and the use of the court’s inherent power to preserve the integrity of proceedings before it, under the label of determining whether it is “fundamentally unfair” to permit an expert witness, under certain circumstances, to switch sides. The parties here have focused largely on whether Dr. Goldsmith was retained by Rawlings as an expert witness in the Michael Paul case. Although there is much to be said for the application of “bright-line” rules in matters of this sort, the case law does not support, and I will not apply, a “bright-line” rules which would make the question of disqualification turn exclusively on the determination of whether a contractual relationship existed between Rawlings and Dr. Goldsmith. In my view, such a rule would prove both too little and too much. Under certain circumstances, it might be reasonable for an attorney or his principal to communicate privileged or confidential matters to an expert witness even in the absence of a formal contractual relationship. On the other hand, there may be situations where, despite the existence of a formal contractual relationship, so little of substance occurs during the course of the relationship that neither the integrity of the trial process, nor the interests of the party who retained the expert, would be served by blanket disqualification. Consequently, I believe the proper focus in such situations is to determine, first, whether the attorney or client acted reasonably in assuming that a confidential or fiduciary relationship of some sort existed and, if so, whether the relationship"
},
{
"docid": "22947728",
"title": "",
"text": "prejudice caused by the admission of Hansen’s testimony and of the TÜV report was therefore cured sufficiently to ensure that the proceedings were not rendered fundamentally unfair by the admission of these materials. . In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as binding precedent all decisions of Unit B of the former Fifth Circuit handed down after September 30, 1981. . Respondents also argue that the admission of the TÜV report at a relatively late date violated the panel’s own prehearing order. That order provided that [e]ach side shall submit its expert witnesses’ reports, witness depositions, or excerpts, to be relied upon, and expert witness summaries/affidavits, which shall include the experts' backgrounds and history, in quadruplicate, to the Association, for transmittal to the Arbitrators, by June 12, 1992. The admission of such documents after June 12, 1992, in contravention of the panel’s order, might or might not violate the agreement of the parties. We need not reach that question, however, because the TÜV report was an exhibit, not an \"expert witness!]' report!], witness deposition! 1 • • ■ excerpt! ] ... expert witness summarly ,][or] affidavit!].” Its production was therefore not required by the prehearing order, and that order was not violated by its late production. . As an initial matter, we doubt whether Hansen was in fact an \"expert witness” for IRI, and not merely a professional consultant who in this case happened to be a fact witness. Hansen never had an exclusivity or confidentiality agreement with IRI and was never asked to serve as an expert witness in the litigation in district court. These facts alone suffice to distinguish the instant case from the Middle District of Florida’s holding in Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651 (M.D.Fla. 1992), upon which the appellants rely. Most important, however, Hansen directly observed the redesign and reconstruction of the expander after the first wreck, and consulted with the parties during that process; in this regard his status in the arbitration proceeding was much the same as that of a consulting physician"
},
{
"docid": "5561531",
"title": "",
"text": "testify for that party’s adversary. Paul, 123 F.R.D. at 278; see Miles v. Farrell, 549 F.Supp. 82 (N.D.Ill. 1982) (barred continued retention or testimony by treating physician of plaintiff who was retained by defendant as expert while still treating plaintiff). Additionally, the court found that it was within the inherent power of the court to disqualify an expert if necessary to preserve the public confidence in the fairness and integrity of the judicial proceedings. Paul, 123 F.R.D. at 278. In reaching its conclusion, the court in Paul discussed Conforti & Eisele, Inc. v. Division of Building and Construction, et al., 170 N.J.Super. 64, 405 A.2d 487 (1979). In Conforti, the court relying on its inherent power to protect a client’s attorney-client privilege and fundamental fairness, extended the attorney-client privilege which protects confidential communications made to an attorney by the client, to confidential client communications made to an agent of the attorney by the attorney. Conforti, 170 N.J.Super. 64, 405 A.2d 487 (1987). The Conforti court was protecting the defendants from the risk of prejudice from possible disclosure and use of confidential client communications which arose when the plaintiff hired the former expert of the defendants’ attorney who had been exposed to and received confidential client materials involving the pending litigation while being employed in a related litigation matter by the defendants’ attorney. Conforti, 170 N.J.Super. 64, 405 A.2d 487. The Paul court categorized Conforti as a particular application of a court’s inherent power to protect various privileges, i.e., attorney-client. Paul, 123 F.R.D. at 278. The Paul court interpreted the language of Conforti involving fundamental fairness in not allowing an expert witness to switch sides in the same or related litigation as being an application of a court’s inherent power to preserve the integrity of proceedings before the court. Paul, 123 F.R.D. at 278. The court in Paul read Conforti to stand for the idea that in certain circumstances it would be fundamentally unfair to allow an expert hired by a party, who at that party’s expense obtains specific knowledge and expertise in the issues involved in the litigation, to then"
},
{
"docid": "9823432",
"title": "",
"text": "plaintiffs “Motion for Judgment against Newmar for Tampering with a Material Witness,” the district court interpreted the motion as an attempt by Erickson “to disqualify his own expert witness so that an adverse judgment [could] be imposed on defendant as a sanction for causing the loss of the expert.” In denying Erickson’s motion, the court relied solely upon cases which involve disqualification of a “switching sides” expert — an expert who is initially retained by one party, dismissed, and employed by the opposing party in the same or related litigation. In “switching sides” cases, courts may grant the original hiring party’s motion to disqualify the expert when it is determined that the expert is in possession of confidential information received from the first client. See, e.g., Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271, 278 (S.D.Ohio 1988) (holding plaintiffs expert witness was not disqualified even though he had previously worked for the defense on a related matter); English Feedlot, Inc. v. Norden Laboratories, Inc., 833 F.Supp. 1498, 1505 (D.Colo.1993) (holding expert witness was not disqualified from working for adverse party because he did not receive any confidences from original hiring party); Conforti & Eisele, Inc. v. Division of Bldg. & Constr., 170 N.J.Super. 64, 405 A.2d 487, 492 (Law Div.1979) (holding expert witness was disqualified from working for adverse party because he had received privileged information from original hiring party). The present case, however, does not involve an expert who changed sides and used confidential information. Rather, Dr. Grimm was still retained by Erickson at the time Combs made him an offer of employment. Therefore, the district court erred in its analysis. The present case is about an attorney who offered a monetary inducement to an expert witness prior to the expert giving his testimony. Thus, plaintiffs claim of unethical conduct by defense counsel requires us to decide: 1) whether attorney Combs’ offer of employment and subsequent ex parte communication with Dr. Grimm was unethical; and 2) if so, what sanction is appropriate? A. Unethical Conduct District courts have clear statutory authority to promulgate rules governing the admission and"
},
{
"docid": "9823435",
"title": "",
"text": "the ethical implications of communications with an adversary’s expert witness. 2 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 3.4:402 (2d ed. Supp. 1994). The treatise advises that: “Since existing rules of civil procedure carefully provide for limited and controlled discovery of an opposing party’s expert witnesses, all other forms of contact are impliedly prohibited.” Id. Therefore, an attorney who engages in prohibited communications violates the attorney’s ethical duty tó obey the obligations of the tribunal. Id.; see Nev.Sup.Ct.R.Prof.Conduct 173(3) (1986). Moreover, since the procedure for the discovery of experts is well established, an attorney may also be in violation of the rule prohibiting conduct prejudicial to the administration of justice. Id.; see Nev.Sup.Ct.R.Prof.Conduct 203(4) (1986). There is a scarcity of case law on the issue of ex parte contact with expert witnesses, possibly because the violation seldom happens. Campbell Indus, v. M/V Gemini, 619 F.2d 24 (9th Cir.1980), discusses the issue in the context of a “switching-sides” expert. In Campbell, the defense attorney engaged in ex parte contacts with plaintiffs expert while the expert was still retained by the plaintiff. Id. at 27. This court admonished the attorney for violating Fed.R.Civ.P. 26(b)(4) and upheld the district court’s disqualification of the expert. Id. Notwithstanding the lack of case law, two ethics opinions have concluded that an attorney violates an ethical duty when the attorney has ex parte contact with the opposing party’s expert witness. The American Bar Association Formal Ethics Opinion 93-378 explained that although the ABA Model Rules do not explicitly prohibit ex parte contacts with an opposing party’s expert witness, an attorney who engages in such contacts may violate the duty to obey the obligations of the tribunal. ABA Comm, on Ethics and Professional Responsibility, Formal Op. 93-378 (1993); see Model Rules of Professional Conduct Rule 3.4(c) (1983); Nev.Sup.Ct.R.Prof.Conduct 173(3) (1986). The opinion reasoned that Fed.R.Civ.P. 26(b)(4)(A) sets forth a defined procedure for an attorney to conduct discovery with respect to an opposing party’s expert. Ex parte communications circumvent the discovery rules and thus violate an attorney’s duty to obey the obligations of the"
},
{
"docid": "5561542",
"title": "",
"text": "was ever communicated. It is Dr. Leonard who owes a duty to Great Lakes not to disclose Great Lakes’ confidences or his work product on their behalf to his coworkers at Franklin. Similarly, it is Mr. Rumbarger and Franklin who owe a duty not to disclose FAG’s confidential or privileged information to Great Lakes’ expert, Dr. Leonard. However, FAG knows of the fact that Dr. Leonard works at Franklin and apparently is willing to rely on Mr. Rumbarger and Franklin to take appropriate steps to protect its interests in the litigation. Additionally, as discussed in Paul, it is primarily the duty of each side’s attorneys to take necessary steps to prevent possible future disclosures of their clients’ confidential or privileged information. Paul v. Rawlings Sporting Goods Co., 123 F.R.D. 271 (S.D. Ohio 1988). The court refuses to disqualify Mr. Rumbarger or Franklin Research Center at this time. The parties and their attorneys are well aware of the relevant relationships of the experts and are in a position to prevent any improper disclosures in the future. It would be inappropriate under these facts to interfere with FAG’s choice of an expert or to force Mr. Rumbarger and Franklin to decline employment by FAG. Great Lakes argues that Rule DR 5-105(D) of the Model Code of Professional Responsibility governing attorney conflict of interest should be applied by analogy to prevent Franklin and Mr. Rumbarger from representing a party with interests adverse to the interests represented by Franklin’s employee, Dr. Leonard. DR 5-105(D) prevents two attorneys in the same firm from representing adverse parties to the same litigation at anytime. However, experts do not represent clients in the same sense that attorneys do, nor does the protection of the fairness and integrity of the judicial process require the courts to blindly treat experts like attorneys. The same rationale discussed in the Paul case for not blindly applying attorney disciplinary rules to an expert who switches sides applies equally well to the vicarious disqualification rule of DR 5-105(D). The fact that Dr. Leonard and Mr. Rumbarger have worked together in bearing failure issues at"
},
{
"docid": "20259846",
"title": "",
"text": "a collective bargaining agreement, both sides presented their argument before a \"Conference Arbitration Panel” which Defendants characterized as a \"quasi-judicial proceeding with no attorney involvement.\" As a result of the grievance proceedings held between Andreides and management, Andreides was reinstated. . Defendants' policy argument that a privilege should attach to documents created in anticipation of a grievance proceeding based on Congress' intention to promote the full, frank, uninhibited, robust, and wide-open debate at bargaining sessions cannot prevail absent authority demonstrating the existence of a privilege under the relevant state law. . Fed.R.Civ.P. 26(b)(3) further expressly admonishes courts to give even greater protection against disclosure of opinion work product, meaning “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” See Logan, 96 F.3d at 976, n. 4. See also K.L. v. Edgar, 964 F.Supp. 1206, 1211 (N.D.Ill.1997) (\"[M]ental impressions, conclusions, opinions, or legal theories of an attorney” are \"nearly absolutely protected, and can be discovered only in very rare and extraordinary circumstances!)]”). . In Grolier, the Court held that the work product privilege contained in Exemption 5 of the Freedom of Information Act extended to subsequent litigation. The Court stated that it was \"not rely[ing] exclusively on any particular construction of Rule 26(b)(3)” in reaching its decision, but was independently relying on the statutoiy language of Exemption 5. Grolier, 462 U.S. at 26, 103 S.Ct. at 2213-14. Still, as at least one court has recognized, “Grolier provides a strong hint that Rule 26 and a fortiori, Hickman (which is the genesis of Rule 26), applies to subsequent litigation.” In re Grand Jury Proceedings, 43 F.3d 966, 971 (5th Cir.1994). . As an initial matter, Plaintiff argues that Defendants waived any work product protection by introducing testimony and exhibits at the grievance proceedings and exchanging documents with each other. This argument must fail. \"While the voluntary disclosure to a third party can constitute a waiver of the attorney-client privilege, this will not suffice to waive the work product doctrine.” Williams v. Musser, No. 94 C 4140, 1995 WL 27394, at *2"
},
{
"docid": "22947704",
"title": "",
"text": "privilege is not a concern because there is no allegation that Hansen divulged any information properly protected by the privilege. Concerns about the confidentiality of work product and litigation strategy are not implicated because Hansen was called by the panel, not by MAN GHH, and because his testimony before the panel neither relied upon any confidential work product of IRI’s attorneys nor included any information about the respondents’ litigation strategy. Finally, even if such concerns were implicated by the admission of Hansen’s testimony, we could not consider vacatur of the district court’s order confirming the award unless that admission fell within one of the New York Convention’s seven grounds for refusal to enforce an award. See M & C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 (6th Cir.1996) (“[T]he Convention lists the exclusive grounds justifying refusal to recognize an [international] arbitral award.”). Even if the purported “rule against side-switching” did exist, for instance, it would not control arbitration proceedings unless the parties agreed to be controlled by it. See Szuts v. Dean Witter Reynolds, Inc., 931 F.2d 830, 831 (11th Cir. 1991) (noting that power and authority of arbitrator at arbitration proceeding is dependent upon the provisions of the arbitration agreement under which he was appointed). Nor have the appellants established that the admission of Hansen’s testimony was a violation of public policy of the sort required to sustain a defense under article V(b)(2) of the New York Convention. We have held that domestic arbitral awards are unenforceable on grounds that they are violative of public policy only when the award violates some “explicit public policy” that is “well-defined and dominant ... [and is] ascertained ‘by reference to the laws and legal precedents and not from general consideration of supposed public interests.’” Drummond Coal Co. v. United Mine Workers, District 20, 748 F.2d 1495, 1499 (11th Cir.1984) (quoting W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983)). We believe that rule applies with"
},
{
"docid": "22947698",
"title": "",
"text": "that report was provided to the appellants at a relatively late date, very shortly before the proceedings began. In considering that report, the appellants argue, the arbitration panel violated the rules of the American Arbitration Association, which were the agreed-upon rules of procedure for the arbitration. The appellants also assert that the panel should not have heard the testimony of Donald Hansen, a piping expert who had previ ously been retained by Respondent IRI to inspect the tail gas expander onsite at the Tampa plant after the first wreck and who was directly involved in the redesign of the expander before the second wreck. Allowing this testimony, the appellants argue, violated “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants also assert a defense that is not enumerated by the New York Convention: that the arbitral award should be vacated on the ground that it is “arbitrary and capricious.” We review de novo the district court’s determinations that the procedures observed by the arbitrators were in accordance with the agreement of the parties, that the admission of Hansen’s testimony was not violative of public policy, and that the award was not “arbitrary and capricious.” See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 947-49, 115 S.Ct. 1920, 1926, 131 L.Ed.2d 985 (1995) (requiring de novo review of questions of law involved in a district court’s refusal to vacate an arbitral award). We hold that the admission of the TÜV report was in accordance with the AAA rules and therefore with the agreement of the parties. We also hold that the admission of Hansen’s testimony was not a violation of public policy of the sort required to sustain a defense under the New York Convention. We further hold that no defense against enforcement of an international arbitral award under Chapter 2 of the FAA is available on the ground that the award is “arbitrary and capricious,” or on any other grounds not specified by the Convention. A. Rule 3 of the AAA’s Supplementary Procedures for International Commercial Arbitration provides that [a]t the request"
},
{
"docid": "22947729",
"title": "",
"text": "an \"expert witness!]' report!], witness deposition! 1 • • ■ excerpt! ] ... expert witness summarly ,][or] affidavit!].” Its production was therefore not required by the prehearing order, and that order was not violated by its late production. . As an initial matter, we doubt whether Hansen was in fact an \"expert witness” for IRI, and not merely a professional consultant who in this case happened to be a fact witness. Hansen never had an exclusivity or confidentiality agreement with IRI and was never asked to serve as an expert witness in the litigation in district court. These facts alone suffice to distinguish the instant case from the Middle District of Florida’s holding in Rentclub, Inc. v. Transamerica Rental Fin. Corp., 811 F.Supp. 651 (M.D.Fla. 1992), upon which the appellants rely. Most important, however, Hansen directly observed the redesign and reconstruction of the expander after the first wreck, and consulted with the parties during that process; in this regard his status in the arbitration proceeding was much the same as that of a consulting physician in a medical malpractice case. Nevertheless, we assume arguendo that Hansen's consulting work for IRI qualifies him as IRI’s \"expert witness” for purposes of this discussion. .Rule 26(b)(4)(B) provides: A party may, through interrogatories or by deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for Lhe party seeking discovery to obtain facts or opinions on the same subject by other means. . A domestic arbitral award may be vacated as \"arbitrary and capricious” if it \"exhibits a wholesale departure from the law [or] if the reasoning is so palpably faulty that no judge, or group of judges, could ever conceivably have made such a ruling.” Brown v. Rauscher Pierce Refsnes, Inc., 994 F.2d 775, 781 (11th Cir.1993). . We note that international arbitrators often"
},
{
"docid": "23255823",
"title": "",
"text": "fashion as the disclosure of trade secrets is enjoined. Conforti did not simply imply a duty not to disclose information whenever an expert is hired by both parties to litigation to act as an expert with respect to the same issues. Although the expert in question had not been retained by the defendant with respect to the phases of construction covered by his agreement with the plaintiff, the court stated that “the law will imply a relationship of confidence when it is just to do so.” Finding that the expert had reasonable access to the defendant’s privileged communications and strategies which would cause prejudice to the defendant if disclosed to the plaintiff, the court barred the expert from serving as a consultant even on the later phases of the construction project about which no expert-client relationship had previously existed. The first question to be resolved is whether this court has the power to disqualify an expert witness under any set of circumstances, or based upon the application of any particular legal theory. I am convinced that the court does have such power, both for the purpose of protecting various privileges which may be breached in some fashion if an expert is permitted to change sides during litigation, see Miles v. Farrell, 549 F.Supp. 82 (N.D.Ill.1982), or as part of the court’s inherent power to preserve the public confidence in the fairness and integrity of the judicial proceedings. See Williams v. TWA, Inc., 588 F.Supp. 1037 (W.D.Mo.1984). The decisional rules set forth in Conforti simply represent the application of the court’s inherent power both to a specific type of privileged communication—in that case, the attorney-client privilege—and the use of the court’s inherent power to preserve the integrity of proceedings before it, under the label of determining whether it is “fundamentally unfair” to permit an expert witness, under certain circumstances, to switch sides. The parties here have focused largely on whether Dr. Goldsmith was retained by Rawlings as an expert witness in the Michael Paul case. Although there is much to be said for the application of “bright-line” rules in matters of"
},
{
"docid": "9823434",
"title": "",
"text": "conduct of attorneys who appear before them. Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 557 (1987). In the District of Nevada, where this case arose, attorneys must abide by the Model Rules of Professional Conduct as adopted by the Supreme Court of Nevada. Dist.Nev.Local Rule IA 10-7 (1995). Attorney Combs’ offer of employment to Dr. Grimm violates two of these rules of professional conduct: 1) the duty to obey obligations of the tribunal, Rule 173(3); and 2) the prohibition against conduct which is prejudicial to the administration of justice, Rule 203(4). Nev.Sup.Ct.R.Prof.Conduct 173(3), 203(4) (1986). It is unethical conduct for an attorney to disobey an obligation of the court. Nev.Sup.Ct.R.Prof.Conduct 173(3). In federal court, the discovery rules impose obligations on attorneys during the course of litigation. At the time of the present litigation, Federal Rule of Civil Procedure 26(b)(4) provided that a lawyer’s permissible contact with an opposing party’s expert was limited to interrogatories and, upon leave of the court, depositions. Fed.R.Civ.P. 26(b)(4). A leading legal ethics treatise discusses the ethical implications of communications with an adversary’s expert witness. 2 Geoffrey C. Hazard & W. William Hodes, The Law of Lawyering § 3.4:402 (2d ed. Supp. 1994). The treatise advises that: “Since existing rules of civil procedure carefully provide for limited and controlled discovery of an opposing party’s expert witnesses, all other forms of contact are impliedly prohibited.” Id. Therefore, an attorney who engages in prohibited communications violates the attorney’s ethical duty tó obey the obligations of the tribunal. Id.; see Nev.Sup.Ct.R.Prof.Conduct 173(3) (1986). Moreover, since the procedure for the discovery of experts is well established, an attorney may also be in violation of the rule prohibiting conduct prejudicial to the administration of justice. Id.; see Nev.Sup.Ct.R.Prof.Conduct 203(4) (1986). There is a scarcity of case law on the issue of ex parte contact with expert witnesses, possibly because the violation seldom happens. Campbell Indus, v. M/V Gemini, 619 F.2d 24 (9th Cir.1980), discusses the issue in the context of a “switching-sides” expert. In Campbell, the defense attorney engaged in ex parte contacts with plaintiffs"
},
{
"docid": "12732750",
"title": "",
"text": "refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which. the rights of any party .have been prejudiced. (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. Although District Courts have discretion to vacate arbitration awards, this authority is not without limits. Great deference is afforded to these types of awards. O.R. Securities, Inc. v. Professional Planning Association, 857 F.2d 742, 746 (11th Cir.1988), citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). OPINION 1. Whether Hansen’s testimony unfairly prejudiced Respondents’ case — Respondents state that they originally retained Hansen as an expert. Respondents therefore, argue that they never consented to counsel for MAN GHH contacting Hansen nor their use of his expert testimony in their case. Further, Respondents argue that because of Hansen’s history of “side-switching,” the Panel, should not have called nor allowed Hansen to testify, as this unfairly prejudiced their case. The issue over whether Hansen should have been allowed to testify was vigorously debated by the parties. The. Arbitration Panel, over Respondents contentions, decided to call Hansen as their own witness. The Panel found that Hansen’s testimony was relevant to the issues in the case and indeed, the Panel relied on Hansen’s testimony, along with the other expert testimony, in making its ruling. Clearly, Hansen’s testimony was damaging to Respondent’s case. Respondents are in effect, asking this Court to review the Arbitrator’s Award de novo. The level of scrutiny given to an Arbitrator’s award is not that intrusive and moreover, because such awards are given greater deference, this Court shall not make such a review. It is well settled that Federal courts give great deference to an arbitrator’s decision to control the order, procedure and presentation of evidence. While it is true that Hansen testified that he believed the piping caused the machine failure and that this may have been a change from his original"
},
{
"docid": "12732749",
"title": "",
"text": "prejudiced the rights of Respondents in violation of 9 U.S.C. § 10(a)(3) and (a)(4); 3. Admission of the Hansen evidence violated public policy; 4. The Arbitration Award was irrational, arbitrary, and capricious with no basis in evidence and in contradiction of undisputed facts, failed to provide a reasoned award on principle issues as agreed by the parties, and failed to determine the issues submitted contrary to 9 U.S.C. § 10(a)(4). Additionally, Respondents argue in their Motion to Vacate the Arbitrators’ Costs Award that the Panel’s cost award is arbitrary and capricious. STANDARD OF REVIEW Respondents base their Motion to Vacate the Arbitration Award on 9 U.S.C. § 10(a)(1), (3) and (4). The Statute reads in pertinent part: (a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— (1)Where the award was procured by corruption, fraud, or undue means ... (3) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which. the rights of any party .have been prejudiced. (4) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. Although District Courts have discretion to vacate arbitration awards, this authority is not without limits. Great deference is afforded to these types of awards. O.R. Securities, Inc. v. Professional Planning Association, 857 F.2d 742, 746 (11th Cir.1988), citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). OPINION 1. Whether Hansen’s testimony unfairly prejudiced Respondents’ case — Respondents state that they originally retained Hansen as an expert. Respondents therefore, argue that they never consented to counsel for MAN GHH contacting Hansen nor their use of his expert testimony in their case. Further, Respondents argue that because of Hansen’s history of “side-switching,” the Panel, should not have called nor"
},
{
"docid": "22947703",
"title": "",
"text": "establishing -the purported “rule against side-switching.” Rather, the appellants cite cases prohibiting attorneys from, or disqualifying attorneys for, contacting counterparties’ experts in violation of: 1) Fed.R.Civ.P. 26, see Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984); 2) attorney-client privilege, see Rentclub, Inc. v. Transamerica Rental Fin. Carp., 811 F.Supp. 651 (M.D.Fla.1992); or 3) the confidentiality of work product or litigation strategy, see MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712 (D.Conn.1991); Geralnes B.V. v. City of Greenwood Village, 609 F.Supp. 191 (D.Colo. 1985). The effect of these rules, taken together, is that parties will rarely be able to avail themselves of the services of the other side’s expert witnesses—but that is merely the effect of these rules and not a rule unto itself. In the absence of any precedent, we decline to recognize any blanket rule or policy against “side-switching.” Moreover, none of the concerns in the cases cited by respondents are implicated by the arbitration panel’s admission of Hansen’s testimony. Rule 26 does not independently apply to arbitration proceedings, and attorney-client privilege is not a concern because there is no allegation that Hansen divulged any information properly protected by the privilege. Concerns about the confidentiality of work product and litigation strategy are not implicated because Hansen was called by the panel, not by MAN GHH, and because his testimony before the panel neither relied upon any confidential work product of IRI’s attorneys nor included any information about the respondents’ litigation strategy. Finally, even if such concerns were implicated by the admission of Hansen’s testimony, we could not consider vacatur of the district court’s order confirming the award unless that admission fell within one of the New York Convention’s seven grounds for refusal to enforce an award. See M & C Corp. v. Erwin Behr GmbH & Co., KG, 87 F.3d 844, 851 (6th Cir.1996) (“[T]he Convention lists the exclusive grounds justifying refusal to recognize an [international] arbitral award.”). Even if the purported “rule against side-switching” did exist, for instance, it would not control arbitration proceedings unless the parties agreed to be controlled by it. See Szuts"
},
{
"docid": "9823433",
"title": "",
"text": "disqualified from working for adverse party because he did not receive any confidences from original hiring party); Conforti & Eisele, Inc. v. Division of Bldg. & Constr., 170 N.J.Super. 64, 405 A.2d 487, 492 (Law Div.1979) (holding expert witness was disqualified from working for adverse party because he had received privileged information from original hiring party). The present case, however, does not involve an expert who changed sides and used confidential information. Rather, Dr. Grimm was still retained by Erickson at the time Combs made him an offer of employment. Therefore, the district court erred in its analysis. The present case is about an attorney who offered a monetary inducement to an expert witness prior to the expert giving his testimony. Thus, plaintiffs claim of unethical conduct by defense counsel requires us to decide: 1) whether attorney Combs’ offer of employment and subsequent ex parte communication with Dr. Grimm was unethical; and 2) if so, what sanction is appropriate? A. Unethical Conduct District courts have clear statutory authority to promulgate rules governing the admission and conduct of attorneys who appear before them. Frazier v. Heebe, 482 U.S. 641, 645, 107 S.Ct. 2607, 2611, 96 L.Ed.2d 557 (1987). In the District of Nevada, where this case arose, attorneys must abide by the Model Rules of Professional Conduct as adopted by the Supreme Court of Nevada. Dist.Nev.Local Rule IA 10-7 (1995). Attorney Combs’ offer of employment to Dr. Grimm violates two of these rules of professional conduct: 1) the duty to obey obligations of the tribunal, Rule 173(3); and 2) the prohibition against conduct which is prejudicial to the administration of justice, Rule 203(4). Nev.Sup.Ct.R.Prof.Conduct 173(3), 203(4) (1986). It is unethical conduct for an attorney to disobey an obligation of the court. Nev.Sup.Ct.R.Prof.Conduct 173(3). In federal court, the discovery rules impose obligations on attorneys during the course of litigation. At the time of the present litigation, Federal Rule of Civil Procedure 26(b)(4) provided that a lawyer’s permissible contact with an opposing party’s expert was limited to interrogatories and, upon leave of the court, depositions. Fed.R.Civ.P. 26(b)(4). A leading legal ethics treatise discusses"
},
{
"docid": "22947702",
"title": "",
"text": "cannot say that the relatively late provision of the TÜV report, and its admission by the panel, constituted a fail-' ure of the panel to adhere to the parties’ agreement. B. The appellants also argue that the award should be vacated on the ground that the arbitration panel improperly heard testimony from Hansen, a piping expert who was retained by appellant IRI to inspect the tail gas expander casing onsite at the Tampa plant after the first wreck and who was directly involved in the redesign of the expander casing before the second wreck. The arbitration panel called Hansen to testify sua sponte, after the appellants objected to MAN GHH’s attempt to call him. The appellants assert that “[f]ederal and Florida cases uniformly prohibit ‘side-switching,’ ” that is, testimony against a party’s interest by an expert witness formerly retained by that party. Such testimony, they argue, violates “the well-established public policy protecting ... fundamental principles of fairness and professional conduct.” The appellants cite no rule of procedure or of evidence, and not a single case, establishing -the purported “rule against side-switching.” Rather, the appellants cite cases prohibiting attorneys from, or disqualifying attorneys for, contacting counterparties’ experts in violation of: 1) Fed.R.Civ.P. 26, see Durflinger v. Artiles, 727 F.2d 888 (10th Cir.1984); 2) attorney-client privilege, see Rentclub, Inc. v. Transamerica Rental Fin. Carp., 811 F.Supp. 651 (M.D.Fla.1992); or 3) the confidentiality of work product or litigation strategy, see MMR/Wallace Power & Indus., Inc. v. Thames Assocs., 764 F.Supp. 712 (D.Conn.1991); Geralnes B.V. v. City of Greenwood Village, 609 F.Supp. 191 (D.Colo. 1985). The effect of these rules, taken together, is that parties will rarely be able to avail themselves of the services of the other side’s expert witnesses—but that is merely the effect of these rules and not a rule unto itself. In the absence of any precedent, we decline to recognize any blanket rule or policy against “side-switching.” Moreover, none of the concerns in the cases cited by respondents are implicated by the arbitration panel’s admission of Hansen’s testimony. Rule 26 does not independently apply to arbitration proceedings, and attorney-client"
},
{
"docid": "15044877",
"title": "",
"text": "the attorney-client relationship because experts perform very different functions in litigation than attorneys. See Id. at 337. Experts are not advocates in the litigation but sources of information and opinions. See also E.E.O.C. v. Locals 14 and 15, Intern. Union of Operating Engineers, 1981 WL 163 (D.C.N.Y.) (rejecting blind application to experts of attorney disciplinary rules concerning client loyalty); see also Paul v. Rawlings Sporting Goods Co., 123 F.R.D. at 281 (distinguishing reasons for disqualifying attorneys from experts because there are many communications between a client and an expert witness which are not privileged and there is less stigma attached to an expert ‘changing sides’ in the midst of litigation than an attorney, who occupies a position of higher trust). Because experts and attorneys perform different functions in litigation, the standards and presumptions applicable to the attorney-client relationship have no bearing on Brown’s disqualification. The party seeking disqualification bears the burden of establishing both the existence of confidentiality and its non-waiver. See generally Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C.1991). Here, SmithKline is the party seeking to disqualify Brown. Therefore, it bears the burden of proof. Smith-Kline contends that Brown, while retained by SmithKline, received confidential information regarding SmithKline’s products, the components thereof, and SmithKline’s defense and settlement strategies. SmithKline relies on five past consulting engagements as grounds for its motion: 1) 1984/1985 work in investigating and assisting in BRSV claim settlements (BRSV work); 2) 1985/1986 work conducted as an expert witness in the McCoy ease (the McCoy ease); 3) 1989 investigation concerning CattleMaster 4+VL5 vaccine (CM4 + VL5 work); 4) 1990 investigation concerning * CattleMaster 4 + L5 vaccine (*CM4 + L5 work); and, 5) 1990/91 investigation concerning MLV IBR-L.Pomona vaccine (IBR work). A) CONFIDENTIALITY Other jurisdictions have established a two-step inquiry to determine whether to disqualify an expert who had a prior relationship with a party. First, was it objectively reasonable for the first party who retained the expert to believe that a confidential relationship existed? Second, did that party disclose any confidential information to the expert? Mayer v. Dell, 139 F.R.D. at 3. Hence, if any"
}
]
|
812873 | "cites involve state-law claims other than breach of contract. See Remand Mot. at 8-9 (citing Lingle , 486 U.S. at 402, 410, 108 S.Ct. 1877 (Illinois workers' compensation laws); Livadas , 512 U.S. at 111, 114 S.Ct. 2068 (California wage and hour statute); Allis-Chalmers Corp. , 471 U.S. at 213-14, 105 S.Ct. 1904 (bad faith tort claim, which was preempted); Black v. NFL Players Ass'n , 87 F.Supp.2d 1, 4 (D.D.C. 2000) (common law tortious interference) ). And cases where courts have found that breach of contract claims are not preempted involve ""an employer [who] broke a promise made to an employee before the employee entered the bargaining unit or while the employee was outside the bargaining unit."" REDACTED Unlike the plaintiffs in those cases, Brown ""was a bargaining unit employee covered by the CBA at all times relevant to [his] breach of contract claim."" Birch v. Pepsi Bottling Grp., Inc. , 207 F.Supp.2d 376, 390 (D. Md. 2002). Thus, ""[i]t is clear that [Brown's] individual employment contract claim is preempted by the LMRA as a matter of law."" Id. The Court also concludes, as Pepco argues, Remand Opp. at 6-7, that Brown's claim is preempted because it ""requires the interpretation of a collective-bargaining agreement."" Lingle , 486 U.S. at 413, 108 S.Ct. 1877. Most notably, Brown alleges that Pepco breached an independent contract with him ""when it relied upon [his] status as being on 'Decision" | [
{
"docid": "5465402",
"title": "",
"text": "agreed, and what legal consequences were intended to flow from branches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 at 211, 105 S.Ct. 1904, 85 L.Ed.2d 206. In order for there to be § 301 preemption, the plaintiff must plead an action that requires interpretation of the collective bargaining agreement. Caterpillar, 482 U.S. at 398. The fact that as part of a defense to a state law contract action an employer might raise “a federal question, even a § 301 question” does not mean that the claim is preempted by section 301. Id. Furthermore, “[n]ot every dispute concerning employment, or tangentially involving a provision of the collective bargaining agreement, is preempted by Section 301 or other provisions of federal labor law.” Id. However, when resolution of a state law claim is “substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim or dismissed as preempted by federal labor-contract law.” Id.; see also Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 399-400, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (“[i]f the resolution of a state law claim depends upon the meaning of a collective bargaining agreement, the application of state law ... is pre-empted and federal labor law principles — necessarily' uniform throughout the Nation — must be employed to resolve the dispute.”). Employers and employees who are parties to a collective bargaining agreement may enter into individual contracts that “embody matters not necessarily included within the statutory scope of collective bargaining,” to the extent that such contracts are “not inconsistent with a collective agreement or do [ ] not amount to or result from or [are] not part of an unfair labor practice.” J.I. Case Co. v. NLRB, 321 U.S. 332, 339, 64 S.Ct. 576, 88 L.Ed. 762 (1944). Henderson contends that he and Merck"
}
]
| [
{
"docid": "2083656",
"title": "",
"text": "In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C.2002) (citations omitted). ANALYSIS Section 301 of the Labor Management Relations Act (“LMRA”) provides: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). The Supreme Court has stated that section 301 confers federal jurisdiction over controversies involving collective bargaining agreements and “authorizes federal courts to fashion a body of federal law for the enforcement of these collective-bargaining agreements.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Accordingly, section 301 completely preempts any action predicated on state law if that action is either: (1) founded upon rights created by a collective bargaining agreement; or (2) substantially dependent upon analysis of that agreement. Lingle, 486 U.S. at 405, 410 n. 10, 108 S.Ct. 1877; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). But not every dispute “tangentially involving a provision of a collective-bargaining agreement ] is preempted by § 301 or other provisions of the federal labor law.” Allis-Chalmers, 471 U.S. at 211, 105 S.Ct. 1904. “[A] plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement.” Caterpillar v. Williams, 482 U.S. 386, 396, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Here, defendant maintains that"
},
{
"docid": "6682503",
"title": "",
"text": "relationship should be governed by United States law, including, as we view it, federal employment discrimination laws. RLA preemption might still apply if Rabé’s claims could not be resolved without construing the collective bargaining agreement and therefore intruding into the RLA’s federal mechanism for interpreting and enforcing collective bargaining agreements in the railroad and airline industries. See Hughes v. United Air Lines, Inc., 634 F.3d 391, 393-94 (7th Cir.2011) (explaining Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)); see also Hawaiian Airlines, 512 U.S. at 262, 114 S.Ct. 2239. But the mere mention of or reference to a collective bargaining agreement in the course of a lawsuit does not mean that the claim is preempted. Just because a lawsuit concerns an employment dispute or involves tangentially a provision of a collective bargaining agreement does not mean that federal law preempts the state law claims. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) (applying similar standard under section 301 of Labor Management Relations Act). A state law claim is preempted only when it asserts rights or obligations arising under a collective bargaining agreement or when its resolution is substantially dependent on the terms of the collective bargaining agreement. The mere need to consult a collective bargaining agreement does not require preemption. When a claim does not arise under a collective bargaining agreement, the claim is preempted only when its resolution depends on the disputed meaning of or requires interpretation of contract terms. Livadas v. Bradshaw, 512 U.S. 107, 124, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (also applying section 301). The principal focus here is on United managers’ subjective reasons for terminating Rabé’s employment. Rabé alleges that she was treated differently than other employees who were similarly situated in terms of their use of company travel vouchers. Second Am. Cmplt. ¶ 24. Given the nature of Rabé’s discrimination claims, their resolution does not appear likely to require the court to interpret the collective bargaining agreement “as a potentially dispositive matter.” See Brown, 254 F.3d"
},
{
"docid": "2003804",
"title": "",
"text": "both the negotiation and administration of collective agreements .... The importance of the area which would be affected by separate systems of substantive law makes the need for a single body of federal law particularly compelling. The ordering and adjusting of competing interests through a process of free and voluntary collective bargaining is the keystone of the federal scheme to promote industrial peace. State law which frustrates the effort of Congress to stimulate the smooth functioning of that process thus strikes at the very core of federal labor policy. Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). Given the importance of maintaining uniform federal law, the Supreme Court “has made clear that § 301 of the LMRA preempts any state-law claim arising from a breach of a collective bargaining agreement.” Smolarek v. Chrysler Corp., 879 F.2d 1326, 1329 (6th Cir.1989) (en banc). Preemption under § 301 applies not only to state-law contract claims, but has been expanded to include state-law tort claims as well. Id. at 1329-30 (citing Allis-Chalmers Corp., 471 U.S. at 217, 105 S.Ct. 1904). Not every tort claim, however, relating to employment will be subject to preemption under § 301. Id. at 1330. To survive preemption under § 301, the tort claims must be “independent” of the CBA. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1989); Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904 (analyzing state-law claim to determine if it was “independent of any right established by contract, or, instead, whether evaluation of the tort claim [was] inextricably intertwined with consideration of the terms of the labor contract”); DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216 (6th Cir.1994) (citing Lingle). In Allis-Chalmers Corp., for example, the plaintiff brought a Wisconsin tort claim of bad-faith handling of an insurance claim against the defendant. The plaintiffs right to insurance, however, had been established by the collective bargaining agreement entered into by his union and the defendant. In finding the claim to be preempted, the Supreme"
},
{
"docid": "15437039",
"title": "",
"text": "the other. He alleges that SCIE violated the California Labor Code by failing to pay him at premium wage rates for the hours worked in excess of eight hours in one workday and forty hours in one workweek, as required by Section 510. DISCUSSION Because this is a state law action between nondiverse parties, this court’s subject matter jurisdiction depends on whether Gregory’s claim is preempted under § 301. A federal law defense to a state-law claim does not confer jurisdiction on a federal court. See Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Thus, a plaintiff may generally avoid federal jurisdiction by pleading solely state-law claims. An exception to that general proposition exists, however, if federal law completely preempts the plaintiffs state-law claim. In that case, federal law completely displaces plaintiffs state-law claim, no matter how carefully pleaded. “In such instances, any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir.2000). The complete preemption exception is applied primarily under § 301 of the LMRA. Id. That Section vests jurisdiction in federal courts over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a). The Supreme Court has expanded § 301 preemption to cases whose resolution “is substantially dependent upon analysis of the terms of [a collective bargaining agreement].” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). However, § 301 does not preempt a claim alleging state law substantive rights that apply without regard to a CBA and can be resolved without interpreting a CBA. Lingle v. Norge Div. of Magic Chef, Inc. 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). In Livadas v. Bradshaw, 512 U.S. 107, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994), the Court provided further clarification, stating that “ § 301 cannot"
},
{
"docid": "22594166",
"title": "",
"text": "instant ease. 1. Section 301 of the LMRA, 29 U.S.C. §, 185, confers federal jurisdiction over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” From this austere beginning, the Supreme Court determined that it had the authority to craft a federal common law that would effect section 301’s objectives. See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957). The Court subsequently-declared that section 301 preempts a state-law claim “if the resolution of [that] claim depends upon the meaning of a pollective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988). We recently visited this corner of the law in Flibotte v. Pennsylvania Truck Lines, 131 F.3d 21 (1st Cir.1997) [No. 97-1197]. Citing United Steelworkers v. Rawson, 495 U.S. 362, 369, 110 S.Ct. 1904, 1909-10, 109 L.Ed.2d 362 (1990), and Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1915-16, 85 L.Ed.2d 206 (1985), respectively, we explained that a state-law claim can depend upon the meaning of a collective bargaining agreement in either of two distinct ways: on the one hand, a claim can allege the violation of a duty that arises from the CBA itself, or, on the other hand, a claim can require a court to interpret a specific provision of the CBA. See Flibotte, 131 F.3d at 26. “If a state-law claim depends upon the meaning of the collective bargaining agreement in either of these ways — that is, under Rawson’s ‘duty’ rubric or under Allis-Chal-mers’s ‘interpretation’ rubric — it is preempted.” Id. Though section 301 is omnipotent within its sphere, it is not. endlessly expansive. The Court has warned that it “cannot be read broadly to pre-empt nonnegotiable rights conferred on individual employees as a matter of state law,” Livadas v. Bradshaw, 512 U.S. 107, 123, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994), and that “purely factual questions about an employee’s conduct or an employer’s conduct and motives do not require"
},
{
"docid": "21854356",
"title": "",
"text": "the basis for interpreting collective-bargaining agreements, and says nothing about the substantive rights a State may provide to workers when adjudication of those rights does not depend upon the interpretation of such agreements. In other words, even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state law claim can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for § 301 preemption purposes. Lingle, 486 U.S. at 409-410, 108 S.Ct. 1877. Hence, the critical question for the purpose of deciding when a state-law claim is preempted by § 301 of the LMRA is whether “ ‘the resolution of a state-law claim depends on an interpretation of the collective-bargaining agreement....’” Foy v. Pratt & Whitney Group (2d Cir. 1997) 127 F.3d 229, 232 (quoting Hawaiian Airlines, Inc. v. Norris (1994) 512 U.S. 246, 260-262, 114 S.Ct. 2239, 129 L.Ed.2d 203); see also Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904 (Court’s “analysis must focus” on whether the state-law claim “confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the [state law]'claim is inextricably intertwined with consideration of the terms of the labor contract.”) “[A]n application of state law is pre-empted by § 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement.” Lingle, 486 U.S. at 413, 108 S.Ct. 1877 (emphasis added). “Unsurprisingly, ‘[t]he boundary between claims requiring ‘interpretation’ of a CBA and those that merely require such an agreement to be ‘consulted’ is elusive.’ ” Brown, 219 F.Supp.2d at 379 (quoting Wynn v. AC Rochester (2d Cir.2001) 273 F.3d 153, 158). To determine whether the claims in the 2001 Action are preempted by § 301 of the LMRA, we must evaluate whether the resolution of those claims hinges on an interpretation of the CBA which governed Rasheed Wilds’ employment relationship with UPS. C. The Nature Of The Claims In The"
},
{
"docid": "12631172",
"title": "",
"text": "any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185. Section 301 “not only provides federal-court jurisdiction over controversies involving collective-bargaining agreements, but also ‘authorizes federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements.’” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957)). “Accordingly, section 301 completely preempts any action predicated on state law if that action is either: (1) founded upon rights created by a collective bargaining agreement; -or (2) substantially dependent upon analysis of that agreement.” Berry v. Coastal Int’l Sec., Inc., 968 F.Supp.2d 104, 110 (D.D.C. 2013); Lingle, 486 U.S. at 406, 413, 108 S.Ct. 1877 (section 301 preempts state law claims if they “depend[] upon the meaning of’ or “require[] the interpretation of’ a collective bargaining agreement). However, preemption under Section 301 does not serve as a complete bar against employees who are covered by a collective bargaining agreement bringing any breach of contract claims. “[A] plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement.” Caterpillar Inc. v. Williams, 482 U.S. 386, 396, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). A state law claim “is ‘independent’ of the collective-bargaining agreement” if “resolution of the state-law claim does not require construing the collective-bargaining agreement.” Lingle, 486 U.S. at 407, 108 S.Ct. 1877. The Court finds that Plaintiffs breach of contract claim in this case is not “independent” of the collective bargaining agreement. Defendant provided the Court with a Collective Bargaining Agreement between AlliedBarton and the Service Employees International Union, Local 32BJ (“SEIU”), that was in place during the time Plaintiff was employed by Defendant. Decl. of Timothy Price, ECF No. 6-2, Ex. A (“CBA”). Based on Plaintiffs"
},
{
"docid": "19750737",
"title": "",
"text": "for resolving [railroad] grievance disputes”); Union Pacific Railroad v. Price, 360 U.S. 601, 617, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959) (discharged employee may not litigate validity of discharge in common-law action after failing to sustain his grievance before the Board). When the resolution of an issue depends on an interpretation or application of a CBA, it is a so-called “minor” dispute, preempted by the RLA. UP argues that if needed as part of its defense, it would show that it followed the procedures authorized by the CBA, which would then require this court to interpret the CBA to determine whether UP complied with it. The United States Supreme Court has recognized, however, that “not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement is pre-empted .... ” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). Instead, a claim is preempted when the “evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.” Id. at 213, 105 S.Ct. 1904 (interpreting the Labor Management Relations Act (LMRA)). So long as a state law claim “can be resolved without interpreting the agreement itself, the claim is ‘independent’ of the agreement for [LMRA] § 301 preemption purposes.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 410, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). LMRA preemption principles inform the resolution of RLA preemption questions. Espinal v. Northwest Airlines, 90 F.3d 1452 (9th Cir.1996). In Lingle, the plaintiff was discharged for filing a false claim for worker’s compensation. She pursued a grievance through the CBA governing her plant, which protected workers from discharge except for just cause. The arbitrator ruled in her favor and ordered her reinstated. She also brought suit in Illinois state court, alleging she was discharged for exercising her rights under Illinois worker’s compensation laws. Lingle, 486 U.S. at 402-03, 108 S.Ct. 1877. The district court and the Seventh Circuit ruled that her claim was preempted by the LMRA. The Supreme Court reversed. It recognized that the Illinois cause of action"
},
{
"docid": "14806610",
"title": "",
"text": "claims that implicate a collective bargaining agreement must be construed as a § 301 claim and adjudicated under federal labor law or be dismissed as preempted. Allis-Chalmers, 471 U.S. at 220, 105 S.Ct. at 1918-19; Harris, 897 F.2d at 402-03. The district court then applied the test for preemption of tort claims set out in Allis-Chalmers and first carried forward in this circuit in Young, inquiring “whether the state ‘confers nonnegotiable state-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.’ ” (Young, 830 F.2d at 999 (quoting Allis-Chalmers, 471 U.S. at 213, 105 S.Ct. at 1912)); see also Shane v. Greyhound Lines, Inc., 868 F.2d 1057, 1062 (9th Cir.1989); Utility Workers v. Southern Cal. Edison Co., 852 F.2d 1083, 1085-86 (9th Cir.1988), cert. denied, 489 U.S. 1078, 109 S.Ct. 1530, 103 L.Ed.2d 835 (1989). We agree that each of Schlacter-Jones’s claims is preempted. In Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the Supreme Court set out the analysis we must use in determining whether § 301 preempts state law claims. “[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is preempted and federal labor-law principles—necessarily uniform throughout the nation—must be employed to resolve the dispute.” Id. at 405-06, 108 S.Ct. at 1881. In other words, an “application of state law is preempted by § 301 [of the LMRA] only if such application requires the interpretation of a collective-bargaining agreement.” Id. at 413, 108 S.Ct. at 1885. Section 301, however, does not preempt “state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Allis-Chalmers, 471 U.S. at 212, 105 S.Ct. at 1912. The gravamen of Schlacter-Jones’s claims for breach of implied contract and breach of the implied covenant of good faith and fair dealing is that she was discharged without good cause. The counts for constitutional violations, intentional infliction"
},
{
"docid": "15437040",
"title": "",
"text": "and therefore arises under federal law.” Balcorta v. Twentieth Century-Fox Film Corp., 208 F.3d 1102, 1107 (9th Cir.2000). The complete preemption exception is applied primarily under § 301 of the LMRA. Id. That Section vests jurisdiction in federal courts over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce.” 29 U.S.C. § 185(a). The Supreme Court has expanded § 301 preemption to cases whose resolution “is substantially dependent upon analysis of the terms of [a collective bargaining agreement].” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). However, § 301 does not preempt a claim alleging state law substantive rights that apply without regard to a CBA and can be resolved without interpreting a CBA. Lingle v. Norge Div. of Magic Chef, Inc. 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). In Livadas v. Bradshaw, 512 U.S. 107, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994), the Court provided further clarification, stating that “ § 301 cannot be read broadly to preempt non-negotiable rights conferred on individual employees as a matter of state law.... [W]hen the meaning of contract terms is not the subject of a dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Id. at 122-24, 114 S.Ct. 2068 (internal citations and footnotes omitted). Finally, in Cramer v. Consolidated Freightways, Inc., 255 F.3d 683 (9th Cir.2001) (en banc), we summarized the preemption analysis: The plaintiffs claim is the touchstone of [the preemption] analysis; the need to interpret the CBA must inhere in the nature of the plaintiffs claim. If the claim is plainly based on state law, § 301 preemption is not mandated simply because the defendant refers to the CBA in mounting a defense. Id. at 691. Here, Gregory’s claim is based entirely on state law. There is no dispute over the terms of the CBA or its interpretation. While overtime is calculated in accordance with the terms of the CBA, this"
},
{
"docid": "10256869",
"title": "",
"text": "between plaintiff and defendant and concern a work-related injury and its subsequent investigation. As such, they are governed by the grievance procedures set forth in the collective-bargaining agreement.” The court also quoted from an early settlement letter to Schnuck from Luecke’s attorney, who referred to the statements in question as occurring “[a]s a result of Schnuck’s attempt to enforce a drug testing policy in violation of the Cohective Bargaining Agreement with Local 88.” Concluding that the case was properly removed, the court granted summary judgment in defendant’s favor on preemption grounds. The Supreme Court has made clear that a state law claim is preempted by sec tion 301 only if the claim is “inextricably intertwined” with the terms of a collective-bargaining agreement. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985). The unanimous Court has stated, “[A]n application of state law is pre-empted by § 301 of the Labor Management Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement.” Lingle, 486 U.S. 399 at 413, 108 S.Ct. 1877 at 1885 (footnote omitted); see also Livadas v. Bradshaw, — U.S. -, -, 114 S.Ct. 2068, 2078, 129 L.Ed.2d 93 (1994) (“[W]e were clear [in Lingle ] that when the meaning of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished[.]”) (citing Lingle, 486 U.S. at 413 n. 12, 108 S.Ct. at 1885 n. 12). The proposition follows that “a state law claim may involve analysis of the same set of facts as a claim arising under the collective bargaining agreement without compelling preemption.” Hanks v. General Motors Corp., 906 F.2d 341, 343 (8th Cir.1990) (citing Lingle, 486 U.S. at 407-408, 108 S.Ct. at 1882-1883). In Lingle, an employee’s state-law action against her employer alleging that she was discharged in unlawful retaliation for claiming worker’s compensation benefits was declared to be independent of the collective-bargaining agreement even though the agreement expressly prohibited discharge without proper"
},
{
"docid": "20091673",
"title": "",
"text": "engaged in certain outrageous conduct and thereby caused plaintiff to suffer emotional distress. Specifically, plaintiff asserts that shortly after he declined a proposed salary reduction and request to resign, he was assigned “heavy labor duties” normally not assigned employees in his position; that he was instructed to submit to drug testing though he was not required to do so by virtue of his position; that defendant PIE refused to permit him to be re-tested for drug use though he offered to pay the cost of re-testing himself; and that he was provided with equipment and machinery defendant PIE knew to be in dangerous mechanical condition. When an employee who is covered by a collective bargaining agreement files a lawsuit stemming from a discharge from employment and which alleges state tort claims, the district court must carefully consider whether § 301 preemption applies. Section 301 of the LMRA creates a federal cause of action for breach of collective bargaining agreements. In order to preserve uniformity, even a suit sounding in tort, rather than on breach of a collective bargaining agreement, is governed by federal law if the action is “inextricably intertwined with consideration of the terms of [a] labor contract.” Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. at 1912. Moreover, § 301 preempts all state law causes of action which require interpretation of a labor contract’s terms. See, e.g., id. at 214-20, 105 S.Ct. at 1912-15 (finding preempted a state tort based on the duty to act in good faith and deal fairly, because the meanings of “good faith” and “fair dealing” were derived from the particular labor agreement). Accord Lingle v. Norge, Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988). As this court recognizes that § 301 does not preempt every employment dispute tangentially involving the labor agreement, see Lingle, 108 S.Ct. at 1881-83, it will proceed to analyze the plaintiff’s contentions under the Supreme Court’s most recent articulations of the standard: Does the application of state law “require[] the interpretation of a collective bargaining agreement,” Lingle, 108 S.Ct. at 1885,"
},
{
"docid": "347062",
"title": "",
"text": "with contractual relations against Agency Defendants. Third, a claim of tortious interference with contractual relations cannot be brought against a party to the contract, and thus cannot be brought against Employer Defendants. A. § 301 FEDERAL PREEMPTION It is well-settled that state law causes of action based upon a collective bargaining agreement or whose outcome otherwise depends upon analysis of the collective bargaining agreement’s terms are preempted by § 301 of the LMRA. Lingle v. Norge Div. of Magic Chef Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 1883, 100 L.Ed.2d 410 (1988); Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 1916, 85 L.Ed.2d 206 (1985) (“[WJhen resolution of a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the parties in a labor contract, that claim must either be treated as a § 301 claim, or dismissed as pre-empted by federal labor-contract law.”). The elements for a claim of tortious interference with contractual relations are: (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. Milne Employees Ass’n v. Sun Carriers, Inc., 960 F.2d 1401, 1411 (9th Cir.1991) (citing Pacific Gas & Elec. Co. v. Bear Steams & Co., 50 Cal.3d 1118, 1126, 270 Cal.Rptr. 1, 791 P.2d 587 (1990)). It is clear that resolution of this claim would require an interpretation of the CBA, at least with regard to elements (1) and (4). Certainly, this Court could not determine whether there was a breach of the contract without construing the terms of the contract. Therefore, a state cause of action for tortious interference with contractual relations, where the underlying contract is a collective bargaining agreement, is preempted by § 301. See Milne Employees Ass’n, 960 F.2d at 1411-12 (“[T]his court has generally found claims for interference with contractual relations and prospective economic advantage preempted by section 301.”); Scott v. Machinists Auto. Trades Dist. Lodge No."
},
{
"docid": "21854397",
"title": "",
"text": "dependent upon the terms of the private contract.” Lingle, 486 U.S. at 412-413, 108 S.Ct. 1877. . The NYHRL also prohibits discrimination on the basis of \"genetic predisposition or carrier status.” N.Y. Exec. Law § 296(1)(a). . The preemption standard which applies under the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq, converges with the standard which applies under the LMRA. Hawaiian Airlines, Inc., 512 U.S. at 263, 114 S.Ct. 2239. As a result, the Supreme Court has applied the LMRA preemption standard articulated in Lingle to resolve questions of RLA preemption. Id. The relevant issue with respect to preemption under either statute is whether \"the resolution of a state-law claim depends on an interpretation of the CBA.” Id. (citing Lingle, 486 U.S. at 405-406, 108 S.Ct. 1877). . The cases which the Defendants cite in support of their argument that the claims in the 2001 Action hinge on an interpretation of the CBA do not compel a contrary conclusion. Those cases held that New York common law actions premised on a contract were preempted by § 301 of the LMRA because they required the interpretation of a collective-bargaining agreement. See Monumental Builders, Inc. v. CBS Corp. (S.D.N.Y. June 15, 2000) No. 00 Civ. 220(DLC), 2000 WL 777893, at *1-*3 (claim for breach of an employment contract preempted by § 301); Wilhelm v. Sunrise Northeast, Inc. (D.Conn. 1995) 923 F.Supp. 330, 334-336 (claim for, inter alia, breach of employment contract preempted by § 301); Miree v. Singer (S.D.N.Y. Aug. 5, 1991) No. 91 Civ. 3259(MBM), 1991 WL 156323, at *1 (claims for, inter alia, wrongful discharge and tor-tious interference with contractual relations preempted by § 301); Amendolare v. Schenkers International Forwarders, Inc. (E.D.N.Y.1990) 747 F.Supp. 162, 172 (claims for, inter alia, breach of contract and tortious interference with contract preempted by § 301); Dragone v. M.J. Baynes, Inc. (S.D.N.Y.1988) 695 F.Supp. 720, 723-724 (claims for wrongful discharge and tortious interference with contract preempted by § 301). Cf. Seaver v. Yellow Freight System, Inc. (W.D.N.Y. Aug. 22, 1996) No. 96-CV-105A(H), 1996 WL 622639, at *4-*5 (claim for intentional infliction"
},
{
"docid": "2083657",
"title": "",
"text": "Inc., 486 U.S. 399, 403, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Accordingly, section 301 completely preempts any action predicated on state law if that action is either: (1) founded upon rights created by a collective bargaining agreement; or (2) substantially dependent upon analysis of that agreement. Lingle, 486 U.S. at 405, 410 n. 10, 108 S.Ct. 1877; Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). But not every dispute “tangentially involving a provision of a collective-bargaining agreement ] is preempted by § 301 or other provisions of the federal labor law.” Allis-Chalmers, 471 U.S. at 211, 105 S.Ct. 1904. “[A] plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement.” Caterpillar v. Williams, 482 U.S. 386, 396, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Here, defendant maintains that plaintiffs age discrimination and retaliation claims are preempted by section 301 and should be dismissed for failure to state a claim under the DCHRA because those claims “are inextricably intertwined” with the CBA governing his employment. Def.’s Mem. at 1-2. Plaintiff counters that defendant’s motion should be denied because his case “involves no construction or interpretation of the collective bargaining agreement.” Pl.’s Opp. at 1. But the preemption analysis involves more than just the question of whether it would be necessary to interpret or construe the CBA to resolve plaintiffs claims; the Court must ask: what is the source of the right that the plaintiff is trying to vindicate? See Caterpillar, 482 U.S. at 396, 107 S.Ct. 2425. Accordingly, the Court finds that plaintiffs age discrimination claim is preempted by section 301 because it is expressly founded upon rights created by the CBA. However, the retaliation claim seeks to vindicate rights that are independent of the CBA, and a resolution of that claim would not involve the interpretation or application of the CBA, so it"
},
{
"docid": "2508903",
"title": "",
"text": "under collective bargaining agreements. Justice Souter, writing for a unanimous court, disagreed. Presented with the opportunity to preempt California Labor Code provisions granting protections to terminated employees and providing penalties against employers for violation of those protections, the Court instead held preempted the California Labor Commissioner’s policy of refusing to enforce those provisions when the terminated employees were covered by a collective bargaining agreement containing an arbitration clause. Relying upon its prior decisions in Allis-Chalmers v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), and Lingle v. Norge, Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), the Court held that section 301 could not be read broadly to preempt non-negotiable rights conferred upon individual employees as a matter of state law and stressed that it is the legal character of the claim as “independent” of rights under the collective bargaining agreement that decides whether a state cause of action may go forward. The Court reiterated that “[w]hen the meaning of contract terms is not the subject of the dispute, the bare fact that a collective bargaining agreement will be consulted in the course of state-law litigation plainly does not require the claim to be extinguished.” Livadas, 512 U.S. at -, 114 S.Ct. at 2077, citing Lingle, 486 U.S. at 413, n. 12, 108 S.Ct. at 1885, n. 12 (“A collective bargaining agreement may, of course, contain information such as rate of pay ... that might be helpful in determining the damages to which a worker prevailing in a state-law suit is entitled.”). Accordingly, the Supreme Court concluded that these principles foreclosed even a color-able argument that Livadas’ claim under section 203 of the California Labor Code was preempted. The Court observed that beyond the simple need to refer to bargained for wages rates in computing the penalty, the collective bargaining agreement was irrelevant to the dispute between Livadas and her employer. The Supreme Court distinguished Livadas’ situation from the situation in Plumbing, Heating and Piping Employers Council of Northern California v. Howard, 53 Cal.App.3d 828, 836, 126 Cal.Rptr. 406 (1975),"
},
{
"docid": "21842823",
"title": "",
"text": "Labor Management Relations Act, which states: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. 29 U.S.C. § 185(a). Since 1962, the Supreme Court has held that § 301 preempts state law rules that substantially implicate the meaning of collective bargaining agreement terms. DeCoe v. General Motors Corp., 32 F.3d 212, 216 (6th Cir.1994) (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985) and Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962)). The need for uniformity and predictability in interpreting contract terms necessitates preemption. DeCoe, 32 F.3d at 215 (citing Lueck, 471 U.S. at 211, 105 S.Ct. 1904). Not every state-law suit asserting a right relating in some way to a collective bargaining agreement provision, or to the parties to the agreement, is preempted by § 301. Lueck, 471 U.S. at 220, 105 S.Ct. 1904. Section 301 does not preempt those substantive rights, independent of the labor contract itself, provided to workers by a state where those rights may be determined without interpreting the contract. Lingle v. Norge Div. of Magic Chef. Inc., 486 U.S. 399, 409, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). The Court continued: [E]ven if dispute resolution to a collective bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is “independent” of the agreement for § 301 pre-emption purposes. Id. at 409-10, 108 S.Ct. 1877 (footnote omitted); see also Livadas v. Bradshaw, 512 U.S. 107, 123, 114 S.Ct. 2068, 129 L.Ed.2d 93 (1994) (the deciding factor in a preemption case is the “legal character of a claim, as ‘independent’ of rights under the collective bargaining"
},
{
"docid": "20374985",
"title": "",
"text": "genuine issue as to the evidentiary facts, but there must also be no controversy as to the inferences to be drawn from them. Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 57 (2d Cir.1987). Preemption Section 301 of LMRA confers subject matter jurisdiction on the federal courts over suits alleging violations of the collective bargaining agreement. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988) referring to Teamsters v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962). In enacting § 301, Congress intended that uniform federal labor law would prevail over inconsistent local rules. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209-10, 105 S.Ct. 1904, 1910-11, 85 L.Ed.2d 206 (1984); Lucas Flour Co., 369 U.S. at 104, 82 S.Ct. at 577. As a result, disputes over the meaning to be given a contract term and the consequences of a breach of contract must be resolved according to uniform federal law. Allis-Chalmers, 471 U.S. at 211, 105 S.Ct. at 1911. When resolution of a state-law claim depends upon interpretation of a collective bargaining agreement, the claim must either be treated as a § 301 claim, or dismissed as preempted by federal labor-contract law. Allis-Chalmers, 471 U.S. at 221, 105 S.Ct. at 1916; Lingle, 108 S.Ct. at 1883. If a state-law claim can be resolved without interpreting the collective bargaining agreement, the claim is “independent” of the agreement and is not preempted by § 301. Lingle, 108 S.Ct. at 1883. Nor may plaintiff avoid preemption by also bringing claims against his immediate supervisor, Pantano. Hillard v. Dobelman, 774 F.2d 886, 887 (8th Cir.1985) (plaintiff's claim of tortious interference against three supervisory employees preempted by § 301). To the extent plaintiff’s claims against Coca Cola are found to be preempted by § 301, the same claims against Pantano are likewise preempted. 1. Claims Arising Out of Termination Defendant argues that plaintiff’s employment and termination were governed by a collective bargaining agreement (“CBA”), rendering plaintiff’s claims preempted by § 301. Plaintiff concedes he became a member of"
},
{
"docid": "8435506",
"title": "",
"text": "procedures and provides that disputes under the agreement will be resolved under the CBA’s grievance procedure. Thus, determining whether a breach of the settlément agreement occurred would necessarily “require[ ] the interpretation of [the CBA].” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). Moreover, the subject matter of the settlement agreement—Class B longshore positions—is covered by the CBA. We have previously held that where the position in dispute is “covered by the CBA, the CBA controls and any claims seeking to enforce the terms of [an agreement] are preempted.” Beals v. Kiewit Pac. Co. Iota, 114 F.3d 892, 894 (9th Cir.1997). See also Young, 830 F.2d at 997-98 (alleged oral contract between employee and employer regarding reinstatement controlled by CBA since employee held position covered by collective bargaining agreement); Stallcop 820 F.2d at 1048 (alleged oral agreement made by employer in connection with employee’s reinstatement was only effective as part of the collective bargaining agreement). For the same reasons, plaintiffs’ state law claim for breach of the implied covenant of good faith and fair dealing is preempted. This covenant “derives from the contract [and] is defined by the contractual obligation of good faith,” and therefore are preempted to the same extent the breach of contract claim is. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 218, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985); see also Schlacter-Jones v. General Tel. of Cal., 936 F.2d 435, 440 (9th Cir.1991) (holding claim for breach of implied covenant of good faith and fair dealing preempted by § 301); Young, 830 F.2d at 999-1000 (same). B. Promissory Estoppel Plaintiffs’ second cause of action is founded on promissory estoppel. But it alleges no more than that plaintiffs relied on the written settlement agreement. On appeal, plaintiffs proffer no argument that the promissory estoppel claim is subject to a different analysis than the contract claim. Hence, it is preempted for the same reasons. C. Breach of Fiduciary Duties Plaintiffs’ third cause of action alleges that “Defendants, because of their unique position and relationship to the Plaintiffs, and"
},
{
"docid": "2003805",
"title": "",
"text": "at 1329-30 (citing Allis-Chalmers Corp., 471 U.S. at 217, 105 S.Ct. 1904). Not every tort claim, however, relating to employment will be subject to preemption under § 301. Id. at 1330. To survive preemption under § 301, the tort claims must be “independent” of the CBA. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1989); Allis-Chalmers Corp., 471 U.S. at 213, 105 S.Ct. 1904 (analyzing state-law claim to determine if it was “independent of any right established by contract, or, instead, whether evaluation of the tort claim [was] inextricably intertwined with consideration of the terms of the labor contract”); DeCoe v. Gen. Motors Corp., 32 F.3d 212, 216 (6th Cir.1994) (citing Lingle). In Allis-Chalmers Corp., for example, the plaintiff brought a Wisconsin tort claim of bad-faith handling of an insurance claim against the defendant. The plaintiffs right to insurance, however, had been established by the collective bargaining agreement entered into by his union and the defendant. In finding the claim to be preempted, the Supreme Court explained, “[b]eeause the right asserted not only derives from the contract, but is defined by the contractual obligation of good faith, any attempt to assess liability here inevitably will involve contract interpretation.” 471 U.S. at 218, 105 S.Ct. 1904. Yet, in Lingle, the Supreme Court found that the plaintiffs retaliatory discharge claim, which alleged retaliation for filing a workers’ compensation claim, was not preempted by § 301. The Supreme Court reasoned, “the state-law remedy in this case is ‘independent’ of the collective-bargaining agreement in the sense of ‘independent’ that matters for § 301 pre-emption purposes: resolution of the state-law claim does not require construing the collective bargaining agreement.” 486 U.S. at 407, 108 S.Ct. 1877. Thus, the basic question before this court is whether Mattis’s state-law tort claims are “independent” of the CBA that governed his employment. To determine whether a state-law claim is sufficiently “independent” to survive § 301 preemption, this court has adopted a two-step inquiry. DeCoe, 32 F.3d at 216-17. First, courts must determine whether resolving the state-law claim would require"
}
]
|
641345 | public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Product markets do not have to meet all of these indicia in order to be a line of commerce under Section 7. What must ultimately be determined is whether the product market is meaningful in terms of trade realities and forms an area of effective competition. Crown Zellerbach Corp. v. F. T. C., 296 F.2d 800, 811 (9th Cir. 1961), cert. den. 320 U.S. 937, 82 S.Ct. 1581, 8 L.Ed.2d 807 (1962); United States v. Pennzoil Co., 252 F.Supp. 962, 974 (W.D.Pa.1965). For example, in REDACTED the Supreme Court found aluminum conductor to be a product market on the basis of certain distinctive end uses and distinct prices. In Reynolds Metals Co. v. F. T. C., 114 U.S.App.D.C. 2, 309 F.2d 223, 227 (1962), in an opinion by now Chief Justice Burger, the Court of Appeals sustained a finding that florists’ foil was a line of commerce distinct from all other varieties of aluminum foil solely on the basis of (1) industry recognition, (2) distinct customers and (3) distinct prices. And in United Nuclear Corp. v. Combustion Engineering, 302 F.Supp. 539 (E.D.Pa. 1969), the court found that fabricated nuclear fuel “obviously” formed a line of commerce, solely on the basis | [
{
"docid": "22996880",
"title": "",
"text": "our prior decisions. In Brown Shoe, this Court held that there are broad product markets within which there may be “well-defined” and “economically significant” submarkets. 370 U. S., at 325. The Court in that case did not attempt to formulate any rigid standard for determining submarket boundaries, but indicated that a broad-ranging pragmatic evaluation of market realities was required. The federal trial courts were admonished to examine “such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Ibid. These “practical indicia” to be considered in determining submarket boundaries express in practical terms the basic economic concept that markets are to be defined in terms of the close substitutability of either product (demand) or production facilities (supply), since it is ultimately the degree of substitutability that limits the exercise of market power, and it is only by delimiting the area of effective competition that an acquisition’s competitive effects can be ascertained. The District Court applied these practical indicia with meticulous care, and found that the conductor industry-does not differentiate between copper and aluminum insulated products; that copper and aluminum products are functionally interchangeable; and that there are no unique production facilities, distinct customers or specialized vendors for insulated aluminum conductor products. 214 F. Supp., at 509. The trial judge did not, as the Court implies, ignore the fact that the prices of copper and aluminum insulated products are generally distinct. It explicitly recognized this fact, but concluded on closer examination of the industry that this price difference did not foreclose “actual competition.” Ibid. Accordingly, making a practical judgment based on the Brown Shoe submarket indicia, the District Court concluded that insulated aluminum conductor had not been established as a line of commerce. And since the other alleged line of commerce — aluminum conductor generally — was no more than the sum of bare and insulated aluminum conductors, the court concluded that it, too, could not constitute an “area of effective competition,” since as to the"
}
]
| [
{
"docid": "21047610",
"title": "",
"text": "within a broad market, “well-defined sub-markets may exist which, in themselves, constitute product markets for antitrust purposes.” Brown Shoe, 370 U.S. at 325, 82 S.Ct. 1502; see also Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210, 218 (D.C.Cir.1986), cert. denied, 479 U.S. 1033, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987). With respect to such submarkets, the Court explained, “[b]eeause Section 7 of the Clayton Act prohibits any merger which may substantially lessen competition ‘in any line of commerce,’ it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. If such a probability is found to exist, the merger is proscribed.” Brown Shoe, 370 U.S. at 325, 82 S.Ct. 1502. The Court in Brown Shoe provided a series of factors or “practical indicia” for determining whether a submarket exists including “industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” 370 U.S. at 325, 82 S.Ct. 1502. As “practical indicia,” these factors are not necessarily criteria to be rigidly applied. See International Tel. & Tel. Corp. v. General Telephone & Electronics Corp., 518 F.2d 913, 932 (9th Cir.1975) (explaining that Brown Shoe’s practical indicia were meant as “practical aids ... rather than with the view that their presence or absence would dispose, in talismanic fashion, of the sub-market issue”). In fact, subsequent cases have found that submarkets can exist even if only some of these factors are present. See, e.g., Beatrice Foods Co. v. FTC, 540 F.2d 303 (7th Cir.1976) (finding submarket based on industry recognition, peculiar characteristics of the product, and differences in production methods and prices). Therefore, as the courts have clarified, the determination of the relevant product market is “ ‘a matter of business reality ... of how the market is perceived by those who strive for profit in it.’ ” Cardinal Health, 12 F.Supp.2d at 46 (quoting FTC v."
},
{
"docid": "3269927",
"title": "",
"text": "one “or” the other when, in fact, the submarket criteria are to be used in conjunction with the basic test to more precisely define the relevant markets. Accordingly, this Court’s analysis must now proceed to an articulation of the basic definitions of relevant geographic and product markets, together with identifying the additional submarket criteria. Product Market Test The essential test for ascertaining the relevant product market involves the identification of those products or services that are either (1) identical to or (2) available substitutes for the defendant’s product or service. United States v. E.I. DuPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956) (The “Cellophane Case”). This comparative analysis has been characterized as the “reasonable interchangeability” standard. The DuPont Court noted that reasonable interchangeability may be gauged by (1) the product uses, i.e., whether the substitute products or services can perform the same function, and/or (2) consumer response (cross-elasticity); that is, consumer sensitivity to price levels at which they elect substitutes for the defendant’s product or service. See also United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). Geographic Market Test The central rubric in evaluating the relevant geographic market was stated in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961) as follows: [T]he area of effective competition in the known line of commerce must be charted by careful selection.of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. Id. at 327, 81 S.Ct. at 627. Submarket Criteria Both of the standard market tests may be utilized in conjunction with the submarket criteria promulgated in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962): A submarket may be determined by examining such practical indicia as (1) industry or public recognition of the sub-market as a separate economic entity, (2) the product’s peculiar characteristics and uses, (3) unique production facilities, (4) distinct customers, (5) distinct prices, (6) sensitivity to price changes, and (7) specialized"
},
{
"docid": "8089723",
"title": "",
"text": "sustained if they contravene the policies of Section 2, though they might not constitute a violation of Section 2 itself. See Rader v. Balfour, supra. The Supreme Court in United States v. Grinnell Corp., 384 U.S. 563, 570-571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966), outlined the elements of Section 2 as: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. Petitioners contend that the Commission misapplied the law in defining the relevant market as the national college fraternity insignia-bearing goods market, and that there is insufficient evidence to support the finding that petitioner held a monopolistic share of the market. In addition, petitioners assert that none of their activities in the market — from their use of the official jeweler contracts to their manipulation of the IRAC and Balfour’s secret operation of BPA —constitute conduct amounting to monopolization. 1. The Relevant Market. The Commission determined that national college fraternity insignia-bearing goods constituted the relevant market in this case. For this, it relied on the definition of submarkets, as stated in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). The Commission said that “the relevant market for purposes of Section 7 [of the Clayton Act] must be determined by reference to: ‘such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers', distinct prices, sensitivity to price changes and specialized vendors.’ ” Brown at 325, 82 S.Ct. at 1524. See Reynolds Metals Co. v. F.T.C., 114 U.S.App.D.C. 2, 309 F.2d 223, 226-229 (1962). The Commission concluded, after an examination of the facts, that the relevant market was national college insignia-bearing goods: In the instant case competing jewelers testified that they considered national college fraternity jewelry as a separate and distinct sales market. Entry into this market would require a separate and unique sales and distribution system,"
},
{
"docid": "8106657",
"title": "",
"text": "product markets for antitrust purposes. * * * The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Brown Shoe Co. v. United States, 370 U.S. at 325, 82 S.Ct. at 1523, 1524. (Emphasis added). (Footno-te omitted) Analyzing the facts of the present case makes it abundantly clear that under these standards the production and sale of florist foil may rationally be defined by the Commission as comprising the relevant line of commerce in terms of (1) public and industrial recognition of it as a separate economic entity, (2) its distinct customers and (3) its distinct prices. Contrary to the Commission’s assertion, the evidence is not convincing in the matters of peculiar characteristics and use. However, the former elements disclosed by the record are sufficient to support the Commission’s determination that the florist foil market may be legitimately separated from aluminum foil markets generally and thus may be appropriately viewed as the area in which the activity allegedly prohibited by Sec. 7 occurred. In light of the fluidity of the law in this antitrust area, it may be useful to set forth the factual basis on which we hold the Commission was rationally entitled to find that florist foil forms a relevant market or line of commerce and for our disagreement in part with the Commission as to other matters. The record indicates that total annual United States shipments of aluminum foil of all thicknesses below .006 inches averaged close to 200 million pounds in 1956 and 1957, approximately 75% of which was utilized in some form of packaging or wrapping. However, not all foil used for packaging or wrapping is suitable for the particular use which any given market may require. Suitability for use in particular markets is determined first by thickness. While all sheet aluminum below .006 inches is considered foil, the variety of thicknesses employed below that is large and"
},
{
"docid": "12452022",
"title": "",
"text": "the cross-elasticity of demand between the product itself and substitutes for it. Thus, the issue is whether, in the banking industry in Colorado (or the otherwise relevant geographic market), the various correspondent banking services compete with each other within one product market, or whether they form various more or less distinct, product markets? In order to answer this question, an examination of the economic nature of correspondent banking generally and as specifically set forth in the evidence in this case is necessary. The legal standard for determining the existence, for antitrust purposes, of a line of commerce appears to be that set forth in Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962). If commercial banking generally is to be considered a broad line of commerce which includes correspondent banking, * * * within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Because § 7 of the Clayton Act prohibits any merger which may substantially lessen competition “in any line of commerce” (emphasis supplied), it is necessary to examine the effects of a merger in each such economically significant submarket to determine if there is a reasonable probability that the merger will substantially lessen competition. In terms of the criteria in Brown Shoe, supra, the evidence presented in this case is somewhat inconclusive as to whether correspondent banking constitutes a separate and distinct product market (or product submarket of commercial banking generally). The testimony did show that there is within the banking community at least, some recognition of the submarket as a separate economic activity and the alleged “line of products” can be said"
},
{
"docid": "8550716",
"title": "",
"text": "curtain wall is a line of commerce and that aluminum curtain wall is a well-defined submarket therein and as such is also a line of commerce under Section 7. In arriving at this conclusion, we must look to see what the Supreme Court has said in recent cases as it applies to the facts in this case. In Brown Shoe Co. v. United States, 370 U.S. 294, 1. c. 324, 82 S.Ct. 1502, 1. c. 1523, 8 L.Ed.2d 510, the Court said: “[D]etermination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition ‘within the area of effective competition.’ Substan-tiality can be determined only in terms of the market affected.” and 1. c. 325, 82 S.Ct. 1. c. 1523, 1524: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submar-kets may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 593-595. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. * * * ” In this case the broad outer boundaries are “curtain wall” where all types of building materials compete. Within that outer market “metal curtain wall” and “aluminum curtain wall” are meaningful product markets or “lines of commerce”. The industry recognizes “metal curtain wall” as distinct and different from precast or any other type of curtain wall. The customers are the building owners as they are guided by the architects and contractors. When an aluminum curtain wall is called for, the vendors of precast concrete, brick or stone are not called in to make a sub-bid. Only those vendors of aluminum."
},
{
"docid": "3269928",
"title": "",
"text": "United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). Geographic Market Test The central rubric in evaluating the relevant geographic market was stated in Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961) as follows: [T]he area of effective competition in the known line of commerce must be charted by careful selection.of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. Id. at 327, 81 S.Ct. at 627. Submarket Criteria Both of the standard market tests may be utilized in conjunction with the submarket criteria promulgated in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962): A submarket may be determined by examining such practical indicia as (1) industry or public recognition of the sub-market as a separate economic entity, (2) the product’s peculiar characteristics and uses, (3) unique production facilities, (4) distinct customers, (5) distinct prices, (6) sensitivity to price changes, and (7) specialized vendors. Id. at 325, 82 S.Ct. at 1523. Two examples illustrate the manner by which submarket criteria are to be utilized as an adjunct to the standard product and geographic market analyses. In Brown Shoe, the Court was confronted with a proposed merger between Brown Shoe and the Kinney Co., a shoe manufacturer and retailer. Brown was the nation’s third largest shoe retailer; Kinney, the eighth largest. The government instituted suit to prevent the merger because the combination of Brown and Kinney would create a monopoly in the “footwear” product market. The District Court, recognizing industry practice and public perception, found separate footwear markets, later characterized as sub-markets, of “men’s,” “women’s,” and “children’s” shoes. In International Boxing Club of New York v. United States, 358 U.S. 242, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959), the government initiated legal action to invalidate an agreement purporting to regulate the frequency and television exposure of boxing matches sanctioned by organizations in Illinois and New York. The defendants challenged the finding that the relevant product market was championship boxing"
},
{
"docid": "17129563",
"title": "",
"text": "U.S. at page 325, 82 S.Ct. at page 1523: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined sub-markets may exist which, in themselves, constitute product markets for antitrust purposes.” In Crown Zellerbach Co. v. Federal Trade Commission, supra, 296 F.2d at page 811, this was said: “All that the Commission was required to do was to ascertain and find a product line which was sufficiently inclusive to be meaningful in terms of trade realities. * * * In the statutory phrase ‘in any line of commerce’, the word entitled to emphasis is ‘any’. Any line of commerce does not mean the same as the entire line of commerce, or all lines of commerce engaged in or touched upon by the acquired concern. * * * ” So also in Reynolds Metal Co. v. Federal Trade Commission, 114 U.S.App.D.C. 2, 309 F.2d 223, 1962, a finding of the Commission was affirmed to the effect that the sub-market of the production and sale of decorative aluminum foil to the florist trade was a relevant line of commerce, distinguishable from the broadest market of decorative aluminum foil. In discussing the Brown Shoe Co. case, supra, the Court stated, 309 F.2d at page 226: “ * * * It is now clear that mere potential interchangeability or cross-elasticity may be insufficient to mark the legally pertinent limits of a ‘relevant line of commerce.’ The ‘outer limits’ of a general market may be thus determined, but sharply distinct submarkets can exist within these outer limits which may henceforth be the focal point of administrative and judicial inquiry under Section 7.” At page 227: “Analyzing the facts of the present case makes it abundantly clear that under these standards the production and sale of florist foil may rationally be defined by the Commission as comprising the relevant line of commerce in terms of (1) public and industrial recognition of it as a separate economic entity, (2) its distinct customers and"
},
{
"docid": "9633324",
"title": "",
"text": "The decision as to whether to employ coaxial cable or microwave radio for a particular trunk circuit is a matter of economies, i. e„ which will give the best service at the lowest cost. This does not mean, however, that the market for communications wire and cable is one and the same with the market for microwave and similar electronic carrier equipment. Even though cable may be functionally interchangeable, Brown Shoe Co., Inc. v. U. S., 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), made it clear that mere potential interchangeability or cross-elasticity may be insufficient to mark the legally pertinent limits of a relevant line of commerce. Sharply distinct sub-markets can exist within the outer limits of a general market, and such submarkets may be the focal point of judicial inquiry under Clayton § 7. See Reynolds Metals Co. v. F. T. C., 309 F.2d 223, 226. “The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Brown Shoe, 370 U.S. at 325, 82 S.Ct. at 1524. The number of firms making only electronic transmission products, the gross difference in the manufacturing facilities, the peculiar characteristics thereof, the distinct prices and the general recognition in the industry of a submarket in electronic transmission equipment as a separate economic entity, all impel this court to find that cable and wire manufacture is a separate economic unit of the communications industry and that electronic transmission products constitute a submarket in the transmission equipment field separate and distinct from the submarket in wire and cable. Product Market GTE urges that, since the three types of equipment are not functionally interchangeable, apparatus, switching and transmission equipment are each a separate line of commerce. It further maintains that ITT has failed to prove each market, i.e., the sales involved in each; thus ITT’s case must fall for lack of such proof. Both du Pont and"
},
{
"docid": "3353977",
"title": "",
"text": "market (including both primary and secondary lead) or the secondary lead market alone is the relevant product market for testing the RSR/Quemetco merger under Section 7. RSR contends that substantial competition exists between primary and secondary producers in the production of soft lead; thus, the overall lead market must be considered. The FTC, relying on distinctions between the primary and secondary lead markets, argues that the secondary lead market alone is the relevant product market. The factors used to determine the relevant product market in an antitrust case were set out by the Supreme Court in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). The Court stated that the outer boundaries of a product market can be determined by the “reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Id. at 325, 82 S.Ct. at 1523. The Court observed that well-defined submarkets may also exist which, in themselves, can constitute product markets for antitrust purposes, and suggested that determining the boundaries of such a submarket could be done “by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Id. The Court then explained that, since Section 7 prohibits any merger that may substantially lessen competition in any line of commerce, the effects of a merger must be examined in each economieally-significant submarket to determine if there is a reasonable possibility that the merger will substantially lessen competition in that submarket. If the merger could do so, it violates Section 7. Id. Finally, the Court held that these indicia apply to a horizontal merger, the type of merger involved in the instant case. Id. at 336, 82 S.Ct. 1502. In International Telephone & Telegraph Corp. v. General Telephone & Electronics Corp., 518 F.2d 913, 932 (9th Cir. 1975), this court recognized that the Brown Shoe indicia are to be used as practical aids rather than as conclusive"
},
{
"docid": "5937040",
"title": "",
"text": "and substitutes for it.” C.E. Servs., Inc. v. Control Data Corp., 759 F.2d 1241, 1245 (5th Cir.1985) (citing Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962)). Within the product market, there may exist submarkets which, in themselves, represent product markets for antitrust purposes. Heatransfer Corp. v. Volkswagenwerk, A. G., 553 F.2d 964, 980 (5th Cir.1977) (citing United States v. E.I. duPont de Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957)). “The boundaries of such a sub-market may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Heatransfer Corp., 553 F.2d at 980 (quoting Brown Shoe Co., 370 U.S. at 325, 82 S.Ct. 1502). The district court properly determined, and neither of the parties contest, that the relevant product market is bottled water. B. Geographic Market We focus on the area of “effective competition” in determining the relevant geographic market. Jim Walter Corp. v. F.T. C., 625 F.2d 676, 682 (5th Cir.1980). The area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates and to which buyers can practicably turn for supplies. Tampa Elec. Co., 365 U.S. at 327, 81 S.Ct. 623. The geographic market must “ ‘correspond to the commercial realities’ of the industry and ‘be economically significant.’ ” Brown Shoe Co., 370 U.S. at 336-337, 82 S.Ct. 1502. “Thus, although the geographic market in some instances may encompass the entire Nation, under other circumstances it may be as small as a single metropolitan area.” Id. (citation omitted). When determining whether a geographic market corresponds to commercial realities, courts have taken into account practical considerations such as the size, cumbersomeness, and other characteristics of the relevant product. In addition, determinants that affect the behavior of market participants may also be considered such as regulatory constraints impeding the free flow"
},
{
"docid": "17129564",
"title": "",
"text": "affirmed to the effect that the sub-market of the production and sale of decorative aluminum foil to the florist trade was a relevant line of commerce, distinguishable from the broadest market of decorative aluminum foil. In discussing the Brown Shoe Co. case, supra, the Court stated, 309 F.2d at page 226: “ * * * It is now clear that mere potential interchangeability or cross-elasticity may be insufficient to mark the legally pertinent limits of a ‘relevant line of commerce.’ The ‘outer limits’ of a general market may be thus determined, but sharply distinct submarkets can exist within these outer limits which may henceforth be the focal point of administrative and judicial inquiry under Section 7.” At page 227: “Analyzing the facts of the present case makes it abundantly clear that under these standards the production and sale of florist foil may rationally be defined by the Commission as comprising the relevant line of commerce in terms of (1) public and industrial recognition of it as a separate economic entity, (2) its distinct customers and (3) its distinct prices. * * *” In United States v. Aluminum Co. of America et al., supra, aluminum conductor wire and cable was held to be a sub-market and was a separate line of commerce for the purposes of § 7, and this was so in spite of the fact that it had its copper counter-part. In United States v. El Paso Natural Gas Co. et al., supra , 376 U.S. at page 657, 84 S.Ct. at page 1047, the Court said “the production, transportation, and sale of natural gas is a ‘line of commerce’ within the meaning of § 7.” That then is not to say that raw materials may not be a “line of commerce”; for it is conceivable arguendo et exemplar that green coffee, commercial diamonds, silk, etc., may be products having a line of commerce within the meaning of § 7. In United States v. E. I. duPont de Nemours & Co. et al., supra, at page 593, 77 S.Ct. at page 877, it was stated “that automotive finishes and"
},
{
"docid": "11478031",
"title": "",
"text": "Court’s holding, Cahn did have monopoly power, and that a remand is therefore necessary for findings on issues that court did not reach. 1. The Relevant Market If electromagnetic microbalances constitute a relevant submarket for antitrust purposes, Cahn had a monopoly in that sub-market, for despite its 8.2 percent share of the sales of all precision balances it accounted for over 90 percent of the sales of electromagnetic microbalances. The District Court, however, rejected Sargent-Welch’s submarket contention, finding, The Cahn ELECTROBALANCE line has competed with a wide variety of products, including many balances with different designs and specifications which are not referred [to] as “microbalances” or “millibalances”, and many products that are not balances. We hold this finding clearly erroneous. Cf. Telex Corp. v. International Business Machines Corp., 510 F.2d 894, 915 (10th Cir.), cert, dismissed, 423 U.S. 802, 96 S.Ct. 8, 46 L.Ed.2d 244 (1975). In determining what constitutes a relevant market for antitrust purposes, the goal is to “delineate markets which conform to areas of effective competition and to the realities of competitive practice.” L. G. Balfour Co. v. FTC, 442 F.2d 1, 11 (7th Cir. 1971). The “area of effective competition” may be a small submarket supplying specialized products or services. See Beatrice Foods Co. v. FTC, 540 F.2d 303, 307-309 (7th Cir. 1976); Cass Student Advertising, Inc. v. National Educational Advertising Services, Inc., 516 F.2d 1092, 1095 (7th Cir.), cert, denied, 423 U.S. 986, 96 S.Ct. 394, 46 L.Ed.2d 303 (1975). See also United States v. Connecticut National Bank, 418 U.S. 656, 664, 94 S.Ct. 2788, 41 L.Ed.2d 1016 (1974). In delineating a relevant submarket, we are to look at such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1524, 8 L.Ed.2d 510 (1962). The most important of these factors is uniqueness of the product’s functions and therefore its uses. If two products are “reasonably interchangeable"
},
{
"docid": "15502450",
"title": "",
"text": "which the merged companies operate. Federal Trade Commission v. Procter & Gamble Co. (hereinafter “Clorox”) 386 U.S. 568, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967); Reynolds Metals Co. v. Federal Trade Commission, 114 U.S.App.D.C. 2, 309 F.2d 223 (1962). The fact that different products may in some sense be competitive with each other is not sufficient to place them in the same market if by themselves they constitute distinct product lines. United States v. Aluminum Co. of America (Alcoa-Rome Cable), 377 U.S. 271, 84 S.Ct. 1283, 12 L.Ed.2d 314 (1964). Nor does the availability of substitute products compel the conclusion that they belong in the same relevant market. United States v. E. I. DuPont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), Reynolds Metals Co. v. Federal Trade Commission, supra. In Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Supreme Court addressed itself to the task of clarifying some of the uncertainty surrounding the concept of relevant market. There, the Court said: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for anti-trust purposes. United States v. E. I. DuPont De Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes and specialized vendors.” (Emphasis supplied.) In the present case, the Commission followed, as far as possible, the guidelines laid down in Brown Shoe. It found that the appropriate line of commerce or relevant product market within which to test the impact of the G.F.-S.O.S. merger was household steel wool. Appellant challenges this finding, accusing the Commission of “untenable gerrymandering” because"
},
{
"docid": "3202235",
"title": "",
"text": "with peculiar characteristics and uses as described in duPontGeneral Motors. Those peculiar characteristics and uses were found to be in the superior raw materials and labor with which those products were constructed as distinguished from the low priced ones; in their particular suitability for use in organized competitive games and in that they were not interchangeable with lower priced items for the purposes of their purchasers in the market. The Commission found that, these higher priced products constituted-a distinct area of effective competition. Segments of product lines have been held to be relevant market areas or lines-of commerce in a number of cases. In Reynolds Metals Co., FTC Dkt. 7009, CCH Trade Reg.Rep. par. 28,533 (1959) the Commission held that “decorative aluminum foil for florists” is a separate line of commerce from “aluminum foil generally” because of different, physical characteristics in use, marketing characteristics, price behavior and other factors. In United States v. Bethlehem Steel Corp., 168 F.Supp. 576 (S.D.N.Y.1958) the court refused to find that “pipe” constituted a line of commerce, but found that buttweld pipe, electric-weld pipe and seamless pipe each were distinct lines of commerce, on the basis of the peculiar characteristics and uses standards. In Crown Zellerbach Corp. v. Federal Trade Commission, FTC Dkt. 6180, 54 FTC 769 (1957), affirmed 296 F.2d 800 (9 Cir. 1961), census coarse papers were held to be lines of commerce as distinguished from other census papers. In International Boxing Club of New York v. United States, 358 U.S. 242, 249, 79 S.Ct. 245, 3 L.Ed.2d 270 (1959), a Sherman Act case, the Court sustained the finding that the relevant market was the promotion of championship boxing contests in contrast to all professional boxing contests. The Commission correctly found that AGMA price categories within product lines constitute separate and distinct lines of commerce and that the higher priced categories were the relevant lines of commerce for the purpose of appraising the competitive effect of the acquisition in this case. The Athletic Goods Industry as a Relevant Line op Commerce The Commission also found “that the industry itself is a relevant market"
},
{
"docid": "5611363",
"title": "",
"text": "belong in the same relevant market. United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 77 S.Ct. 872, 1 L.Ed.2d 1057 (1957), Reynolds Metals Co. v. Federal Trade Commission, supra. In Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Supreme Court addressed itself to the task of clarifying some of the uncertainty surrounding the concept of relevant market. There, the Court said: “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within this broad market, well-defined submarkets may exist which, in themselves, constitute product markets for anti-trust purposes. United States v. E. I. Du Pont De Nemours & Co., 353 U.S. 586, 593-595, 77 S.Ct. 872, 877, 1 L.Ed.2d 1057. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes and specialized vendors.” * * * [Emphasis supplied by the Court in General Foods.] See also Crown Zellerbach Corp. v. FTC, 296 F.2d 800, 814-15 (9th Cir. 1961), cert. denied, 370 U.S. 937, 82 S.Ct. 1581, 8 L.Ed.2d 807 (1962); B. Bock, Mergers and Markets, A Guide to Economic Analysis of Case Law 87 (3d ed. 1964); B. Bock, Mergers and Markets, An Economic Analysis of Case Law 27 (1960). Application of the Brown Shoe criteria to the facts established in this case leads to the conclusion that Pargas has successfully demonstrated a strong probability of success in establishing at trial that LP-gas constitutes a relevant product market for purposes of section 7 of the Clayton Act. Despite the fact that fuels such as wood, coal, fuel oil, natural gas and electricity are to some greater or lesser extent functionally interchangeable with LP-gas, there is evidence in this record to indicate that because of the unique characteristics of LP-gas, certain"
},
{
"docid": "8089724",
"title": "",
"text": "determined that national college fraternity insignia-bearing goods constituted the relevant market in this case. For this, it relied on the definition of submarkets, as stated in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). The Commission said that “the relevant market for purposes of Section 7 [of the Clayton Act] must be determined by reference to: ‘such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers', distinct prices, sensitivity to price changes and specialized vendors.’ ” Brown at 325, 82 S.Ct. at 1524. See Reynolds Metals Co. v. F.T.C., 114 U.S.App.D.C. 2, 309 F.2d 223, 226-229 (1962). The Commission concluded, after an examination of the facts, that the relevant market was national college insignia-bearing goods: In the instant case competing jewelers testified that they considered national college fraternity jewelry as a separate and distinct sales market. Entry into this market would require a separate and unique sales and distribution system, additional production facilities and the training of specialized sales personnel. Furthermore, the national college fraternity system constitutes a unique and distinct class of purchasers whose interests are different from other organizations purchasing emblematic jewelry. The existence of several small firms, devoted solely to the sale of insignia products to national college fraternities gives added support to the examiner’s market definition. [Petitioners] themselves maintain a separate sales department, known as the Fraternity Division, limited to the sale of fraternity insignia products. This Division has its own organizational structure, sales bulletin and commission schedules and utilizes its own competitive methods which differ from the sales methods employed by [petitioners’] other product sales divisions. [Reference to pages in record omitted.] We do not agree with petitioners’ argument that the geographic market should have included local, as well as national, college fraternities. The Commission based its market analysis on the relationship of the purchaser fraternities to the suppliers and the nature and organization of the fraternities themselves as that affects the suppliers’ distribution and sales system. Also relevant to"
},
{
"docid": "8106656",
"title": "",
"text": "The tests are constant. That market is composed of products that have reasonable interchangeability for the purposes for which they are produced — price, use and qualities considered.” Id. at 404, 76 S.Ct. at 1012. However, in the very recent case, Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), the concepts of interchangeability of use and cross-elasticity of demand underwent certain important qualifications and development. It is now clear that mere potential interchangeability or cross-elasticity may be insufficient to mark the legally pertinent limits of a “relevant line of commerce.” The “outer limits” of a general market may be thus determined, but sharply distinct submarkets can exist within these outer limits which may henceforth be the focal point of administrative and judicial inquiry under Section 7. “The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it. However, within the broad market, well-defined submar-kets may exist which, in themselves, constitute product markets for antitrust purposes. * * * The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors.” Brown Shoe Co. v. United States, 370 U.S. at 325, 82 S.Ct. at 1523, 1524. (Emphasis added). (Footno-te omitted) Analyzing the facts of the present case makes it abundantly clear that under these standards the production and sale of florist foil may rationally be defined by the Commission as comprising the relevant line of commerce in terms of (1) public and industrial recognition of it as a separate economic entity, (2) its distinct customers and (3) its distinct prices. Contrary to the Commission’s assertion, the evidence is not convincing in the matters of peculiar characteristics and use. However, the former elements disclosed by the record are sufficient to support the Commission’s determination that the florist foil market may be legitimately"
},
{
"docid": "23341009",
"title": "",
"text": "at 1521. The emphasis of antitrust theory is thus upon protecting interbrand competition. Nonetheless, it is also true that a well-defined submarket may constitute a relevant product market and so under certain circumstances a relevant product market could consist of one brand of a product, placing intrabrand competition at issue. In Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 1523, 8 L.Ed.2d 510 (1962), the Supreme Court, in addressing a merger in violation of section 7 of the Clayton Act, sought to determine the product market and stated: [W]ithin [a] broad market, well-defined submarkets may exist which, in themselves, constitute product markets for antitrust purposes. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submark-et as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. Brown Shoe, 370 U.S. at 325, 82 S.Ct. at 1523 (citation and footnote omitted). Special characteristics of the relevant industry may influence market definition. Columbia Metal Culvert Co. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20, 28 (3d Cir.), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978). Therefore, in considering the highly factual issue of whether there is a cross-elasticity of demand between Ford tractors and other tractors, we have examined prior cases in which relevant product markets have been defined. In United States v. E.I. Du Pont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956), the Supreme Court decided that the relevant market for cellophane was broader than cellophane only, and consisted of other interchangeable flexible packaging goods. The Court found that the cellophane market was not distinct from the market for flexible packaging materials and that at all times du Pont competed with the manufacturers of these other flexible packaging goods. Consequently, the relevant product market was not limited to cellophane alone, but encompassed other interchangeable flexible packaging goods. More to the point, in Mogul v. General Motors Corp., the"
},
{
"docid": "8550717",
"title": "",
"text": "may exist which, in themselves, constitute product markets for antitrust purposes. United States v. E. I. duPont de Nemours & Co., 353 U.S. 586, 593-595. The boundaries of such a submarket may be determined by examining such practical indicia as industry or public recognition of the submarket as a separate economic entity, the product’s peculiar characteristics and uses, unique production facilities, distinct customers, distinct prices, sensitivity to price changes, and specialized vendors. * * * ” In this case the broad outer boundaries are “curtain wall” where all types of building materials compete. Within that outer market “metal curtain wall” and “aluminum curtain wall” are meaningful product markets or “lines of commerce”. The industry recognizes “metal curtain wall” as distinct and different from precast or any other type of curtain wall. The customers are the building owners as they are guided by the architects and contractors. When an aluminum curtain wall is called for, the vendors of precast concrete, brick or stone are not called in to make a sub-bid. Only those vendors of aluminum. If some other metal is an alternate, then vendors of that metal are called into make a sub-bid. There are specialized vendors of metal curtain wall, who deal in both steel and aluminum or in steel, bronzq and aluminum. But except for one vendor, Kaw-neer, who also owns a concrete company which is operated as a separate unit, metal vendors do not deal in concrete and concrete vendors do not deal in metal. Production facilities for aluminum curtain wall are unique and specialized. The extrusion presses and the hard-coat finish with color such as Duranodic or Kalcolor require special and distinct facilities to produce. The Court pointed out in U. S. v. E. I. Du Pont & Co., 353 U.S. 586, 1. c. 593, 77 S.Ct. 872, 1 L.Ed.2d 1057, that “automotive finishes and fabrics” have sufficient peculiar characteristics and uses to constitute a “line of commerce” separate and distinct from.all other finishes and fabrics. So do metal curtain walls and aluminum curtain walls. What we are really determining are the “trade realities”, U. S."
}
]
|
20162 | stoppage of production on October 20th, and the recall of employees without discrimination “in the event” of the resumption of operations does not indicate that the union nor the workers were deceived. Moreover, the union was doubtless aware of the fact, to which the Board does not allude, that the company, having committed no unfair labor practice, had the undoubted right to decide unilaterally and without consultation with the union to close its plant for economic reasons and to endeavor to save some of its investment. See Martel Mills Corp. v. N. L. R. B., 4 Cir., 114 F.2d 624; N. L. R. B. v. Asheville Hosiery Co., 4 Cir., 108 F.2d 288; REDACTED 152 A.L.R. 149, note; Tarr v. Amalgamated Ass’n of St. Electric Ry. & Motor Coach Employees, Indaho, 73 Idaho 223, 250 P.2d 904. The Board’s order is set aside and enforcement thereof is denied. . To give effect to its order the Board directed the company to offer employment to all the employees at North Dighton who were discharged when the plant closed on October 20th, including the strikers, by reinstating them to their former positions at North Dighton, if it should be reopened, or at the North Carolina plant, reimbursing them in such event for necessary moving expenses, and dismissing, if necessary to provide employment for these workers, all employees at the Butner plant; and also to pay the said employees | [
{
"docid": "11432073",
"title": "",
"text": "BIGGS, Circuit Judge. The National Labor Relations Board has found that the petitioners dominated and interfered with the formation and administration of two labor organizations, viz., Independent Protective Association of Employees of the Union Drawn Steel Plants No. 1 and No. 3, and Employees of Union Drawn Steel Company Plants No. 1 and No. 3;. discouraged membership in other labor organizations, viz., Amalgamated Association of Iron, Steel and Tin Workers of North America and Steel Workers Organizing Committee; and also discriminated in regard to the hire and tenure of two employees, Thomas Eurick and Wilfred Thomas, thereby discouraging membership in the two labor organizations last named. The Board entered an order requiring the petitioners to cease and desist from dominating or interfering with the administration of Independent Protective Association and Employees of Union Drawn Steel Company; from discouraging membership in the Amalgamated Association or in the Steel Workers Organizing Committee or in any other labor organizations by discriminating in regard to hire and tenure of employment or in any manner coercing their employees or interfering with their rights of self-organization. The Board’s order also requires the respondents to withdraw all recognition from Independent Protective Association and Employees of Union Drawn Steel, to reinstate Eurick and Thomas without loss of seniority or other rights, to make them whole as to back pay, and to post the usual notices signifying their compliance with the order. The primary question presented for our determination is whether or not the findings of the Board find support in the record and are not arbitrary or capricious. If supported by substantial evidence, they are conclusive. 49 Stat. 455, Section 10(e), 29 U.S.C.A. § 160(e) ; National Labor Relations Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 299, 300, 59 S. Ct. 501, 83 L.Ed. 660; National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U.S. 240, 262, 59 S.Ct. 490, 83 L.Ed. 627, 123 A.L.R. 599; Washington, Virginia & Maryland Coach Co. v. National Labor Relations Board, 301 U.S. 142, 147, 57 S.Ct. 648, 81 L.Ed. 965; National Labor Relations Board v. Griswold Manufacturing Company,"
}
]
| [
{
"docid": "12165834",
"title": "",
"text": "impertinent, the Supreme Court of the United States has used the following language: “-* * * We have said that ‘this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.’ We have said that the power to command affirmative action is remedial, not punitive. * * # “In that view, it is not enough to justify the Board’s requirements to say that they would have the effect of deterring persons from violating the Act. That argument proves too much, for if such a deterrent effect is sufficient to sustain an order of the Board, it would be free to set up any system of penalties which it would deem adequate to that end.” Next, as an additional “remedy,” the Board has ordered the Company to furnish the Union, at the Union’s request made within one year, a list of the names and addresses of all employees in its plants in North Carolina and South Carolina. This directive, in my view, could have but one principal objective, that is, to assist the Union in its organizing campaign to unionize the employees. Such is not an authorized function of the Board within the policy and intendment of the Act. In theory, at least, the Board acts in an impartial capacity, although it is charged with the duty to protect the rights of eligible employees to join a union if they so desire and to freely choose a bargaining representative without hindrance or interference. My brothers order enforcement of this directive only with respect to lists of employees working at the' three plants involved in Stevens IV. I am not persuaded that the Board has authority to order the Company to furnish such lists except, perhaps, as in N. L. R. B. v. Hanes Hosiery, 384 F.2d 188 (4 Cir. 1967), where this court"
},
{
"docid": "17611191",
"title": "",
"text": "with discharge, or that he was, in fact, discharged, because of his union membership or activity. In respect to Meyers and Robbins, the Trial Examiner and the Board concluded that once it was determined York’s discharge was discriminatory, those striking in protest thereof were unfair labor practice strikers and entitled, upon their request, to reinstatement in their former or similar positions. The strike in which Meyers and Robbins participated commenced on September 10, 1958, picketing ended on October 1,1958, and on that day several union leaders returned to and were reinstated in their former jobs. By October 15 twenty-one employees were back at work, and between October 15 and October 24 all available jobs had been filled either by returning strikers or with permanent replacements. It was not until after this time that Meyers and Robbins requested reinstatement but they were refused on the ground that all jobs had been filled. While it is unquestioned that employees striking in protest of the unfair discharge of one of their number are engaged in a protected activity and, as unfair labor practice strikers, are entitled to reinstatement in their former or similar positions, N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., 2 Cir., 1942, 130 F.2d 503, if it be determined that the object of their protest was not in fact an unfair labor practice, reinstatement does not follow as a matter of absolute right. In a similar situation, the Court of Appeals for the Ninth Circuit held: “Had the strikers been correct in their assumption that Patton was discharged for union activities, the strike would have been an unfair labor practice strike. In that event the respondents [employers] could neither discharge nor replace them. * * * But since Patton was discharged for good cause the strike should be classed as an economic strike. As economic strikers the men who had walked out could have been replaced. See N. L. R. B. v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 345-346, 58 S.Ct. 904, 82 L.Ed. 1381. * * * ” N. L. R. B. v."
},
{
"docid": "20067714",
"title": "",
"text": "L.Ed.2d 401 (1958), quoting N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348, 58 S.Ct. 904, 912, 82 L.Ed. 1381 (1938). See also, Local 60, United Brotherhood of Carpenters & Joiners of America, AFL-CIO v. N. L. R. B., 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961). Many of the cases in which the Board has awarded employees back-pay in a partial closing context are cases in which the employees were laid off and given no other employment opportunities by their former employer. See, e. g., P. B. Mutrie Transportation, Inc., 226 NLRB 1325 (1976); Thompson Transport Co., Inc., 184 NLRB 38 (1970); or when the laid off employees were found to have been discriminated against. Purolator Products, Inc., 160 NLRB 80 (1966). The record in this ease discloses that all 29 of these workers were offered transfers to Owings Mills. For reasons of their own, they declined the transfers. After declining, they were put on a preferential hiring list at Potee Street. Furthermore, the Board specifically rejected the AU’s conclusion that these 29 employees had been unlawfully discriminated against. Given these facts, we believe a back-pay award is inappropriate in this case. We fully recognize that Universal violated the Act by its failure to bargain over the effects of its closure decision and by offering these transfers unilaterally. However, placing these 29 employees on a preferential hiring list is all that is needed to vindicate the policies of the Act. A back-pay award, in our judgment, is not “adapted to the situation which calls for redress.” We therefore decline to enforce this portion of the Board’s order. VI. CONCLUSION For the reasons stated, therefore, we enforce the Board’s order except for those portions which require Universal to bargain with the union over its decision to close the Hollins Ferry Road plant and which would require the company to make a back-pay award to the 29 employees laid off after refusing transfers. . The ALJ on page 4 of his decision wrote: The ceilings were too high. Temperature and humidity could not be"
},
{
"docid": "1428872",
"title": "",
"text": "activity. Cf. N. L. R. B. v. Reynolds International Pen Co., 7 Cir., 1947, 162 F.2d 680. Section 2(3) of the Act defines “employee” to include “any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice * * Section 2(3) states, in effect, that the employer cannot deprive striking employees of their employee status under the Act so long as the strikers are engaged in protected activity. But the employer retains his right to discharge employees because they are engaged in unprotected activity. It does not follow, however, that employees automatically lose their employee status once they engage in unprotected activity. See Stewart Die Casting Corp. v. N. L. R. B., 7 Cir., 1940, 114 F.2d 849, 855-856, certiorari denied 312 U.S. 680, 61 S.Ct. 449, 85 L.Ed. 1119. They subject themselves to the “risk of the termination of their employment,” N. L. R. B. v. Fansteel Corp., 1939, 306 U.S. 240, 256, 59 S.Ct. 490, 496, 83 L.Ed. 627, but the employer must affirmatively exercise his option to terminate the relationship, either by discharging the strikers or refusing reinstatement. We think it is clear that respondents waived their right to discharge the fourteen employees who worked several hours on July 5. See N. L. R. B. v. E. A. Laboratories, 2 Cir., 1951, 188 F.2d 885, 886-887, certiorari denied 342 U.S. 870, 871, 72 S.Ct. 110. Moreover, the record reveals that respondents continued to look upon all the strikers as employees. The form letters of resignation from the union, prepared by Trosty, respondents’ attorney, were drafted in such a way that each striker signed the letter as “employee of Spring Mills Apparel, Inc.” The failure to reopen the plant on July 6 was an equivocal act; one of several reasons could have motivated it. The Board found that respondents refused to reopen the plant — not because of the unprotected strike — but because of respondents’ hostility toward the union. This finding is supported by substantial evidence on the whole record. We think the"
},
{
"docid": "10736525",
"title": "",
"text": "not, it is also an unfair labor practice which may be remedied by reinstatement with back pay under § 10 (c) even though the Board’s order mandates the very compensation reserved by the contract.” 393 U.S. at 362, 89 S.Ct. at 545. See also Lodge 743, IAM v. United Aircraft Corp., 337 F.2d 5 (1964), cert. denied, 380 U.S. 908, 85 S.Ct. 893, 13 L.Ed.2d 797 (1965). We also note that if the Board had declined to entertain these claims, arbitrators deciding individual eases may never have found the general pattern of anti-union activity which is now revealed to us. While in appropriate cases the district court can order the union to arbitrate a claim of unlawful discharge despite the fact that an unfair labor practice charge is pending, United Aircraft Corp. v. Canel Lodge No. 700, IAM, 436 F.2d 1 (2d Cir. 1970), the jurisdiction of the Board and the arbitrator is concurrent, and the arbitration clause does not oust the Board of jurisdiction. Second, United Aircraft contends that the Board’s order is overly broad, because it requires posting of identical notices at all of the company’s six Connecticut plants. The argument is without merit. Unfair labor practices were found at five of these six plants, all are located in a limited and compact area, and the many unfair labor practices follow a general pattern of anti-union hostility and discriminatory conduct. Accordingly, United Aircraft’s attempt to distinguish J. P. Stevens & Co. v. N. L. R. B., 380 F.2d 292 (2d Cir. 1967), where we approved an order that the company post notices in all 43 of its North and South Carolina plants when violations occurred at only 20 plants, must fail. For the same reasons, we find nothing objectionable with the provision of the Board’s order broadly proscribing interference, coercion, and restraint of the workers’ section 7 rights. Petitions for review denied and Board’s orders enforced. . “United Aircraft” as used herein refers to the four Connecticut plants of the Pratt & Whitney Division — East Hartford, Manchester, Southington, and Middletown — and the two Connecticut plants of"
},
{
"docid": "819456",
"title": "",
"text": "PER CURIAM. The National Labor Relations Board (Board) determined that Clinton Packing (Company) committed unfair labor practices in violation of §§ 8(a)(1), 8 (a)(3), and 8(a)(5) of the National Labor Relations Act. (29 U.S.C. §§ 158(a)(1), 158(a)(3), and 158(a)(5).) The Board issued an order requiring the Company to cease and desist from the unfair labor practices found, to reinstate and make whole two discharged employees, and to bargain collectively with the Amalgamated Meatcutters & Butcher Workmen of North America, Local Union No. 576 (Union), upon request. We grant enforcement of the Board’s order in part and deny enforcement in part. Twice prior to the instant ease the Board found the Company to be in violation of the Act. In Clinton I, the Board found that Clarence Turner, the Company’s vice president and plant manager, had among other things threatened plant closure if the Union won the election, in violation of 8(a) (1), and laid off eight employees in violation of 8(a) (3) and (1). This Court summarily enforced the Board’s order in that case. (No. 20341, June 26, 1970.) And in Clinton II, pending before the Board at the time the instant charges were filed, the Board found that the Company had violated 8(a) (5) by unilaterally granting wage increases and laying off employees without first consulting the Union. The Company voluntarily complied with the Board’s order in Clinton II. It is in the light of this history of unfair labor practices that the Board accepted the trial examiner’s findings that the Company had again violated the Act. Evidence of prior unfair labor practices is relevant in determining the Company’s motivation in its subsequent conduct. J. P. Stevens & Co. v. N. L. R. B., 406 F.2d 1017, 1019 (4th Cir. 1968); Maphis Chapman Corp. v. N. L. R. B., 368 F.2d 298, 303-304 (4th Cir. 1966). This is particularly true here where all the activities complained of in Clinton I, II, and the instant case, occurred within approximately a one-year period. Discharges During contract negotiations following the Union’s certification, Turner complained about what he felt was a union-inspired slowdown."
},
{
"docid": "6142393",
"title": "",
"text": "an appropriate bargaining unit. See N. L. R. B. v. Williams, 4 Cir., 195 F.2d 669, 671, cert. den., 344 U.S. 834, 73 S.Ct. 42, 97 L.Ed. 649. The Board has found that the company in this case, in addition to its failure to bargain with the union, has committed other acts designed to restrain, coerce and interfere with its employees in the exercise of their rights in violation of § 8(a) (1) of the Act. On this account the Board has ordered the employer to cease and desist from such actions in the future. There is substantial testimony to the effect that the Vice President of the company photographed the strikers as they stood in the picket line, that a new employee by the name of Knotts was told that Matthews had been discharged because he belonged to the union, and that the union officials were racketeers and embezzlers of union funds, and that the new employee would be given a truck driver’s job if the union movement failed, and that he should vote against the union in case an election was held. Another employee, Bohan, who had been absent during the week preceding the strike because of an injury and had not joined the union, was told, in effect, that the workers would be out of a job if the union came in. These facts found by the Board, coupled with those relating to the discharge of Matthews, justify the finding that the workers had been interfered with in the exercise of their rights and the inclusion of a prohibition in the cease and desist order. See N. L. R. B. v. Dixie Shirt Co., 4 Cir., 176 F.2d 969, 973; N. L. R. B. v. Norfolk Southern Bus Corp., 4 Cir., 159 F.2d 516, 518. Included in the Board’s order for affirmative remedial action on the part of the company is the requirement that it offer to its eight laborers and three truck drivers reinstatement to their former or substantially equivalent positions and also make them whole for any losses caused by the company’s refusal, if any,"
},
{
"docid": "1485048",
"title": "",
"text": "frustrate an agreement on that issue coincides with a willingness to reach some overall agreement.” (footnotes omitted) United Steelworkers of America v. N. L. R. B., 129 U.S.App.D.C. 80, 390 F.2d 846, 849 (1967), cert. denied, Roanoke Iron & Bridge Works, Inc. v. N. L. R. B., 391 U.S. 904, 88 S.Ct. 1654, 20 L.Ed.2d 419 (1968). From the totality of the employer’s conduct exhibited in the circumstances of the instant case, the inference of bad faith drawn by the Board is not only proper but compelling. The union, on numerous occasions, stated that the checkoff provision was an essential item for inclusion in the collective bargaining agreement but that the union was flexible and if the company would make some concessions, particularly in the realm of economic items, that an agreement could be reached. No company concessions were forthcoming. We are likewise of the view that the company’s predictably unacceptable economic proposal, its disparate treatment of the union employees at the McAllen plant and the unrepresented employees at the Laredo and San Antonio plants— with regard to wages and vacation benefits — and bringing this disparity to the attention of the union members via the 8(a) (1) violations previously noted, lend further support to the Board’s con-elusion that the company was predetermined not to reach agreement. On February 11, 1968, the union employees walked out on strike— having previously voted to take that action in protest of the company’s unlawful discharge of employee Garcia and the refusal of the company to bargain in good faith. From our foregoing conclusions, it cannot be gainsaid that this constituted an unfair labor practice strike and as such, the strikers were entitled to full reinstatement upon their unconditional offer to return to work. N. L. R. B. v. Safway Steel Scaffolds Co. of Georgia, 383 F.2d 273 (5th Cir. 1967), cert. denied, 390 U.S. 955, 88 S.Ct. 1052, 19 L.Ed.2d 1150 (1968). Finally, the company objects to that part of the Board’s order which prohibits it from “(b) Discouraging membership in or activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of"
},
{
"docid": "15235901",
"title": "",
"text": "we will not enforce this remedy for the alleged violation of § 8(a) (5). III. The Board determined that the Company violated § 8(a) (1) by threatening workers upon their return to the plant after a one hour work stoppage on November 12, 1969, in which employees protested the Company’s refusal to recognize and bargain with the Union. The record shows that these employees had engaged in concerted activities in this instance without employing any unlawful means. Contrary to contentions of the Company, the record does not show this work stoppage to have been unlawful as partial, intermittent, or recurrent. This work stoppage was thus protected by § 7 (29 U.S.C. § 157) of the Act. Accordingly, we sustain the Board’s determination that the employer’s' threats following the November 12 work stoppage constituted an unfair labor practice which tended to coerce and interfere with the right of its employees to engage in protected activities for the purpose of collective bargaining. See First National Bank of Omaha v. NLRB, 413 F.2d 921, 923-924 (8th Cir. 1969); NLRB v. Plastilite Corp., 375 F.2d 343, 347, 349-350 (8th Cir. 1967). IV. Finally, we need to review the status of the sixteen employees who were not reinstated by the Company following a three day strike by some forty employees in January of 1970. The Board determined that these individuals were unfair labor practice strikers, and, by unconditionally requesting reinstatement, were entitled to be restored to their pre-strike positions with the Company. Since we have held that the Union was not validly elected as the employees’ bargaining representative, we must characterize these sixteen employees as economic strikers. As economic strikers, they were not entitled to reinstatement if their former positions and all equivalent positions had been filled by permanent replacements. NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333, 345-356, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). Upon application, however, they were entitled to reinstatement as positions for which they were qualified became available, the burden being on the employer to show that its refusal to reinstate rested upon “legitimate and substantial business justifications.”"
},
{
"docid": "7012126",
"title": "",
"text": "252.] Respondent contends that it had reasonable grounds to doubt the Union’s claim to represent a majority of the employees. As proof, respondent points to the fact that all of its production employees filed a petition for decertification, signed by each employee, stating: “We the undersigned do not wish to be represented by UAW-CIO.” This petition was filed February 2, 1959. But during the week of May 20, 1957, when the plant was reopened, a clear majority of the employees were represented by the Union. This was known to the employer, for the production and maintenance employees were all members of the Union and had voluntarily authorized respondent to check-off union dues from their wages. Goodman, as Ventshade’s secretary-treasurer, had remitted checked-off dues to the Union, including dues for April and May 1957. Accordingly, when respondent refused to honor the certification, it knew that its employees, all but one of whom had been in Ventshade’s employ when Ventshade ceased production on May 3, 1957, were members in good standing of the Union. In a case concerning a successor employer, principles of fair play require that we look to the time of the succession to determine if the Union represents a majority of the employees. The employer is not without remedy. The employer’s proper course is to recognize the prima facie union representation of the employees and to continue to deal with the union, but to petition the Board for a new election. After the Board hearing but before the issuance of the Board’s order the respondent and its employees filed representation petitions with the Board. These petitions collide with the Board’s policy of not conducting representation elections during the pendency of unfair labor practice charges. This Court has approved the Board’s policy. N. L. R. B. v. Taormina, 5 Cir., 1953, 207 F.2d 251; N. L. R. B. v. Sanson Hosiery Mills, 5 Cir., 1952, 195 F.2d 350, certiorari denied, 344 U.S. 863, 73 S.Ct. 103, 97 L.Ed. 669; N. L. R. B. v. Houston & North Texas Motor Freight Lines, 5 Cir., 1951, 193 F.2d 394. The policies, operations,"
},
{
"docid": "20067701",
"title": "",
"text": "remedy ordered by the Board, we need not make a detailed analysis of the Board’s judgment on the closing decision. Furthermore, we are convinced that establishing a rule for this judicial circuit would be of minimal value anyway since the Supreme Court has recently decided to review this issue. N. L. R. B. v. First National Maintenance Corp., 627 F.2d 596 (2d Cir. 1980), cert. granted,-U.S.-, 101 S.Ct. 854, 66 L.Ed.2d 798 (1981). Enforcement of this portion of the order is, therefore, denied. B. Closing Effects. Although there may be conflicting opinions as to whether an employer has a duty to bargain over a partial closing decision, it is clear that an employer must bargain with the union over the effects of that decision on the bargaining unit members. N. L. R. B. v. North Carolina Coastal Motor Lines, Inc., 542 F.2d 637, 638 (4th Cir. 1976). See also, N. L. R. B. v. Triumph Curing Center, 571 F.2d 462, 474 n.11 (9th Cir. 1978); Royal Typewriter Co. v. N. L. R. B., 533 F.2d 1030, 1039 (8th Cir. 1976); International Ladies Garment Workers’ Union, AFL-CIO v. N. L. R. B., 463 F.2d 907, 917 (D.C.Cir.1972). Universal does not question its duty to bargain over the effects of its decision, but challenges the Board’s conclusion that it did not bargain in good faith over the effects. The company points to its February 3, 1978 letter to the union inviting it to “discuss all aspects” of the closing, “including, but not limited to, the impact that such a closing would have upon employees at the plant.” In that letter to the union it said it intended to offer employment to as many Hollins Ferry Road employees as possible at the new plant. Several meetings between Universal officials and union representatives were held in February, at which meetings the principal bone of contention was the union’s request that the company recognize the union voluntarily as the exclusive bargaining representative of the production and maintenance workers at the Owings Mills plant — a request the company consistently denied. Other specific problems were discussed,"
},
{
"docid": "22909315",
"title": "",
"text": "the Act (29 U.S.C. § 158(e)). See International Union, United Auto, Aerospace, etc., Workers of America, etc. v. N. L. R. B. (Preston Products Co.), 129 U.S.App.D.C. 196, 201, 392 F.2d 801, 806 (1967), cert. den., Preston Products Co. v. N. L. R. B., 392 U.S. 906, 88 S.Ct. 2058, 20 L.Ed.2d 1364 (1968). Specifically, it was not unreasonable for the Board to conclude that the plain meaning of the Company’s words — particularly in the context of its bluntly expressed hostility to unions — was that, if the employees chose to exercise their right of organization the Company could and would retaliate by discontinuing its practice of soliciting marginal contracts to avoid loss of work and by closing the plant. It is established law that “an employer’s ‘prediction’ of untoward economic events may constitute an illegal threat if he has it within his power to make the prediction come true.” International Union of Electrical, etc., Workers v. N. L. R. B. (NECO Electrical Products Corp.), 110 U.S.App.D.C. 91, 97, 289 F.2d 757, 763 (1960). See also I. U. A. v. N. L. R. B. (Preston Products Co.), 129 U.S.App.D.C. 196, 392 F.2d 801 (1967), cert. den., 392 U.S. 906, 88 S.Ct. 2058 (1968); N. L. R. B. v. River Togs, Inc., 382 F.2d 198, 202 (2d Cir. 1967). “Conveyance of the employer’s belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.” N. L. R. B. v. Sinclair Co., 397 F.2d 157, 160 (1st Cir. 1968), quoted with approval and affirmed in N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-619, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Further, the employees were warned of the futility of joining the Union because the Union would only bring strikes and violence without benefit to them. Finally, Mr. Weinsten in his speech plainly solicited and urged the employees to repudiate the Union and provided the necessary information, together with form letters of resignation"
},
{
"docid": "5445931",
"title": "",
"text": "plant on November 1, 1948, both Nightingale and Niemann applied for and were refused re-employment, despite the fact that between November 1, 1948, and January 17, 1949, forty-eight new employees were hired. Considering this evidence, together with that which fairly detracts from its weight, we cannot say that the Board’s findings are unsupported by substantial evidence on the record considered as a whole. Finally it is urged that the Board erred in its conclusion that warehouse foreman Harrold’s warning to employee Pobjoy, that Stokely might close down the plant if the union got in, and Plant Manager Pickett’s interrogation of employee Herschell, as to whether he would join the union, constituted violations of section 8(a)(1). We are of opinion that at the time the conversation with Harrold took place Pobjoy was not a supervisor within the meaning of the Act. The evidence adduced does not indicate that during the .period in question Pobjoy had authority to hire or fire nor that he had the authority to responsibly direct other employees in the exercise of that independent judgment requisite to supervisory capacity. Ohio Power Co. v. N. L. R. B., 6 Cir., 176 F.2d 385, 11 A.L.R.2d 243. In the light of the discriminatory discharges already discussed, we think Harrold’s warning to Pobjoy and Pickett’s questioning of Herschell might properly be deemed coercive. N. L. R. B. v. Alco Feed Mills, 5 Cir., 133 F.2d 419, 421; N. L. R. B. v. Chautauqua Hardware Corp., 2 Cir., 192 F.2d 492. The petition to set aside the Board’s order is denied. The Board’s petition to enforce its order is granted. Enforced. . The original charge, filed on December 15, 1948, and the amended charge, filed January 4, 1949, were identical save for the addition of one named employee in the amended charge. The second amended charge, filed October 14, 1949, omitted the names of three employees and changed the dates of the alleged discrimination. . 61 Stat. 136, 29 U.S.C.A. § 151 et seq. . The pertinent portion of Section 10(b) reads as follows: “Whenever it is charged that any person has"
},
{
"docid": "1428873",
"title": "",
"text": "but the employer must affirmatively exercise his option to terminate the relationship, either by discharging the strikers or refusing reinstatement. We think it is clear that respondents waived their right to discharge the fourteen employees who worked several hours on July 5. See N. L. R. B. v. E. A. Laboratories, 2 Cir., 1951, 188 F.2d 885, 886-887, certiorari denied 342 U.S. 870, 871, 72 S.Ct. 110. Moreover, the record reveals that respondents continued to look upon all the strikers as employees. The form letters of resignation from the union, prepared by Trosty, respondents’ attorney, were drafted in such a way that each striker signed the letter as “employee of Spring Mills Apparel, Inc.” The failure to reopen the plant on July 6 was an equivocal act; one of several reasons could have motivated it. The Board found that respondents refused to reopen the plant — not because of the unprotected strike — but because of respondents’ hostility toward the union. This finding is supported by substantial evidence on the whole record. We think the Board was correct in its statement that even though unprotected activity gives the employer the right to discharge for such conduct, it does not confer upon him the right to discharge an employee for an entirely different reason. If the employer in fact discharges an employée for discriminatory reasons, he violates Section 8(a) (3) of the Act. The mere fact that the strikers may harve engaged in an unprotected strike should not deprive them of the right of reinstatement. Where strikers have engaged in a sit-down strike or have committed serious acts of violence, it has been held that the policies of the Act will not be effectuated by ordering reinstatement of the wrongdoers. N. L. R. B. v. Fansteel Corp., supra, 306 U.S., at pages 257-258, 59 S.Ct. 490; Republic Steel Corp. v. N. L. R. B., 3 Cir., 1939, 107 F.2d 472, 479-480. More recently, the Board has ruled that reinstatement will not be ordered where employees have engaged in a strike unlawful under the Act. Mackay Radio & Telegraph Co., Inc., 96"
},
{
"docid": "23631116",
"title": "",
"text": "pay and the furnishing of pertinent records should of be enforced; (3) that enforcement the order of reinstatement of William F. Bell should be denied; (4) that it is appropriate to require the posting of a notice (at the Company plant) consistent with the views herein expressed. Enforcement granted in part and denied in part. . 132 N.L.R.B. No. 30. The Board ordered the Company to cease and desist from: (a) Discouraging membership in and activities on behalf of Textile Workers Union of America, AFL-CIO, or any other labor organization, by discrimina-torily discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment; (b) Subjecting any discriminatorily discharged employee, or any other employee, to excessive watching of their legitimate activities during their working hours, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act; (c) Interrogating employees concerning any personal notetaking in any manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. . N. L. R. B. v. Threads, Inc., 4 Cir., 289 F.2d 483. . See Amalgamated Utility Workers v. Consolidated Edison Co., 809 U.S. 281, 269, 61 S.Ct. 561, 84 L.Ed. 738 (1940); National Licorice Co. v. N. L. R. B., 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799 (1940); Agwilines, Inc. v. N. L. R. B., 87 F.2d 146, 150 (5th Cir. 1936); N. L. R. B. v. General Motors Corp., 116 F.2d 306, 312 (7th Cir. 1940); N. L. R. B. v. Prettyman, 117 E.2cl 786, 792 (6th Cir. 1941); N. L. R. B. v. Newark Morning Ledger Co., 120 F.2d 262, 267, 137 A.L.R. 849 (3d Cir. 1941). . “(c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or"
},
{
"docid": "22763395",
"title": "",
"text": "the Board made its order directing respondent to desist from interfering with its employees in the exercise of their right to self-organization and to bargain collectively through representatives of their own choosing as guaranteed in § 7 of the Act; from dominating or interfering with the formation or administration of the Rare Metal Workers of America, Local No. 1, or any other labor organization of its employees or contributing support thereto; and from refusing to bargain collectively with the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 66, as the exclusive representative of the employees described. The Board also ordered the following affirmative action which it was found would “effectuate the policies” of the Act; — that is, upon request, to bargain collectively with the Arqal- gamated Association as stated above; to offer, upon application, to the employees who went on strike on February 17, 1937, and thereafter, “immediate and full reinstatement to their former positions,” with back pay, dismissing, if necessary, all persons hired since that date; to withdraw all recognition from Rare Metal Workers of America, Local No. 1, as a representative of the employees for the purpose of dealing with respondent as to labor questions, and to “completely disestablish” that organization as such representative; and to post notices of compliance. 5 N. L. R. B. 930. The Board found that respondent had not engaged in unfair labor practices by “discrimination in regard to hire or tenure of employment” in order to “encourage or discourage membership in any labor organization,” and accordingly the complaint under § 8 (3) of the Act was dismissed. Id. On respondent’s petition, the Circuit Court of Appeals set aside the Board’s order, 98 F. 2d 375, and this Court granted certiorari, 305 U. S. 590. First. The unfair labor practices. — The Board concluded that by “the anti-union statements and actions” of the superintendent on September 10, 1936, and September 21, 1936, by “the campaign to introduce into the plant a company union,” by “the isolation of the Union president from contact with his fellow employees,” and by the"
},
{
"docid": "22731176",
"title": "",
"text": "A. F. L., governing wages, hours and working conditions. The agreement provided for the arbitration of disputes and contained a clause outlawing strikes. During the life of this agreement, the Wholesale and Warehouse Workers Union commenced the solicitation of members among petitioners’ employees, and in September 1950 requested the National Labor Relations Board to certify them as exclusive bargaining representative. In an effort to keep the Warehouse Workers out of their plant, the petitioners enlisted the aid of a third union, the Pulp and Mill Workers. This latter organization had bested the Wholesale and Warehouse Workers elsewhere in organizational wars. Petitioners proselytized among their employees on behalf of the Pulp and Mill Workers, which in late October, having gained sufficient adherents, intervened in the representation proceeding initiated before the Board by the Warehouse Workers. Meanwhile the Carpenters had written petitioners on October 10, stating that they wished to negotiate a new contract to take effect upon the expiration of the current agreement. The letter made specific demands, and bargaining over them followed. When the petitioners’ organizational activities became manifest, the Carpenters lodged unfair-labor-practice charges with the Board. Some members of the incumbent union tried to counteract the influence of the petitioners upon the employees. Frank Ciccone, a machinist, was one who was active in urging employees to remain loyal to the Carpenters. On November 10 Ciccone was discharged because of this. The discharge, in conjunction with the antecedent employer unfair labor practices, precipitated a plant-wide strike accompanied by peaceful picketing. The strike continued until early February when the participants requested reinstatement. The request was rejected by the petitioners which had earlier notified the strikers of their discharge. The proceedings that followed before the Board resulted in findings against the employers of unfair labor practices under § 8 (a)(1), (2) and (3). The Board entered a cease and desist order, and affirmatively directed petitioners to reinstate the discharged strikers with back pay. 103 N. L. R. B. 511. Chairman Herzog and Member Mur-dock dissented from the latter portion of the Board’s order. The Court of Appeals for the Second Circuit (Swan,"
},
{
"docid": "21178869",
"title": "",
"text": "that the Board herein was not free to completely ignore the question of intent and declare an act as an unfair labor practice without first finding some illegal motivation or intent or discriminatory result that naturally followed therefrom. Recent cases applying that principle include N. L. R. B. v. Servette, Inc., 9 Cir., 1962, 313 F.2d 67, 70: “There is no argument but what a company in the position of Respondent here may change its business methods so long as its change in operation is not motivated by the illegal intention to avoid its obligations under the Act. N. L. R. B. v. Houston Chronicle Pub. Co., 211 F.2d 848, at 851 (5th Cir., 1954) citing Martel Mills Corp. v. N. L. R. B., 4 Cir., 114 F.2d 624; N. L. R. B. v. Union Pacific Stages, 9 Cir., 99 F.2d 153; N. L. R. B. v. Grace Co., 8 Cir., 184 F.2d 126.” In N. L. R. B. v. New England Web, Inc., 1 Cir., 1962, 309 F.2d 696, 700, the court, in holding that an employer has the right to close its plant without violating the provisions of the Act where the employer, in the exercise of legitimate and justified business judgment, concluded that such a step is either economically desirable or economically necessary, and in setting aside and refusing to enforce the Board’s order, stated 309 F.2d at page 700: “We start with the proposition that a businessman still retains the untrammeled prerogative to close his enterprise when in the exercise of a legitimate and justified business judgment he concludes that such a step is either economically desirable or economically necessary. This prerogative exists quite apart from whether or not there is a union on the scene. ‘A company may suspend its operations * * * so long as its change in operations is not motivated by the illegal intention to avoid its obligations under the National Labor Relations Act. A change in operations motivated by financial or economic reasons is not an unfair labor practice under the Act.’ N. L. R. B. v. Lassing, 284 F.2d"
},
{
"docid": "22743375",
"title": "",
"text": "War Labor Board (1919) 33 Harv. L. Rev. 39. Rather clearly the House Committee which reported the bill viewed the word “hire” as covering the situation before us. H. R. Rep. No. 1147, 74th Cong., 1st Sess., p. 19. The Chairman of the Senate Committee expressly stated dining the debate that “no employer may discriminate in hiring a man whether he belongs to a union or not, and without regard to what union he belongs [except where there is a valid' closed shop agreement].” 79 Cong. Rec. 7674. For further materials bearing on the legislative history see the able opinion of Judge Magruder in Labor Board v. Waumbec Mills, 114 F. 2d 226. An injunction had been granted against interference with the workers’ self-organization and reinstatement was ordered in contempt proceedings after employees had been discharged for union activities. Surely, a court of equity has no greater inherent authority in this regard than was conveyed to the Board by the broad grant of all such remedial powers as will, from case to case, translate into actuality the policies of the Act. In accordance with the Board’s general practice, deductions were' made in the present case for amounts earned during the period of the back pay award. But the deductions have been limited to earnings during the hours when the worker would have been employed by the employer in question. Matter of Pusey, Maynes & Breish Co., 1 N. L. R. B. 482; Matter of National Motor Bearing Co., 5 N. L. R. B. 409. And only “net earnings” are deducted, allowance being made for the expense of getting new employment which, but for the discrimination, would not have been necessary. Matter of Crossett Lumber Co., 8 N. L. B. 440. Even though a strike is caused'by an unfair labor practice the Board does not award back pay during the period of the strike. Matter of Sunshine Hosiery Mills, 1 N. L. R. B. 664. Employees who are i criminatorily discharged are treated as strikers if during a strike they refuse an unconditional offer of reinstatement. Matter of Harter Corp., 8"
},
{
"docid": "23207235",
"title": "",
"text": "WISDOM, Circuit Judge. This case is before the Court on petition of the National Labor Relations Board for enforcement of its order against the respondent, the Birmingham Publishing Company. The Board found that: (1) the respondent violated Section 8(a)(1) of the Labor-Management Relations Act by promoting a movement to decertify the Birmingham local union of the International Printing Pressmen and Assistants’ Union of North America, AFL-CIO as the bargaining representative of the Company’s pressroom employees; (2) the respondent violated Section 8(a)(3) and (1) by discharging employee Howard Edwards because of his union membership and union activity; and, (3) because of these unfair labor practices, the employees went on strike and occupy the status of “unfair labor practice strikers” entitled to reinstatement. The Board’s order directs the Company to cease and desist from the unfair labor practices found, and to reinstate employee Howard Edwards with back pay. The order directs that upon proper application the Company shall offer reinstatement to any of the strikers not already reinstated, the accrual period for back pay to begin on the fifth day after an individual’s application and to terminate on the date of the offer of reinstatement. We grant enforcement of the Board’s order in part. I. The Board’s story and the Company’s story of this case are distinguished by the completeness with which they disagree on all points, major and minor. Under the substantiality test, as stated in Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, the choice between two conflicting lines of testimony and two inconsistent inferences is primarily for the Board. We may displace the Board’s choice, but only where “no substantial evidence on the record considered as a whole to support [s] the inference drawn by board”. N. L. R. B. v. Coats & Clark, Inc., 5 Cir., 1956, 231 F.2d 567, 568. The Company’s plant is located in Birmingham, Alabama. It produces printed matter by the lithographic process and by the traditional letterpress method. In the spring of 1956 there were nine employees and two foremen in the pressroom,"
}
]
|
714963 | "16, 43 L.Ed.2d 514 (1975)); accord Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 403 & n. 21-22 (3d Cir.1987). Nor has the State’s highest court authoritatively construed the purpose of this statute, as was the case in Clover Leaf Creamery. . In numerous dormant Commerce Clause cases, the Supreme Court has observed that leg islation burdening only out-of-state interests not represented in the state legislature is ""not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state.” South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177, 184 n. 2, 58 S.Ct. 510, 513 n. 2, 82 L.Ed. 734 (1938); REDACTED See also Raymond Motor Transportation, Inc., 434 U.S. at 444 n. 18, 98 S.Ct. at 795 n. 18; Consolidated Freightways Corp., 450 U.S. at 675-76, 101 S.Ct. at 1318-19; J. Ely, Democracy and Distrust 83-84 (1980); L. Tribe, American Constitutional Law (2d ed.1988) § 6-5. By the same token, courts are far less likely to find a Commerce Clause violation where a statute visits some of its adverse effects upon instate interests represented in the legislature. See Clover Leaf Creamery Co., 449 U.S. at 472-73 & n. 17, 101 S.Ct. at 728-29 n. 17; Consolidated Freightways Corp., 450 U.S. at 675, 101 S.Ct. at 1318; Cresenzi Bird Importers, Inc. v." | [
{
"docid": "22318880",
"title": "",
"text": "with interstate commerce (303 U. S. at 187-188 and cases cited). The contrast between the present regulation and the full train crew laws in point of their effects on the commerce, and the like contrast with the highway safety regulations, in point of the nature of the subject of regulation and the state’s interest in it, illustrate and emphasize the considerations which enter into a determination of the relative weights of state and national interests where state regulation affecting interstate commerce is attempted. Here examination of all the relevant factors makes it plain that the state interest is outweighed by the interest of the nation in an adequate, economical and efficient railway transportation service, which must prevail. Reversed. Me. Justice Rutledge concurs in the result. See Senate Report No. 416, 75th Cong., 1st Sess.; 81 Cong. Rec. 7596; and Hearings before House Committee on Interstate and Foreign Commerce, 75th Cong., 3d Sess., S. 69, Train Lengths. In applying this rule the Court has often recognized that to the extent that the burden of state regulation falls on interests outside the state, it is unlikely to be alleviated by the operation of those political restraints normally exerted when interests within the state are affected. Cooley v. Board of Wardens, supra, 315; Gilman v. Philadelphia, 3 Wall. 713, 731; Escanaba Co. v. Chicago, 107 U. S. 678, 683; Robbins v. Shelby County Taxing Dist., 120 U. S. 489, 499; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 294; South Carolina Highway Dept. v. Barnwell Bros, supra, 185, n.; McGoldrick v. Berwind-White Co., 309 U. S. 33, 46, n.; cf. McCulloch v. Maryland, 4 Wheat. 316, 428; Pound v. Turck, 95 U. S. 459, 464; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 205; Helvering v. Gerhardt, 304 U. S. 405, 412. One hundred sixty-four bills limiting train lengths have been introduced in state legislatures since 1920, of which only three were passed, in Nevada, Louisiana and Oklahoma. The Nevada and Louisiana laws were held unconstitutional and never enforced. Southern Pacific Co. v. Mashburn, 18 F. Supp."
}
]
| [
{
"docid": "22096868",
"title": "",
"text": "economic interests. Rather, the garbage sorting monopoly is achieved at the expense of all competitors, be they local or nonlocal. That the ordinance does not discriminate on the basis of geographic origin is vividly illustrated by the identity of the plaintiffs in this very action: Petitioners are local recyelers, physically located in Clarkstown, that desire to process waste themselves, and thus bypass the town’s designated transfer facility. Because in-town processors — like petitioners — and out-of-town processors are treated equally, I cannot agree that Local Law 9 “discriminates” against interstate commerce. Rather, Local Law 9 “discriminates” evenhandedly against all potential participants in the waste processing business, while benefiting only the chosen operator of the transfer facility. I believe this distinction has more doctrinal significance than the majority acknowledges. In considering state health and safety regulations such as Local Law 9, we have consistently recognized that the fact that interests within the regulating jurisdiction are equally affected by the challenged enactment counsels against a finding of discrimination. And for good reason. The existence of substantial in-state interests harmed by a regulation is “a powerful safeguard” against legislative discrimination. Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 478, n. 17 (1981). The Court generally defers to health and safety regulations because “their burden usually falls on local economic interests as well as other States’ economic interests, thus insuring that a State’s own political processes will serve as a check against unduly burdensome regulations.” Raymond Motor Transp., Inc. v. Rice, 434 U. S. 429, 444, n. 18 (1978). See also Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 675 (1981) (same). Thus, while there is no bright line separating those enactments which are virtually per se invalid and those which are not, the fact that in-town competitors of the transfer facility are equally burdened by Local Law 9 leads me to conclude that Local Law 9 does not discriminate against interstate commerce. II That the ordinance does not discriminate against interstate commerce does not, however, end the Commerce Clause inquiry. Even a nondiscriminatory regulation may nonetheless impose an"
},
{
"docid": "4881088",
"title": "",
"text": "S.Ct. at 1944. In United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Supreme Court held that, within the confines of the first amendment’s guarantee of freedom of speech, the motive of Congress in passing a statute outlawing the burning of draft cards was not a basis for declaring the legislation unconstitutional. “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Id. at 383, 88 S.Ct. at 1682. Within the context of the commerce clause, the Court’s pronouncements are considerably more vague. While recent Supreme Court opinions have clearly contained discussions of lawmakers’ motives, no collection of Justices has yet grounded a majority opinion on the conclusion that the secret motive of the lawmakers was illegitimate. See, e.g., Maine v. Taylor, 477 U.S. 131, 148-49, 106 S.Ct. 2440, 2452-53, 91 L.Ed.2d 110 (1986) (in upholding a Maine statute banning the importation of bait fish, Court refuses to find that the state’s proffered interest in guarding against environmental disease was a post hoc rationalization); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270-71, 104 S.Ct. 3049, 3054-55, 82 L.Ed.2d 200 (1984) (no need to consider secret discriminatory motive, since the state of Hawaii had artlessly proffered a discriminatory local public interest to justify the statute); Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (Justice Brennan criticizes the plurality opinion and Justice Rehnquist’s dissent on grounds that both disregarded evidence of discriminatory motive); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 n. 15, 101 S.Ct. 715, 727 n. 15, 66 L.Ed.2d 659 (1981) (Court assumes that the objectives articulated by the legislature are the actual purposes of the statute, unless an examination of the circumstances forces the Court to conclude that they could not have been a goal of the legislation); Hughes, 441 U.S. at 338 n. 20, 99 S.Ct. at 1737 n. 20 (court rejects state’s “post hoc rationalization” for the statute not because the rationalization was"
},
{
"docid": "21725831",
"title": "",
"text": "to prevent that abuse. Thus, there being no legitimate actual state interest to weigh in the balance, the statute must fall. We find that it is unimportant for our analysis whether the Maryland legislators who enacted section 24(e) actually intended that it have the purposes we ascribe to it. Of course, when legislative history is available, it will be most helpful. See e.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n. 7, 101 S.Ct. 715, 723 n. 7, 66 L.Ed.2d 659 (1981) (purpose of statute is actual purpose stated in legislative history, not purpose used to garner votes). But neither BG & E nor the PSC has cited us to any legislative records concerning the intent of the Maryland legislature when enacting section 24(e). \"Where there is no evidence bearing on the actual purpose for a legislative classification, our analysis necessarily focuses on the suggestions of counsel.” Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 682 n. 3, 101 S.Ct. 1309, 1322 n. 3 (Brennan, J., concurring in judgment); Id. at 702-03, 101 S.Ct. at 1332-33 (Rehnquist, J., dissenting) (Supreme Court does not require a state to articulate a statute’s purpose and may consider possible legislative purposes suggested by state’s lawyers). See also United States Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980) (where ____ there are plausible reasons for [legislative] action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.’ ” (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960)). But cf. Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 43-47 (1972) (intermediate standard of equal protection review would encourage articulated legislative purposes and \"safeguard [ ] the structure of the political process”). . We emphasize that the very notion of a public service company presupposes \"distinctive public constraints ... administered by a government agency that supervises the availability and quality of the firm’s services, the"
},
{
"docid": "23023990",
"title": "",
"text": "regulations. In effect, respondent argues, if the State may impose a valid tax on dealers, it is free to use the proceeds of the tax as it chooses; and if it may independently subsidize its farmers, it is free to finance the subsidy by means of any legitimate tax. Even granting respondent’s assertion that both components of the pricing order would be constitutional standing alone, the pricing order nevertheless must fall. A pure subsidy funded out of general revenue ordinarily imposes no burden on interstate commerce, but merely assists local business. The pricing order in this case, however, is funded principally from taxes on the sale of milk produced in other States. By so funding the subsidy, respondent not only assists local farmers, but burdens interstate commerce. The pricing order thus violates the cardinal principle that a State may not “benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. of Ind. v. Limbach, 486 U. S., at 273-274; see also Bacchus Imports, Ltd. v. Dias, 468 U. S., at 272; Guy v. Baltimore, 100 U. S., at 443. More fundamentally, respondent errs in assuming that the constitutionality of the pricing order follows logically from the constitutionality of its component parts. By conjoining a tax and a subsidy, Massachusetts has created a program more dangerous to interstate commerce than either part alone. Nondiscriminatory measures, like the evenhanded tax at issue here, are generally upheld, in spite of any adverse effects on interstate commerce, in part because “[t]he existence of major in-state interests adversely affected . . . is a powerful safeguard against legislative abuse.” Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 473, n. 17 (1981); see also Raymond Motor Transp., Inc. v. Rice, 434 U. S. 429, 444, n. 18 (1978) (special deference to state highway regulations because “their burden usually falls on local economic interests as well as other States’ economic interests, thus insuring that a State’s own political processes will serve as a check against unduly burdensome regulations”); South Carolina Highway Dept. v. Barnwell Brothers, Inc., 303 U. S. 177, 187 (1938); Goldberg v."
},
{
"docid": "8958799",
"title": "",
"text": "the court finds that the statute does not discriminate on its face, but regulates even-handedly and only indirectly affects interstate commerce, the court then applies a balancing test to determine its constitutionality and upholds the statute unless it places a burden on interstate commerce that is \" ‘clearly excessive in relation to the putative local benefits.’ \" Id. 184 and 189, quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). This flexible approach is referred to as the “Pike ” test, which is applied only \"where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade.” Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). The courts have increasingly decided, however, that there is no bright line separating the per se facially invalid cases from those subject to a balancing approach under Pike, and that in both the critical concern is the overall effect of the challenged statute on both local and interstate activity. Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440-41, 98 S.Ct. 787, 54 L.Ed.2d 664 (1978); Brown-Forman Distillers Cotp. v. New York State Liquor Authority, 476 U.S. 573, 579, 106 S.Ct. 2080, 90 L.Ed.2d 552 (1986). Proof of either a statute's discriminatory purpose or discriminatory effect may lead a court to find that the statute constitutes economic protectionism in violation of the commerce clause. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 n. 15, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984). The central purpose of the dormant commerce clause is to prevent states from promulgating protectionist policies, i.e., regulatory measures aimed to protect in-state ■ economic interests by burdening out-of-state competitors. Houlton, 175 F.3d at 188, citing Camps Newfound/Owatonna, 520 U.S. at 578, 117 S.Ct. 1590 New Energy Co. v. Limbach, 486 U.S. 269, 273-74, 108 S.Ct. 1803, 100 L.Ed.2d 302 (1988), and Clarkstown, 511 U.S. at 390, 114 S.Ct. 1677. As will be discussed in detail later,"
},
{
"docid": "3944944",
"title": "",
"text": "Alternatively, Norfolk Southern argues that heightened scrutiny is appropriate because, when given the opportunity to produce evidence, it will demonstrate that the Delaware General Assembly had a discriminatory purpose. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 471 n. 15, 101 S.Ct. at 727 n. 15 (discriminatory purpose is a basis for finding protectionism). The defendants have moved for summary judgment, however, and Norfolk Southern is not entitled to an evidential hearing unless it has shown some reason to believe the statute is tainted by a constitutionally illegitimate purpose. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When choosing the applicable Commerce Clause standard of review, a court “assume[s] that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of the circumstances forces [it] to conclude that they ‘could not have been a goal of the legislation.’ ” Clover Leaf Creamery, 449 U.S. at 463 n. 7, 471 n. 15,101 S.Ct. at 723 n. 7, 727 n. 15 (quoting from Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975). The declared purpose of the CZA is to protect the coastal environment. The Act explains that it restricts industrial development in the coastal zone so “the State can better protect the natural environment of its bay and coastal areas and safeguard their use primarily for recreation and tourism.” 7 Del.Code Ann. § 7001 (1983). With regard to the ban on offshore bulk product transfer facilities, the Delaware legislature found that: offshore bulk product transfer facilities represent a significant danger of pollution to the coastal zone and generate pressure for the construction of industrial plants in the coastal zone, which construction is declared to be against public policy. For these reasons, prohibition against bulk product transfer facilities in the coastal zone is deemed imperative. Id. Norfolk Southern points to no circumstances that lead us to conclude that the stated environmental objectives “could not have been a goal of the legislation.” Contrary to its suggestion, the statutory exemptions"
},
{
"docid": "7866624",
"title": "",
"text": "101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980), and consequently legislative records are often sparse at the state level, see, e.g., Craig v. Boren, 429 U.S. 190, 199 n.7, 97 S.Ct. 451, 457 n.7, 50 L.Ed.2d 397 (1976). Although plaintiffs appear troubled by the proposition that, in the absence of legislative history, suggestions as to possible legislative motivations must necessarily be advanced by counsel for the State, we recently concluded that “[s]o long as we are careful not to attribute to the legislature purposes which it cannot reasonably be understood to have entertained, we find that in examining [a] challenged provision]] we may consider purposes advanced by counsel ... or suggested initially by ourselves.” Delaware River Basin Comm’n v. Bucks County Water & Sewer Auth., 641 F.2d 1087, 1097 (3d Cir. 1981) (footnote omitted). In this connection, it is worth noting that the district court’s requirement that the State iden tify a “ ‘legitimate, articulated state purpose’ ” that its divorce fee was intended to further, 508 F.Supp. at 834, 837 (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973) (emphasis added)), may run afoul of more recent Supreme Court pronouncements in this area. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469-70, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437 (1981) (plurality opinion) (“the search for the ‘actual’ or ‘primary’ purpose of a statute is likely to be elusive”); Fritz, supra, 449 U.S. at 179, 101 S.Ct. at 461 (“Where ... there are plausible reasons for [legislative] action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision’ ” (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960))); but see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7, 101 S.Ct. 715, 723 n.7, 66 L.Ed.2d 659 (1981). Compare Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 682 n.3, 101 S.Ct. 1309, 1321 n.3, 67 L.Ed.2d 580 (1981) (Brennan, J., concurring in the judgment)"
},
{
"docid": "6571160",
"title": "",
"text": "Selective Service System and did not single out expressive activity. Accordingly, the statute did not even implicate the First Amendment, and the Court would not search the legislative history for signs of an ulterior motive. In the Commerce Clause context, however, once a court finds a statute discriminatory, the case law commands that it search for an ulterior motive. If it did not, the Commerce Clause would be rendered ineffective except in \"the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods.” Dean Milk Co., 340 U.S. at 354, 71 S.Ct. at 297. Whatever may be the case in the First Amendment context, here the court is required to determine whether or not the statute serves a legitimate local purpose, and therefore it cannot simply ignore probative evidence of legislative motive. See abo Regan, \"Dormant Commerce Clause,\" 84 Mich.L.Rev. at 1146 (propriety and adequacy of legislative motive review depend on specific area of law in question). Finally, the court notes that this statute does not include a statement of its own purpose. A court must defer to such statements \"unless an examination of the circumstances forces [it] to conclude that [the stated purpose] ‘could not have been a goal of the legislation.’\" Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 458-61, 463 n. 7, 471 n. 15, 101 S.Ct. 715, 721-22, 723 n. 7, 727 n. 15, 66 L.Ed.2d 659 (1981) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975)); accord Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 403 & n. 21-22 (3d Cir.1987). Nor has the State’s highest court authoritatively construed the purpose of this statute, as was the case in Clover Leaf Creamery. . In numerous dormant Commerce Clause cases, the Supreme Court has observed that leg islation burdening only out-of-state interests not represented in the state legislature is \"not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state.” South Carolina State Highway Department v."
},
{
"docid": "2342782",
"title": "",
"text": "action. And even if Judge Gibbons is correct in reasoning that Garcia undermined the logical basis for the market participant doctrine cases, we lack the authority to overrule them. “If a [Supreme Court] precedent ... has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme Court] the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., — U.S. —, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989). III. THE EQUAL PROTECTION CLAIM In light of Justice Stone’s insight that a state law principally harming those outside the state is unlikely to be subject to the political restraints normally brought to bear on laws adversely affecting those within the state, see South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177, 184 n. 2, 58 S.Ct. 510, 513 n. 2, 82 L.Ed. 734 (1938), and his theory that courts should most carefully scrutinize the constitutionality of legislation harming those at a disadvantage in the political process, see United States v. Carotene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938) (citing 303 U.S. at 184 n. 2, 58 S.Ct. at 513 n. 2), one might expect a high level of judicial solicitude for claims that a state or state subdivision has discriminated against out-of-state residents. The Supreme Court, however, has repeatedly held that a statute being challenged by those asserting such an equal protection claim, in a case “impinging upon no fundamental interest,” is to be reviewed under the rational basis standard that is normally used in matters of economic regulation. Alexandria Scrap, 426 U.S. at 813, 96 S.Ct. at 2499-2500. See, e.g., Northeast Bancorp, Inc. v. Board of Governors, 472 U.S. 159, 178, 105 S.Ct. 2545, 2555-56, 86 L.Ed.2d 112 (1985); Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U.S. 648, 657, 101 S.Ct. 2070, 2077, 68 L.Ed.2d 514 (1981); Baldwin v. Fish & Game Commission of"
},
{
"docid": "19876591",
"title": "",
"text": "Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970): Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. (Citations omitted.) And once that test has been activated, it seems to me that the questions it poses may only be answered by some form of evidentiary hearing. My colleagues decree that the district court should have refrained from conducting a trial because reasonable minds could differ about the potential effects of the resale ban. Ante at 1127. That may be true solely as a matter of substantive due process, but it is not necessarily the case under the dormant Commerce Clause. If a plaintiffs allegations are sufficient to establish that a facially neutral ordinance may have a discriminatory impact — that is, that it may have an incidental effect on interstate commerce — then Pike’s balancing test applies, and the district court may conduct evidentiary proceedings and even a trial to test the actual benefits and burdens of the legislation, regardless of what a reasonable legislator may have believed. It may consider as well whether the legislature’s purpose might be achieved by some means having a lesser impact on interstate commerce. Indeed, that is how the Supreme Court has consistently understood Pike. See, e.g., Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (reviewing evidence adduced in fourteen-day trial addressed to the benefits and burdens of state legislation); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470-74, 101 S.Ct. 715, 727-29, 66 L.Ed.2d 659 (1981) (reviewing evidence adduced in extensive evi-dentiary hearings under Pike);"
},
{
"docid": "7866625",
"title": "",
"text": "School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973) (emphasis added)), may run afoul of more recent Supreme Court pronouncements in this area. See, e.g., Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469-70, 101 S.Ct. 1200, 1204, 67 L.Ed.2d 437 (1981) (plurality opinion) (“the search for the ‘actual’ or ‘primary’ purpose of a statute is likely to be elusive”); Fritz, supra, 449 U.S. at 179, 101 S.Ct. at 461 (“Where ... there are plausible reasons for [legislative] action, our inquiry is at an end. It is, of course, ‘constitutionally irrelevant whether this reasoning in fact underlay the legislative decision’ ” (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 1373, 4 L.Ed.2d 1435 (1960))); but see Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 463 n.7, 101 S.Ct. 715, 723 n.7, 66 L.Ed.2d 659 (1981). Compare Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 682 n.3, 101 S.Ct. 1309, 1321 n.3, 67 L.Ed.2d 580 (1981) (Brennan, J., concurring in the judgment) with id. at 703 n.13, 101 S.Ct. at 1332 n.13 (Rehnquist, J., dissenting); see also G. Gunther, Cases and Materials on Constitutional Law: 1981 Supplement 53 (1981) (“During the 1980-81 Term, extensive debates erupted in a remarkably large number of cases on the question of whether a legislature’s ‘actual purpose’ is relevant to the constitutionality of a challenged law”). . It should be stressed that, in any equal protection action evaluated under the rational relation test, “ ‘those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker.’ ” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464, 101 S.Ct. 715, 724, 66 L.Ed.2d 659 (1981) (quoting Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979)). Plaintiffs did not satisfy their burden merely by asserting that the 1971 legislative action in question made divorce “easier and less complicated” to obtain. The district court’s protestation that the State"
},
{
"docid": "2532107",
"title": "",
"text": "landfill. App. at 6-10. We find Filiberto’s claims in this respect to be very much like those of the petitioners in Exxon Corp. v. Maryland, who asserted in the course of their Commerce Clause attack on a statute prohibiting petroleum producers or refiners from operating retail service stations in Maryland, that the law would interfere with the interstate market by “weakening” some firms and would also injure the public by eliminating some low-cost dealers. 437 U.S. at 127-28, 98 S.Ct. at 2214-15. The Court rejected the “underlying notion that the Commerce Clause protects the particular structure or methods of operation in a retail market.” Id. at 127, 98 S.Ct. at 2215. It explained that any injury to in-state consumers “relates to the wisdom of the statute, not to its burden on commerce.” Id. at 128, 98 S.Ct. at 2215. We note also the well-established maxim of Commerce Clause jurisprudence that the existence of substantial in-state interests harmed by a regulation is “a powerful safeguard” against legislative discrimination. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 473 n. 17, 101 S.Ct. 715, 728 n. 17, 66 L.Ed.2d 659 (1981); accord South Carolina State Highway Dep’t v. Barnwell Bros., Inc., 303 U.S. 177, 187, 58 S.Ct. 510, 515, 82 L.Ed. 734 (1938). It is precisely the evident fact that the Rule places the burden of alleviating the trash problem upon New Jersey residents that makes this case unlike Philadelphia v. New Jersey, where the Supreme Court held that a state law barring all out-of-state trash from state landfills was invalid because “it imposefd] on out-of-state commercial interests the full burden of conserving the State’s remaining landfill space.” 437 U.S. at 628, 98 S.Ct. at 2537. As the Court has subsequently explained, “out-of-state residents were forced to bear the brunt of the conservation program for no apparent reason other than that they lived and voted in other States.” Maine, 477 U.S. at 148 n. 19, 106 S.Ct. at 2453 n. 19. Finally, Filiberto has shown “no demonstrable effect whatsoever on the interstate flow of goods.” Exxon, 437 U.S. at 126 n. 16,"
},
{
"docid": "11042406",
"title": "",
"text": "powerful safeguard’ against legislative discrimination.” J. Filiberto Sanitation Inc. v. State of New Jersey Dept. of Envtl. Protection, 857 F.2d 913, 921 (3rd Cir.1988) (quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 473 n. 17, 101 S.Ct. 715, 728 n. 17, 66 L.Ed.2d 659 (1981)). However, the mere fact that a regulation applies to instate as well as out-of-state interests does not prevent it from being denominated discriminatory. Filiberto, 857 F.2d at 919 (citing Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 350-52, 97 S.Ct. 2434, 2445-46, 53 L.Ed.2d 383 (1977)). As the Third Circuit has said: The essential question [in this regard] is whether the challenged regulation confers an advantage upon in-state economic interests—either directly or through imposition of a burden upon out-of-state interests—vis-a-vis out-of-state competitors. Filiberto, 857 F.2d at 919. Moreover, as previously noted, the type of discrimination prohibited by the Commerce Clause may occur when interstate commerce itself is treated less favorably than intrastate commerce. See Philadelphia v. New Jersey, 437 U.S. at 626, 98 S.Ct. at 2536; Norfolk S., 822 F.2d at 401. In this case, both forms of discrimination are present. The regulation at issue confers a direct advantage upon RISWMC in its capacity as proprietor of the CLF by, in effect, requiring commercial waste to be disposed of at that site. Furthermore, that benefit is gained at the expense of both out-of-state interests (i.e. out-of-state facilities and haulers like. DeVito who transport commercial waste to them) and interstate commerce itself which is totally eliminated. RISWMC’s reliance on Filiberto is misplaced. In that case, a hauler desiring to transport New Jersey waste directly to out-of-state landfills challenged a New Jersey regulation requiring that the waste first be taken to state operated transfer stations for processing. The Court held that the regulation did not violate the Commerce Clause because it did not advantage instate business in relation to out-of-state business in the same market. Filiberto, 857 F.2d at 921. That conclusion was based on the fact that: One of the principal functions of the transfer station is the compacting of trash to"
},
{
"docid": "4881089",
"title": "",
"text": "state’s proffered interest in guarding against environmental disease was a post hoc rationalization); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270-71, 104 S.Ct. 3049, 3054-55, 82 L.Ed.2d 200 (1984) (no need to consider secret discriminatory motive, since the state of Hawaii had artlessly proffered a discriminatory local public interest to justify the statute); Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (Justice Brennan criticizes the plurality opinion and Justice Rehnquist’s dissent on grounds that both disregarded evidence of discriminatory motive); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471 n. 15, 101 S.Ct. 715, 727 n. 15, 66 L.Ed.2d 659 (1981) (Court assumes that the objectives articulated by the legislature are the actual purposes of the statute, unless an examination of the circumstances forces the Court to conclude that they could not have been a goal of the legislation); Hughes, 441 U.S. at 338 n. 20, 99 S.Ct. at 1737 n. 20 (court rejects state’s “post hoc rationalization” for the statute not because the rationalization was proffered after the enactment of the statute, but because it was proffered for the first time in front of the Supreme Court); Hunt, 432 U.S. at 350-53, 97 S.Ct. at 2445-47 (Court examines the evidence of an underlying improper motive, but grounds the decision on the fact that the statute failed to substantially further the asserted local public interest and that there were available, less discriminatory alternatives adequate to preserve the proffered local interests); see also Atlantic Prince, Ltd. v. Jorling, 710 F.Supp. 893, 901-02 n. 19 (E.D.N.Y.1989) (court discusses internal agency memorandum and legislator’s letter to executive branch as evidence of discriminatory motive, but states that such evidence is not necessary to invalidate the statute). More importantly, in none of these decisions has an asserted privilege had to be pierced in order to discover this evidence. At least a few lower courts have concluded that evidence of discriminatory motive is irrelevant under the commerce clause. See, e.g., Primary Care Physicians Group, P.C. v. Ledbetter, 102 F.R.D. 254, 257 (N.D.Ga.1984) (“[Ejven if the plaintiffs can"
},
{
"docid": "6571162",
"title": "",
"text": "Barnwell Brothers, Inc., 303 U.S. 177, 184 n. 2, 58 S.Ct. 510, 513 n. 2, 82 L.Ed. 734 (1938); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 n. 2, 65 S.Ct. 1515, 1519 n. 2, 89 L.Ed. 1915 (1945). See also Raymond Motor Transportation, Inc., 434 U.S. at 444 n. 18, 98 S.Ct. at 795 n. 18; Consolidated Freightways Corp., 450 U.S. at 675-76, 101 S.Ct. at 1318-19; J. Ely, Democracy and Distrust 83-84 (1980); L. Tribe, American Constitutional Law (2d ed.1988) § 6-5. By the same token, courts are far less likely to find a Commerce Clause violation where a statute visits some of its adverse effects upon instate interests represented in the legislature. See Clover Leaf Creamery Co., 449 U.S. at 472-73 & n. 17, 101 S.Ct. at 728-29 n. 17; Consolidated Freightways Corp., 450 U.S. at 675, 101 S.Ct. at 1318; Cresenzi Bird Importers, Inc. v. State of New York, 658 F.Supp. 1441, 1447 n. 4 (S.D.N. Y.), aff'd on opinion below, 831 F.2d 410 (2d Cir.1987). That is not the case here. As previously discussed, there was — at most — only one New York fishing vessel over 90 feet long when § 13-0349 was enacted. While Mr. Mason stated that other New York fishers were contemplating buying large freezer-processor vessels at the time § 13-0349 was enacted, Tr2. 23, the court finds this irrelevant. Commerce Clause analysis, already rather complex, would become utterly bewildering if the courts were required to evaluate discriminatory effect by looking to “potential” or \"prospective” burdens and benefits. Cf. Limbach, 108 S.Ct. at 1809 (refusing to further complicate dormant Commerce Clause doctrine because it would \"serve no purpose except the creation of new uncertainties in an already complex field.”). . The court finds it unnecessary to address defendants’ argument that § 13-0349 resembles statutes enacted by several other states. Defendants have not suggested that these statutes have been constitutionally tested in the courts, nor is the constitutionality of those statutes before this court."
},
{
"docid": "6571161",
"title": "",
"text": "its own purpose. A court must defer to such statements \"unless an examination of the circumstances forces [it] to conclude that [the stated purpose] ‘could not have been a goal of the legislation.’\" Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 458-61, 463 n. 7, 471 n. 15, 101 S.Ct. 715, 721-22, 723 n. 7, 727 n. 15, 66 L.Ed.2d 659 (1981) (quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 n. 16, 95 S.Ct. 1225, 1233 n. 16, 43 L.Ed.2d 514 (1975)); accord Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 403 & n. 21-22 (3d Cir.1987). Nor has the State’s highest court authoritatively construed the purpose of this statute, as was the case in Clover Leaf Creamery. . In numerous dormant Commerce Clause cases, the Supreme Court has observed that leg islation burdening only out-of-state interests not represented in the state legislature is \"not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state.” South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177, 184 n. 2, 58 S.Ct. 510, 513 n. 2, 82 L.Ed. 734 (1938); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 n. 2, 65 S.Ct. 1515, 1519 n. 2, 89 L.Ed. 1915 (1945). See also Raymond Motor Transportation, Inc., 434 U.S. at 444 n. 18, 98 S.Ct. at 795 n. 18; Consolidated Freightways Corp., 450 U.S. at 675-76, 101 S.Ct. at 1318-19; J. Ely, Democracy and Distrust 83-84 (1980); L. Tribe, American Constitutional Law (2d ed.1988) § 6-5. By the same token, courts are far less likely to find a Commerce Clause violation where a statute visits some of its adverse effects upon instate interests represented in the legislature. See Clover Leaf Creamery Co., 449 U.S. at 472-73 & n. 17, 101 S.Ct. at 728-29 n. 17; Consolidated Freightways Corp., 450 U.S. at 675, 101 S.Ct. at 1318; Cresenzi Bird Importers, Inc. v. State of New York, 658 F.Supp. 1441, 1447 n. 4 (S.D.N. Y.), aff'd on opinion below, 831 F.2d 410 (2d Cir.1987). That"
},
{
"docid": "22096869",
"title": "",
"text": "interests harmed by a regulation is “a powerful safeguard” against legislative discrimination. Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 478, n. 17 (1981). The Court generally defers to health and safety regulations because “their burden usually falls on local economic interests as well as other States’ economic interests, thus insuring that a State’s own political processes will serve as a check against unduly burdensome regulations.” Raymond Motor Transp., Inc. v. Rice, 434 U. S. 429, 444, n. 18 (1978). See also Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 675 (1981) (same). Thus, while there is no bright line separating those enactments which are virtually per se invalid and those which are not, the fact that in-town competitors of the transfer facility are equally burdened by Local Law 9 leads me to conclude that Local Law 9 does not discriminate against interstate commerce. II That the ordinance does not discriminate against interstate commerce does not, however, end the Commerce Clause inquiry. Even a nondiscriminatory regulation may nonetheless impose an excessive burden on interstate trade when considered in relation to the local benefits conferred. See Brown-Forman Distillers, 476 U. S., at 579. Indeed, we have long recognized that “a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to .. . the people of the State enacting such statute.” Brimmer v. Rebman, 138 U. S. 78, 83 (1891) (internal quotation marks and citation omitted). Moreover, “the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Pike, 397 U. S., at 142. Judged against these standards, Local Law 9 fails. The local interest in proper disposal of waste is obviously significant. But this interest could be achieved by simply requiring that all waste disposed of in the town be properly processed somewhere. For example, the town could ensure proper processing by setting specific standards with which all"
},
{
"docid": "19876592",
"title": "",
"text": "substantive due process, but it is not necessarily the case under the dormant Commerce Clause. If a plaintiffs allegations are sufficient to establish that a facially neutral ordinance may have a discriminatory impact — that is, that it may have an incidental effect on interstate commerce — then Pike’s balancing test applies, and the district court may conduct evidentiary proceedings and even a trial to test the actual benefits and burdens of the legislation, regardless of what a reasonable legislator may have believed. It may consider as well whether the legislature’s purpose might be achieved by some means having a lesser impact on interstate commerce. Indeed, that is how the Supreme Court has consistently understood Pike. See, e.g., Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981) (reviewing evidence adduced in fourteen-day trial addressed to the benefits and burdens of state legislation); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470-74, 101 S.Ct. 715, 727-29, 66 L.Ed.2d 659 (1981) (reviewing evidence adduced in extensive evi-dentiary hearings under Pike); Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 444, 98 S.Ct. 787, 795-96, 54 L.Ed.2d 664 (1978) (invalidating state regulation under Pike based upon the plaintiffs “massive array of evidence” which disproved the regulation’s alleged benefit). A district court would not, in such a ease, overstep its bounds by second-guessing the policy judgments of elected officials. It instead would act in the limited fashion envisioned by Pike to preserve the integrity of our interstate system of commerce. Here, then, the district court erred not so much in deciding to conduct a trial, as the majority implies, but in deciding that Pike applies to Chicago’s ordinance in the first place. Had that decision been correct, the trial below would have been entirely appropriate. Yet, because plaintiffs never alleged that Chicago’s ordinance discriminates against interstate commerce in any way, Pike was never activated, and a trial was therefore unnecessary. The district court also found that Chicago’s resale ban violates principles of substantive due process. I can agree that this doctrine has only a limited role to"
},
{
"docid": "2342759",
"title": "",
"text": "v. Board of Wardens, 53 U.S. (12 How.) 299, 319 (1852). The commerce clause has been so construed in order to preserve “our national solidarity” by preventing the “rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation,” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522-23, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935); to promote “[t]he material success that has come to inhabitants of the states which make up this federal free trade unit,” H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 538, 69 S.Ct. 657, 665, 93 L.Ed. 865 (1949); and in recognition that “when the regulation is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state,” South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U.S. 177, 185 n. 2, 58 S.Ct. 510, 513 n. 2, 82 L.Ed. 734 (1938). A. The Market Participant Doctrine Swin contends that Lycoming’s attempt to preserve its landfill’s capacity for local residents by charging a higher price to dispose of distant waste in the landfill (and limiting the volume of distant waste accepted by the landfill) constitutes an impermissible interference with and discrimination against interstate commerce in violation of the commerce clause. The district court granted the defendants’ motion to dismiss the commerce clause claim on the ground that Lycoming had acted as a “market participant.” Under the market participant doctrine, a state or state subdivision that acts as a market participant rather than a market regulator “is not subject to the restraints of the Commerce Clause.” White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204, 208, 103 S.Ct. 1042, 1045, 75 L.Ed.2d 1 (1983). Application of the distinction between “market participant” and “market regulator” has, however, occasioned considerable dispute in the Supreme Court’s jurisprudence. The author of each of the three opinions that applied the doctrine—Hughes v. Alexandria Scrap Corp., 426"
},
{
"docid": "3944943",
"title": "",
"text": "activity foreclosed by facially evenhanded state regulation has not by itself been held to trigger heightened scrutiny. In Exxon Corp. v. Maryland, 437 U.S. 117, 98 S.Ct. 2207, 57 L.Ed.2d 91 (1978), for example, a Maryland statute barred petroleum producers and refiners from operating retail gas stations in the state. Since there were no petroleum producers or refiners based in Maryland at the time the statute was enacted, its initial impact was felt only by out-of-state firms. As the Court noted, however, “this fact does not lead, either logically or as a practical matter, to a conclusion that the State is discriminating against interstate commerce.” 437 U.S. at 125, 98 S.Ct. at 2214. See also Commonwealth Edison Co. v. Montana, 453 U.S. 609, 619, 101 S.Ct. 2946, 2954, 69 L.Ed.2d 884 (1981) (claim of discrimination based on fact that evenhanded tax on coal fell largely on out-of-state coal purchasers rejected). Thus, we agree with the district court that Norfolk Southern has not alleged any dis criminatory effects that would justify the application of heightened scrutiny. Alternatively, Norfolk Southern argues that heightened scrutiny is appropriate because, when given the opportunity to produce evidence, it will demonstrate that the Delaware General Assembly had a discriminatory purpose. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 471 n. 15, 101 S.Ct. at 727 n. 15 (discriminatory purpose is a basis for finding protectionism). The defendants have moved for summary judgment, however, and Norfolk Southern is not entitled to an evidential hearing unless it has shown some reason to believe the statute is tainted by a constitutionally illegitimate purpose. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When choosing the applicable Commerce Clause standard of review, a court “assume[s] that the objectives articulated by the legislature are actual purposes of the statute, unless an examination of the circumstances forces [it] to conclude that they ‘could not have been a goal of the legislation.’ ” Clover Leaf Creamery, 449 U.S. at 463 n. 7, 471 n. 15,101 S.Ct. at 723 n. 7, 727 n. 15 (quoting from"
}
]
|
56685 | reasons, the Court concludes that the Commission is not a government entity. The Court also rejects the second possibility. The Supreme Court has recognized that where: the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment. Lebron v. National R.R. Corp., 513 U.S. 374, 400, 115 S.Ct. 961, 974-75, 130 L.Ed.2d 902 (1995). A prerequisite for characterization as a private entity charged with disseminating the Government’s speech is government control of the entity. Here, the Government retains virtually no control over the Commission. Unlike REDACTED the government retains no authority to edit, change, or censor the speech of the Commission’s speech. There, a school principal, whose actions were attributable to the Government, was given authority over the content of the bulletin board, even if materials did not need pre-approval before posting. Id. at 1006. While the Director of the Commission is an ex officio member of the Commission, he is a nonvoting member, with no authority over advertisements and no power to veto Commission decisions. By contrast, the United States Secretary of Agriculture (“Secretary of Agriculture”) has final authority over all the activities of the Cattlemen’s Beef Promotion and Research Board, a comparable body to the Commission, and actually appoints its members. See 7 U.S.C. § | [
{
"docid": "8831888",
"title": "",
"text": "school-sponsored or imprimatur speech in a nonpublic forum — as the district court concluded — we would necessarily be compelled by Planned Parenthood to review LAUSD’s actions through a viewpoint neutrality microscope. Viewpoint neutrality, however, does not apply to LAUSD’s actions in this case. This case is not controlled by Hazel-wood or Planned Parenthood because it is a case of the government itself speaking, whether the government is characterized as Leichman High, LAUSD, or the school board. It is not a case involving the risk that a private individual’s private speech might simply “bear the imprimatur” of the school or be perceived by outside individuals as “school-sponsored.” Rather than focusing on what members of the public might perceive Downs’s speech to be, in this case we find it more helpful to focus on who actually was responsible for the speech on Leichman High’s Gay and Lesbian Awareness bulletin boards. Only school faculty and staff had access to post materials on these boards. While these faculty and staff members may have received materials from outside organizations, the faculty and staff members alone posted material on the bulletin boards, and at all times their postings were subject to the oversight of the school principals. Although much, if not all, of what Downs posted appeared on the bulletin board directly across the hall from his assigned classroom, the proximity of the board to his classroom detracts in no way from the conclusion that the bulletin board, like all others in Leichman High’s halls, were the property and responsibility of Leichman High and LAUSD. That Leichman High’s principals do not spend the majority of their days roaming the school’s halls strictly policing — or, in Downs’s point of view, censoring — the school’s bulletin boards does not weaken our conclusion that there is no genuine issue of material fact concerning whether Olmsted and Marino had the authority to enforce and give voice to school district and school board policy. Inaction does not necessarily demonstrate a lack of ability or authority to act. No admissible evidence refutes Olmsted’s and Marino’s assertions that they had authority"
}
]
| [
{
"docid": "15276407",
"title": "",
"text": "is not state action. Perpetual cited Desiderio in its brief before the district court and on appeal and does not attempt to distinguish it; it simply asserts that NASD is a state actor. In support of this bald assertion, Perpetual cites Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). Lebron is clearly distinguishable; Amtrak, the corporation at issue in Lebrón, was created by the government “by special law for the furtherance of government objectives,” and the government “retain[ed] for itself permanent authority to appoint a majority of the directors of’ Amtrak. Id. at 400, 115 S.Ct. 961. There is no commonality between NASD and Amtrak. In its brief, Perpetual also encourages this Court to employ a new test when determining whether a private corporation is a “state actor” for purposes of the Constitution. In the case at hand, the application of the test would require us to ask whether, in NASD’s absence, the government would need to take over the role of regulator of NASD’s member companies. Perpetual’s proposed test is contrary to the analysis required by the Supreme Court in Lebrón and the other cases Perpetual cites for support: First, ... [t]he complaining party must ... show[, in addition to the fact that the entity is regulated by- the state,] that there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.... Second, ... a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.... Third, the required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State. Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quotation marks and citations omitted); see Lugar v. Edmondson Oil Co., 457 U.S. 922, 941,"
},
{
"docid": "1790010",
"title": "",
"text": "Bank of America, to foreclose by advertisement. (Compl. ¶ 26.) The Fifth Amendment “applies] to and restrict[s] only the Federal Government and not private persons.” Pub. Utils. Comm’n v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 96 L.Ed. 1068 (1952). “[W]here ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government .... ” Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 399, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). According to the Sixth Circuit: Lebrón identifies three major questions necessary to determine whether a pri vate corporation is an arm of the federal government for purposes of federal constitutional challenges: (1) Creation: Did the government create the corporation by a special law? (2) Objectives: Was the corporation created for the furtherance of governmental objectives? (3) Control: Did the government retain for itself permanent authority to appoint a majority of the directors of the corporation? Lebron, 513 U.S. at 400, 115 S.Ct. 961. Parrett v. Se. Boll Weevil Eradication Found., Inc., 155 Fed.Appx. 188, 191-92 (6th Cir.2005). Because Fannie Mae is not under permanent governmental control, it is not a governmental actor for purposes of constitutional challenges. Fannie Mae was created as a private corporation in 1968. 12 U.S.C. § 1716(b). In 2008, Congress empowered the FHFA to act as conservator of Fannie Mae for the purpose of “reorganizing, rehabilitating, or winding up the affairs.” 12 U.S.C. § 4617(a)(2). This purpose, which centers on activities of finite duration, illustrates that the conservatorship of Fannie Mae is a temporary situation. This understanding is supported by representations of both the FHFA and the Office of Management and Budget (“OMB”). (See, e.g., Dkt. No. 10, Exs. A, B, F, G, H, I.) For example, in 2011, the acting director of the FHFA testified in a congressional hearing that conservatorship of Fannie Mae is “unlikely to continue in its current form.” (Dkt. No. 10, Ex. A, at 8.) Similarly, in the proposed Fiscal Year 2012"
},
{
"docid": "20783504",
"title": "",
"text": "viewed as largely uncollectible. STANDARD OF REVIEW Dismissal for failure to state a claim on which relief can be granted is reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995). A grant of summary judgment is also reviewed de novo. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). DISCUSSION I. Freddie Mac’s Actions Were Not Subject to the Fifth Amendment Appellant asserts that the district court erred in concluding that its allegation that Freddie Mac violated its Fifth Amendment rights by terminating its eligibility without due process failed to state a claim. Because the Fifth Amendment Due Process Clause applies only to the federal government, Public Utilities Commission v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 820, 96 L.Ed. 1068 (1952), Freddie Mac is not restricted by that Clause unless it is part of the federal government or its actions constituted federal action. We conclude that neither is the case. A. Freddie Mac Is Not a Government Entity The Supreme Court’s recent decision in Lebron v. National Railroad Passenger Corp., — U.S.-, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), provides the appropriate framework for analysis of Freddie Mac’s governmental status. The Court there held that “where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Id. at ---, 115 S.Ct. at 974-75. Since Freddie Mac is a corporation chartered by Congress, the two relevant criteria for judging Freddie Mae’s status as a federal entity for Fifth Amendment purposes are the extent to which its objectives are governmental and the extent to which the government directs and controls the corporation’s pursuit of those objectives. 1. Objectives The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) wrote the purposes of Freddie Mac into law for the first time. In the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, Congress emphasized the public nature of"
},
{
"docid": "22201377",
"title": "",
"text": "described the institution as “a public body, a body corporate and politic.” Id. After noting, under North Carolina law, that the power of eminent domain is governmental in nature, it was recognized in Eaton that JWMH was a body exercising a segment of sovereign authority. Under these circumstances, it was concluded as follows: It is not suggested that each of the enumerated factors has independent potency to invoke the constitutional requirement. It is enough for present purposes to hold, as we do, that the record in its entirety leads to the conclusion that the hospital is performing the state’s function and is the chosen instrument of the state. Under our constitutional commitment the James Walker Hospital is therefore bound by the provisions of the Fourteenth Amendment to refrain from the discrimination alleged in the complaint. Id. at 715. PCMHI does not possess the power of eminent domain. Nor is it aptly described either as a municipal corporation or as “a public body, a body corporate and politic.” The absence of these attributes of sovereignty distinguish the comprehensive bundle of state-related characteristics in Eaton from those present here. III. As an alternate ground, Dr. Philips has made reference to Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). In Lebron, the National Railroad Passenger Corporation (“Amtrak”) was deemed part of the federal government for First Amendment purposes rather than the private entity that Congress explicitly endeavored to create. Lebron, 513 U.S. at 400, 115 S.Ct. 961 (‘We hold that where, as here, the Government [1] creates a eorpo ration by special law, [2] for the furtherance of governmental objectives, and [3] retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.”). The district court observed that “PCMH[I] was not created by special statute.” Id. at 784. Dr. Philips does not appear to contend otherwise, inasmuch as he cites Lebrón but once in his briefing, and he does not point us to any allegation in the complaint"
},
{
"docid": "22839267",
"title": "",
"text": "state. Id. (internal quotation marks and citations omitted). Recently, the Supreme Court identified a “host of facts” that can bear on whether an activity may be attributable to the state: when the state exercises its coercive power or significant encouragement, when a private actor is a willful participant in joint activity with the state, when an entity is controlled by the state or an agency thereof, when an entity has been delegated a public function by the state, when an actor is entwined with governmental policies, or when the government is entwined in the entity’s management or control. See Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 121 S.Ct. 924, 930, 148 L.Ed.2d 807 (2001). In an earlier case specifically addressing the status of a government-created corporation as a state actor, the Supreme Court held that where “the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 400, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (holding that Amtrak was a state actor). The corporate defendant in the present case is the Cooperative. It was originally created and is funded under a federal program providing for cooperative extension programs to operate in conjunction with the United States Department of Agriculture and state land grant universities to disseminate useful information for individuals living in rural areas. See 7 U.S.C. § 341; see also Knight v. Alabama, 14 F.3d 1534, 1546-49 (11th Cir.1994) (describing cooperative extension programs). In New York, the state’s County Law allows counties to create subordinate governmental agencies to provide extension services in conjunction with two Cornell University colleges. See N.Y. County L. § 224(8). Under New York law, a “subordinate governmental agency” is an organization which either through legislative act or contract with the state or subdivision of the state performs governmental functions. See People v. Brooklyn Cooperage Co., 187 N.Y. 142, 156, 79"
},
{
"docid": "19356577",
"title": "",
"text": "v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), Fannie Mae is a private corporation and not a government actor for constitutional purposes. In opposition, Plaintiff argues that Fannie Mae is a government actor following its take-over by FHFA. Fannie Mae operates in the secondary mortgage market, purchasing residential mortgages, pursuant to 12 U.S.C. § 1716. In 1968, Congress privatized Fannie Mae, transforming it into a “private corporation.” 12 U.S.C. § 1716(b). In 2008, Congress created FHFA to act as conservator or receiver of Fannie Mae for purposes of “reorganizing, rehabilitating, or winding up [its] affairs.” 12 U.S.C. § 4617(a)(2). FHFA then placed Fannie Mae and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) into conservator-ships. As Conservator, FHFA may: (i)take over the assets of and operate the regulated entity with all the powers of the shareholders, the directors, and the officers of the regulated entity and conduct all business of the regulated entity; (ii) collect all obligations and money due the regulated entity; (iii) perform all functions of the regulated entity in the name of the regulated entity which are consistent with the appointment as conservator or receiver; (iv) preserve and conserve the assets and property of the regulated entity; and (v) provide by contract for assistance in fulfilling any function, activity, action, or duty of the Agency as conservator or receiver. 12 U.S.C. § 4617(b)(2)(B). Fannie Mae argues it is not a government actor for purposes of Plaintiffs constitutional claim, despite the conservator-ship. In Lebron v. National Railroad Passenger Corp., the Supreme Court defined what type of entity constitutes a federal actor for the purpose of a constitutional claim. The threshold question is whether a federal actor was involved, as purely private action does not trigger constitutional protection. A corporation is part of the federal government when Congress creates the entity “by special law, for the furtherance of governmental objectives, and retainfs] for itself permanent authority to appoint a majority of the directors of that corporation.” Lebron, 513 U.S. at 400, 115 S.Ct. 961. The Supreme Court determined in Lebrón that Amtrak"
},
{
"docid": "19551507",
"title": "",
"text": "of production and facilitation, confirmed Melendez's indefinite suspension. District Court opinion. With respect to the Plaintiffs' First Amendment claim against MNN, the District Court recognized that the claim, pursued under 42 U.S.C. § 1983, was viable only if MNN was a state actor because the First Amendment limits only governmental action. Acknowledging that MNN was a private entity, the Court first considered whether its actions might be subject to the First Amendment because \" '[a]ctions of private entities can sometimes be regarded as governmental action for constitutional purposes.' \" Halleck , 224 F.Supp.3d at 243 (quoting Lebron v. National R.R. Passenger Corp. , 513 U.S. 374, 378, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) ). The District Court noted that in Lebron the Supreme Court had stated that \" 'where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.' \" Id. (quoting Lebron , 513 U.S. at 399, 115 S.Ct. 961 ). The District Court deemed Lebron inapplicable because the Manhattan Borough President had authority to appoint only two of the thirteen members of MNN's board. See id. The District Court then considered whether the First Amendment might apply to MNN's actions on the theory that a public access channel is a public forum. See Perry Education Assn. v. Perry Local Educators' Assn. , 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (recognizing traditional and designated public forums). Judge Pauley noted that Justices of the Supreme Court have taken different positions on the public forum issue, see Halleck , 224 F.Supp.3d at 245 (citing opinions of Justices Kennedy and Thomas with respect to public access channels and Justice Breyer with respect to leased channels), as have courts of appeals and district courts within the Second Circuit, see id. at 244-46. Deeming the issue a \"close call,\" id. at 246, Judge Pauley ruled that a public access channel is not a public forum"
},
{
"docid": "19551530",
"title": "",
"text": "Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). MNN's designation in a franchise agreement and regulation by a municipal commission do not in and of themselves demonstrate that MNN is \"controlled\" or \"compelled\" by the state. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 543-44, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (finding that granting of a corporate charter by Congress does not create state action because \"[e]ven extensive regulation by the government does not transform the actions of the regulated entity into those of the government.\"). To allege compulsion, a plaintiff must show that the government compelled the particular activity that allegedly caused the constitutional injury. See Sybalski, 546 F.3d at 257-58. The amended complaint has no allegation of government involvement in the appellants' suspensions from which state action can be inferred. Joint Action. The \"decisive factor\" in entwinement analysis is the \"amount of control [the municipality] could potentially exercise over the [private corporation's] 'internal management decisions'.\" Grogan, 768 F.3d at 269 (internal citations omitted). A corporation thus becomes \"part of the Government for the purposes of the First Amendment\" when the Government retains \"permanent authority to appoint a majority of the directors of that corporation.\" Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 400, 115 S.Ct. 961, 130 L.Ed.2d 902 (1999). The city's power of appointment is limited to two of MNN's thirteen board members, and is clearly insufficient to support a finding of state action. See Grogan, 768 F.3d at 269. Nor do the statutory guidelines for cable access or the borough's oversight activities establish joint action between the Government and MNN. \"[A] regulatory agency's performance of routine oversight functions to ensure that a company's conduct complies with state law does not so entwine the agency in corporate management as to constitute state action.\" Tancredi, 316 F.3d at 313 ; see also Sybalski, 546 F.3d at 258-59. * * * This leaves the \"public function\" test as the only remaining vehicle by which MNN's activities may be considered state action."
},
{
"docid": "6135234",
"title": "",
"text": "extract from Lebron’s fact-intensive inquiry a ‘three-pronged’ formula that would limit Lebron’s reasoning to the particular facts of that case.” The plaintiffs assert that “[t]he Court in Lebrón did not hold that state-action analysis hinges on the number of directors who are public officials or who are appointed by public officials.” The plaintiffs further respond that “the [first] two factors relied on in Lebrón are indisputably present in this case....” In Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), the plaintiff sued Amtrak because its vice president, in accordance with an Amtrak policy, refused to grant the plaintiffs request to post a political advertisement on a large billboard located in Penn Station. Id. at 376, 115 S.Ct. 961. Lebrón claimed that the vice president’s refusal violated his First and Fifth Amendment rights. Id. at 377, 115 S.Ct. 961. The District Court for the Southern District of New York concluded that Amtrak was a government actor because it maintained “close ties to the Federal Government.” Id. The Court of Appeals for the Second Circuit reversed and concluded that a congressional act created Amtrak wherein Congress specifically stated that Amtrak was not a government entity. Id. at 378, 115 S.Ct. 961. The Supreme Court’s inquiry in Lebrón focused on whether Amtrak was a “[gjovernment-created and controlled corporation].” Id. at 394, 395-400, 115 S.Ct. 961. In determining whether Amtrak was a government actor, the Supreme Court developed a three-pronged analytical test: where... [1] the Government creates a corporation by special law, [2] for the furtherance of government objectives, and [3] retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment. Id. at 400, 115 S.Ct. 961. In order for an entity to be deemed a state actor each of the three prongs must be satisfied. See, e.g., Barrios-Velazquez v. Asociacion De Empleados Del Estado Libre Asociado De Puerto Rico (AEELA), 84 F.3d 487, 491-92 (1st Cir.1996) (holding that because the government of Puerto Rico did not appoint"
},
{
"docid": "19551506",
"title": "",
"text": "stated that the 1% video violated MNN's program content restrictions barring \"participation in harassment or aggravated threat toward staff and/or other producers.\" FAC ¶ 86. The Plaintiffs allege that Halleck was suspended because the 1% video \"presented the view that MNN was more interested in pleasing 'the 1%' than addressing the community programming needs of those living in East Harlem.\" FAC ¶ 97. In a letter dated August 1, 2013, defendant Daniel Coughlin, MNN's executive director, suspended Melendez indefinitely from all MNN services and facilities. Coughlin claimed that at an encounter in July 2013 Melendez had \"pushed him over.\" FAC ¶ 106. The Plaintiffs allege that Melendez was suspended because of the views he expressed in the 1% video. In a letter dated August 9, 2013, Coughlin suspended Halleck for one year from all MNN services and facilities, claiming receipt of complaints about the 1% video. Although Halleck's suspension has ended, she cannot air the 1% video on any public access channels in Manhattan. By letter dated April 24, 2015, defendant Cory Brice, MNN's manager of production and facilitation, confirmed Melendez's indefinite suspension. District Court opinion. With respect to the Plaintiffs' First Amendment claim against MNN, the District Court recognized that the claim, pursued under 42 U.S.C. § 1983, was viable only if MNN was a state actor because the First Amendment limits only governmental action. Acknowledging that MNN was a private entity, the Court first considered whether its actions might be subject to the First Amendment because \" '[a]ctions of private entities can sometimes be regarded as governmental action for constitutional purposes.' \" Halleck , 224 F.Supp.3d at 243 (quoting Lebron v. National R.R. Passenger Corp. , 513 U.S. 374, 378, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) ). The District Court noted that in Lebron the Supreme Court had stated that \" 'where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.' \""
},
{
"docid": "6135233",
"title": "",
"text": "and the laws” of the United States. 42 U.S.C. § 1983. A plaintiff may bring a claim “under § 1983 only if the defendant acted ‘under color’ of state law.” Rendell-Baker v. Kohn, 457 U.S. 830, 835, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). An entity can be deemed to have acted ‘under color’ of state law either under the state actor analysis or the state action analysis. A. State Actor Yale first argues that it is not a state actor for § 1983 purposes. Yale, relying on Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902(1995), posits that the amended complaint has failed to satisfy the third prong of a three-pronged analytical test, which determines whether an entity is a state actor. Specifically, Yale contends that “the plaintiffs have not alleged ... that the State of Connecticut has retained permanent authority to appoint a majority of the members of the Yale Corporation or any governing body at Yale University.” The plaintiffs respond that “Yale asks this Court to extract from Lebron’s fact-intensive inquiry a ‘three-pronged’ formula that would limit Lebron’s reasoning to the particular facts of that case.” The plaintiffs assert that “[t]he Court in Lebrón did not hold that state-action analysis hinges on the number of directors who are public officials or who are appointed by public officials.” The plaintiffs further respond that “the [first] two factors relied on in Lebrón are indisputably present in this case....” In Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), the plaintiff sued Amtrak because its vice president, in accordance with an Amtrak policy, refused to grant the plaintiffs request to post a political advertisement on a large billboard located in Penn Station. Id. at 376, 115 S.Ct. 961. Lebrón claimed that the vice president’s refusal violated his First and Fifth Amendment rights. Id. at 377, 115 S.Ct. 961. The District Court for the Southern District of New York concluded that Amtrak was a government actor because it maintained “close ties to the Federal Government.” Id. The Court"
},
{
"docid": "11413966",
"title": "",
"text": "the United States government, all are liable for retaliating against her for the exercise of her First Amendment rights. Because Herron’s Bivens claim is based on her contention that Fannie Mae “is not a private entity but Government itself,” we need not “traverse th[e] difficult terrain” of the state action doctrine. Lebron, 513 U.S. at 378, 115 S.Ct. 961; see also Sprauve v. W. Indian Co., 799 F.3d 226, 229-30 (3d Cir. 2015); Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 83 (2d Cir. 2000), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Instead, we apply the framework the Supreme Court established in Lebrón for determining whether a “Government-created and -controlled corporation ]” is a government actor for constitutional purposes. 513 U.S. at 397, 115 S.Ct. 961. In Lebrón, the Court considered whether the National Railroad Passenger Corporation, commonly known as Amtrak, was part of the government for First Amendment purposes. See id. at 376, 394, 115 S.Ct. 961. Considering the “public and judicial understanding of the nature of Government-created and -controlled corporations over the years,” see id. at 394-97, 115 S.Ct. 961, the Court noted that arrangements providing for temporary government control over a government-created corporation do not make that corporation a government actor, see id. at 398-99, 115 S.Ct. 961. The Court then concluded that a corporation is “part of the Government” for constitutional purposes when: “[ (1) ] the Government creates [the] corporation by special law, [ (2) ] for the furtherance of governmental objectives, and [ (3) ] retains for itself permanent authority to appoint a majority of the directors of that corporation Id. at 400, 115 S.Ct. 961. Applying these criteria, the Court held that Amtrak was a government actor because “it is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees.” See id. at 397-98, 115 S.Ct. 961. As our sister circuits recognize, Lebrón sets forth a three-part standard to determine whether a government-created corporation"
},
{
"docid": "16896971",
"title": "",
"text": "provision requiring LSC to comply with the Constitution. Instead, Congress directed that in all other respects LSC should be treated as a private, non-profit corporation. See 42 U.S.C. §§ 2996b(c), 2996e(a), 2996i(e). From the text of the statute, it is evident that Congress did not intend LSC to be a state actor for constitutional purposes. The legislative history also evidences this intent. See H.R.Rep. No. 247, 93d Cong., 1st Sess. (1973) reprinted in 1974 U.S.C.C.A.N. 3872, 3873. Other courts have come to the same conclusion. E.g., Newman v. Legal Services Corp., 628 F.Supp. 535, 541-42 (D.D.C.1986); Spo kane County Legal Services, Inc. v. Legal Services Corp., 433 F.Supp. 278, 280-81 (E.D.Wash.1977). However, it is not for Congress to make the final determination of LSC’s status as a government entity for purposes of determining the constitutional rights of citizens affected by its actions. See Lebron v. National RR Passenger Corp., 513 U.S. 374, 392, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). Instead, courts must determine whether a government-created “private” corporation is part of the Government for constitutional purposes by examining the corporation’s purpose, activities, board composition, financing, and its overall relationship to the federal government. Id. at 397-99, 115 S.Ct. 961. The Lebrón Court held that “where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.” Id. at 400, 115 S.Ct. 961. All of the factors that led the Court to consider Amtrak a state actor apply with equal, if not greater, force to LSC. Congress created LSC to fulfill an important governmental objective by providing legal services in noncriminal matters to the underprivileged. See 42 U.S.C. § 2996. Unlike Amtrak, which has some privately-appointed Directors, LSC’s Board is composed entirely of political appointees, id. § 2996e(a), and LSC’s funding is almost entirely made up of federal appropriations. Id. § 2996L From the reasoning and holding of Lebrón, there is no question that LSC is a"
},
{
"docid": "19770157",
"title": "",
"text": "(D.C.Cir.2007). III. ANALYSIS It is well-settled that pre-conservatorship Fannie Mae was a private actor. Further, the imposition of conservatorship and the execution of the Financial Agency Agreement did not transform Fannie Mae into a government actor. In Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), the Supreme Court defined what type of entity constitutes a federal actor for the purpose of a constitutional claim. The threshold question for invoking constitutional protection is whether a federal actor was involved, as purely private action does not trigger constitutional protection. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). A corporation is part of the federal government when Congress created the entity “by special law, for the furtherance of governmental objectives, and retain[ed] for itself permanent authority to appoint a majority of the directors of that corporation.” Lebron, 513 U.S. at 400, 115 S.Ct. 961. The Supreme Court determined in Lebron that Amtrak was a federal entity; it was created by statute for a government purpose and was controlled entirely by the United States. Amtrak’s board of directors consisted of nine members: the Secretary of Transportation, five appointed by the President, Amtrak’s president (appointed by the Board), and two elected by the holders of preferred stock (all of which was owned by the United States). Id. at 385, 115 S.Ct. 961. By way of comparison, the Court noted that the Communications Satellite Corporation (“Comsat”) was nongovernmental because only three of its fifteen directors were appointed by the President. Id. at 390, 115 S.Ct. 961. A. Pre Conservatorship Fannie Mae When Fannie Mae was created by Congress, the government did not retain the permanent authority to appoint the majority of its directors. Congress expressly designated Fannie Mae as a private corporation, see 12 U.S.C. § 1716b, controlled by a Board of Directors elected annually by Fannie Mae shareholders. See 12 U.S.C. § 1718(a) (providing that common shareholders have right to vote for directors); id. § 1723(b) (providing that Fannie Mae’s board is elected annually"
},
{
"docid": "23332630",
"title": "",
"text": "case not cited by either of the parties. In Lebrón, the Supreme Court considered the state actor status of the National Railroad Passenger Corporation, commonly known as Amtrak. Amtrak was established by a Congressional statute, which explicitly states that it “ ‘will not be an agency or establishment of the United States Government.’” 513 U.S. at 391, 115 S.Ct. 961 (quoting Railroad Passenger Service Act of 1970, 84 Stat. 1330). This designation, however, was held to be anything but conclusive because “it is not for Congress to make the final determination of Amtrak’s status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions.” Id. at 392, 115 S.Ct. 961. Rather, the Court looked to the fact that the statute creating Amtrak also “provide[d] for a board of nine members, six of whom [were] appointed directly by the President of the United States.” Id. at 385, 115 S.Ct. 961. Two other members of the board are appointed by Amtrak’s preferred shareholders, and the final member was appointed by the other eight members. Id. The Court concluded that “where ... the Government creates a corporation by special law, for the furtherance of government objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation,” the corporation would be considered a state actor. Id. at 400, 115 S.Ct. 961. Following Lebrón, we have utilized the following standard to determine whether or not a corporate entity qualifies as a state actor: “only if (1) the government created the corporate entity by special law, (2) the government created the entity to further governmental objectives, and (3) the government retains ‘permanent authority to appoint a majority the directors of the corporation’ will the corporation be deemed a government entity for the purpose of the state action requirement.” Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 84 (2d Cir.2000) (quoting Lebron, 513 U.S. at 400, 115 S.Ct. 961). In Hack, we considered whether Yale qualified as a state actor. Although we found that the first two elements of the Lebrón"
},
{
"docid": "23332631",
"title": "",
"text": "the other eight members. Id. The Court concluded that “where ... the Government creates a corporation by special law, for the furtherance of government objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation,” the corporation would be considered a state actor. Id. at 400, 115 S.Ct. 961. Following Lebrón, we have utilized the following standard to determine whether or not a corporate entity qualifies as a state actor: “only if (1) the government created the corporate entity by special law, (2) the government created the entity to further governmental objectives, and (3) the government retains ‘permanent authority to appoint a majority the directors of the corporation’ will the corporation be deemed a government entity for the purpose of the state action requirement.” Hack v. President & Fellows of Yale Coll., 237 F.3d 81, 84 (2d Cir.2000) (quoting Lebron, 513 U.S. at 400, 115 S.Ct. 961). In Hack, we considered whether Yale qualified as a state actor. Although we found that the first two elements of the Lebrón standard were “easily satisfied,” the fact that the State of Connecticut retained the right to appoint only two of Yale’s nineteen board members meant that the school was “a long way from [being] controlled]” by the state. Id.; see also Hall v. American Nat’l Red Cross, 86 F.3d 919, 921-22 (9th Cir.1996) (holding that the Red Cross was not a state actor where only eight of fifty members of its governing board were government appointees). Here we believe that the Lebrón standard has been satisfied. It is plain that the first two elements are present; as noted above, the Library was created by a special act of the Connecticut State legislature and there is no doubt that the provision of library services is a legitimate statutory objective. As to the third element, it is correct that only one-half, and not a majority, of the Library’s trustees are appointed by the Town. However, we do not believe that this precludes a finding that the third element of Lebrón has been satisfied. See, e.g., Gorman-Bakos v. Cornell"
},
{
"docid": "19356578",
"title": "",
"text": "the regulated entity in the name of the regulated entity which are consistent with the appointment as conservator or receiver; (iv) preserve and conserve the assets and property of the regulated entity; and (v) provide by contract for assistance in fulfilling any function, activity, action, or duty of the Agency as conservator or receiver. 12 U.S.C. § 4617(b)(2)(B). Fannie Mae argues it is not a government actor for purposes of Plaintiffs constitutional claim, despite the conservator-ship. In Lebron v. National Railroad Passenger Corp., the Supreme Court defined what type of entity constitutes a federal actor for the purpose of a constitutional claim. The threshold question is whether a federal actor was involved, as purely private action does not trigger constitutional protection. A corporation is part of the federal government when Congress creates the entity “by special law, for the furtherance of governmental objectives, and retainfs] for itself permanent authority to appoint a majority of the directors of that corporation.” Lebron, 513 U.S. at 400, 115 S.Ct. 961. The Supreme Court determined in Lebrón that Amtrak was a federal entity, created by statute for a government purpose and controlled entirely by the United States. Amtrak’s board of directors consisted of nine members: the Secretary of Transportation, five appointed by the President, Amtrak’s president (appointed by the Board), and two elected by the holders of preferred stock (all of which was owned by the United States). Id. at 385, 115 S.Ct. 961. Lebrón focused on whether the government maintained permanent control over Amtrak. Id. at 385,115 S.Ct. 961. Fannie Mae argues that, prior to the conservatorship, it was not under governmental control and the conservatorship did not change anything. It also argues that, even if it were under government control during the conservatorship, that control is inherently temporary. Several federal district courts have come to this conclusion with respect to Fannie Mae. For example, in Parra v. Federal Nat’l Mortgage Ass’n, the district court explained that a plaintiff could not maintain a 42 U.S.C. § 1983 claim for violation of due process rights against Fannie Mae because it is not a “state"
},
{
"docid": "5631565",
"title": "",
"text": "to the Connecticut legislature. Finally, they argue that the presence of the Governor and Lieutenant Governor, as ex officio members of the nineteen-member “Fellows of Yale College” governing board, provides further support for the conclusion that Yale is a governmental entity. In Lebrón, the Supreme Court determined that Amtrak was a governmental entity: We hold that where, as here, the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment. Id. at 400, 115 S.Ct. 961. In the wake of Lebrón, other courts have concluded that the Court set forth a three-prong stan- Plaintiffs contend that a three-prong test, with one prong requiring “majority” governmental control, is an overly simplistic reading of Lebrón. They argue that the two highest executive officers of the state are likely to be far more influential than other members, that they carry with them the aura of official action, and that their participation is at least as significant as the Presidential power to appoint a majority of Amtrak board members from specific lists of recommended private sector nominees. We disagree. We think Lebrón means what it says. Indeed, the Court there contrasted Com-sat with Amtrak, noting that the President appointed only three of fifteen Comsat directors, 513 U.S. at 391, 115 S.Ct. 961, and describing it as a private corporation not government-controlled, id. at 397, 115 S.Ct. 961. Moreover, the Court has indicated its reluctance to have the federal courts indulge in evaluations of the effectiveness of governmental persuasion, absent government control. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 545-546 n. 27, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987). Plaintiffs do not suggest that Connecticut had any involvement in establishing Yale’s parietal rules. It is equally clear that the state could not control Yale’s policies and operations even if it chose to become involved. Yale, as a private university, did not act under color of"
},
{
"docid": "8694616",
"title": "",
"text": "board was government speech, not a public forum supporting private speech, the school district was not required to be viewpoint neutral. The Constitution did not require the school district to allow the teacher to maintain his own bulletin board. Downs is directly on point. The school district required that the materials posted on the bulletin boards transmitted a particular government message: tolerance for gays and lesbians. Congress was equally unambiguous when it limited the use of beef checkoff funds to the promotion of beef. In Downs, the school principals maintained authority over the contents of the bulletin boards, but materials did not need to be approved before being posted. Id. at 1006. Therefore, the principals were less involved in generating gay and lesbian tolerant speech than the Secretary is involved in generating beef advertising. The checkoff-funded program allows the private cattlemen who comprise the Beef Board to generate the promotion and research. That fact notwithstanding, the Secretary has the final authority to approve or reject the contents of a Beef Board project. LMA Trans, at 141-42. The Secretary exercises pervasive surveillance and authority over the Beef Board. Frame, 885 F.2d at 1128. The Secretary appoints members of the Beef Board. 7 U.S.C. § 2904(1); 7 C.F.R. § 1260.141(b). He also retains the power to remove members from the Beef Board. 7 C.F.R. §§ 126.211(b)(1), 213. The Beef Board is required to give notice of its meetings to the Secretary, so that the Secretary or a representative may attend the meetings. 7 C.F.R. §§ 1260.150(m). A USDA representative does, in fact, attend every Beef Board, Operating Committee, and Executive Committee meeting. LMA Trans, at 205, 215. The Beef Board is required to submit to the Secretary for each fiscal period an audit of its activities. 7 C.F.R. 1260.150(a). All budgets, plans, projects, and contracts approved by the Beef Board become effective only upon approval by the Secretary. 7 U.S.C. § 2904(4)(C), (6)(A), (6)(B); 7 C.F.R. §§ 1260.150(f), (g); 7 C.F.R. § 1260.168(e), (f). If the Secretary determines that a checkoff-funded project does not serve the purpose of the Act, he denies"
},
{
"docid": "3834398",
"title": "",
"text": "therefrom in favor of plaintiffs. Square D. Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 411, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986). B. Government Action 1. All-purpose Federal Actor The question of whether a government corporation is an “all-purpose” government actor is controlled by Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). In Lebrón, the Supreme Court considered whether Amtrak is an instrumentality of the United States for First Amendment purposes. The statute creating Amtrak designated the railroad to be a private corporation. Nevertheless, the Court determined that Amtrak was “established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees. It is in that respect no different from the so-called independent regulatory agencies.. .which are run by presidential appointees with fixed terms.” Id. at 398, 115 S.Ct. 961. The Lebrón Court proceeded to hold that where “the Government creates a corporation by special law, for furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for the purposes of the First Amendment.” Id. at 400, 115 S.Ct. 961. Several courts have read the Lebrón holding as creating a three-part test for determining when a government-created corporation is “Government itself.” See Hall v. American Nat’l Red Cross, 86 F.3d 919, 922 (9th Cir.1996); Hack v. President and Fellows of Yale College, 16 F.Supp.2d 183, 188 (D.Conn.1998); Abu-Jamal v. National Public Radio, No. 96-0594, 1997 WL 527349 (D.D.C. Aug.21, 1997). Under this interpretation, private corporations are government actors when the corporation is (1) created by the government by a special law; (2) for the furtherance of governmental objectives; (3) where the government retains for itself permanent authority to appoint a majority of the board of directors. See, e.g., Hack, 16 F.Supp.2d at 188. Although defendants challenge this interpretation, at least one district judge in this Circuit has adopted this reading of Lebrón. See Abu-Jamal, 1997 WL 527349 (D.D.C. Aug.21, 1997)."
}
]
|
823747 | part of Cyanamid render the section inapplicable. The rationale here is if the patentee applied for the patent with the deceptive intent of omitting an inventor, the patent is invalidated and cannot be corrected. See General Elec. Co. v. Brandon, 25 U.S.P.Q.2d 1885, 1887, 1992 WL 394933 (N.D.N.Y.1992). Cyanamid acknowledges neither the Supreme Court nor the Federal Circuit has squarely addressed whether the words “without deceptive intent” in § 256 refer to the patentee, the omitted inventor, or both. Nevertheless, Cyanamid argues case law from the district courts supports the position that § 256 is inapplicable where a plaintiff alleges the defendant/patentee acted with deceptive intention when it failed to identify a true inventor. Cyanamid relies on the recent decision of REDACTED There, plaintiff, alleging his former employer wrongfully procured a patent on plaintiffs invention, sought correction of inventor-ship under § 256. In initially dismissing the action, the district court held plaintiffs § 256 claim deficient because that section 1) did not permit a complete substitution of one inventor for another; and 2) is not applicable where the error is a result of fraud on the part of the patentee. Id. at 918-20. On a motion for reconsideration, the court recognized the 1982 amendments to § 256 permit the substitution of the name of the erroneously named patentee with that of the innocent inventor. However, the court held the 1982 amendments “did not overturn prior (and subsequent) authority which | [
{
"docid": "16729284",
"title": "",
"text": "case because it has been dismissed as a matter of law. Plaintiffs request must be denied. Accordingly, plaintiffs motion to reconsider pursuant to Rule 59(e) is denied, NOW THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT: Plaintiffs motion to reconsider and vacate judgment is DENIED. SO ORDERED, . As a general rule, this Court does not believe it wise to employ legislative history. However, when, as here, it comports with the plain language of the statute, it is difficult to ignore. That being said, H.R. Report No. 1923, 82 Congress, 2d Sess. (1952) provides, \"This provision permits a bona fide mistake in joining a person as inventor to be corrected.” . General Electric Co. v. Brandon, 25 U.S.P.Q.2d 1885, 1887 n. 1 & n. 3, 1992 WL 394933 (N.D.N.Y.1992) distinguishes Bemis and Rawl-plug infra and notes that § 256 was amended subsequent to those decisions. But the amended § 256 does not alter the central holding of Bemis and its progeny, i.e., that § 256 is intended to correct \"innocent errors”. As stated in Brandon: \"[A]t a minimum there must be a lack of deceptive intention on the part of the person originally named as the inventor.” Id. at 1887. In Brandon, as in the case at bar, the plaintiff alleged wrongful and deceptive conduct by the defendant. . The repeated references to the \"liberal” or \"remedial\" nature of § 256 support this Court’s interpretation that only \"innocent” errors be corrected. For example, the language of the statute requires the \"application of all parties.” It is unlikely, to say the least, that a party who has engaged in fraud or deception would join in such an application. The \"liberal” quality of the section derives from the fact that \"innocent” errors should be easily and readily correctable on joint application. Not so where the parties are at each others' throats. Further, pursuant to § 256, the court may \"order correction of the patent.” Should the plaintiff demonstrate fraud, the patent would be per se invalid. Even the most \"liberal” reading of § 256 can not turn the power to"
}
]
| [
{
"docid": "4822853",
"title": "",
"text": "clock accordingly cannot begin to run prior to issuance. Here, because Hor and Meng filed suit within six years of the issuance of the '866 and '418 patents, they contend that a presumption of laches should not apply. Chu, in contrast, maintains that the laches period can begin pre-patent issuance, where, as here, the purported inventors knew or should have known of the potential inventorship dispute before the patent issued. We agree with Hor and Meng. Section 256 creates a private cause of action to correct inventorship in an issued patent: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly. 35 U.S.C. § 256 (2006) (emphasis added). In Aukerman, this court applied the six-year presumption of laches to a patentee’s claim of infringement, holding that the laches clock did not start to run — at the earliest — until the patent issued: The period of delay is measured from the time the plaintiff knew or reasonably should have known of the defendant’s alleged infringing activities to the date of suit. However, the period does not begin prior to issuance of the patent. 960 F.2d at 1032 (emphases added). Advanced Cardiovascular adopted Aukerman’s six-year laches presumption for § 256 correction of inventorship claims and held that the laches period began when “the omitted inventor knew or should have known of the issuance of the patent.” 988 F.2d at 1163."
},
{
"docid": "16729280",
"title": "",
"text": "ANALYSIS Consideration of a motion to alter or amend under Rule 59(e) is left to the sound discretion of the trial court. Leigh v. Engle, 723 F.Supp. 1272 (N.D.Ill.1989). A Rule 59(e) motion may not be used to re-litigate matters already disposed of by the trial court. In re Oil Spill by Amoco Cadiz, 794 F.Supp. 261 (N.D.Ill.1992); United States v. Western Electric Co., 690 F.Supp. 22 (D.D.C.1988).- Instead, reconsideration under Rule 59(e) is permitted in three limited situations: (1) there has been an intervening change in controlling law; (2) there exists new evidence previously unavailable; or (3) clear errors of law require correction or manifest injustice must be prevented. Deutsch v. Burlington Northern R. Co., 983 F.2d 741 (7th Cir.1992) cert. denied, — U.S. -, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993). The Court dismissed plaintiffs federal claim, brought pursuant to 35 U.S.C. § 256, after determining that § 256 was limited to the correction of “innocent errors” and did not permit the substitution of the fraudulently named inventor with that of the innocent inventor. (Decision and Order at 5). Contrary to the plaintiffs argument on reconsideration, the focus of the Court’s ruling was not that § 256 permitted correction only in situations of misjoinder or non-joinder of co-inventors. Instead, the Court focused on a plain reading of the statute which permits a court to “order correction” of an “error.” Therefore, as the Court noted in footnote 2, the 1982 amendments which have been interpreted to permit the substitution of the erroneously named person with the innocent sole inventor, did not overturn prior (and subsequent) authority which uniformly holds that § 256 does not permit “correction” where the named person is accused of deception or fraud. None of the cases cited by the plaintiff are contrary to this ruling. Plaintiffs reliance on In re Bennett, 766 F.2d 524 (Fed.Cir.1985) is misplaced. That case simply acknowledges that, after the 1982 amendments, § 256 has been interpreted to permit the substitution of one true inventor for the named inventor. Id. at 528. But as discussed above, this was not the basis"
},
{
"docid": "23003046",
"title": "",
"text": "facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. This section is a savings provision. If a patentee demonstrates that inventorship can be corrected as provided for in section 256, a district court must order correction of the patent, thus saving it from being rendered invalid. When a party asserts invalidity under § 102(f) due- to nonjoinder, a district court should first determine whether there exists clear and convincing proof that the alleged unnamed inventor was in fact a co-inventor. Upon such a finding of incorrect inventorship, a patentee may invoke section 256 to save the patent from invalidity. Accordingly, the patentee must then be given an opportunity to correct inventorship pursuant to that-section. Nonjoinder may be corrected “on notice and hearing of all parties concerned” and upon a showing that the error occurred without any deceptive intent on the part of the unnamed inventor. 35 U.S.C. § 256; see Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1555, 43 U.S.P.Q.2d 1321, 1324 (Fed.Cir.1997) (“[T]he section allows addition of an unnamed actual inventor, but this error of nonjoinder cannot betray any deceptive intent by that inventor.”); see also P.J. Federico, Commentary on the New Patent Act, 35 U.S.C.A. 1, 50 (1954), reprinted in 75 J. Pat. & Trademark Off. Soc’y 163, 211 (1993) (“[Nonjoinder of joint inventors shall not invalidate a patent if the mistake is one that can be corrected under the [sic., this] section, that is, arose by error and without deceptive intention, and gives a court authority to order correction.”). Finally, a patent with improper inventorship does not avoid invalidation simply because it might be corrected under section 256. Rather, the patentee must claim entitlement to relief"
},
{
"docid": "14990187",
"title": "",
"text": "through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Commissioner may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. 35 U.S.C. § 256 (1984). Defendants’ argue that Section 256 should not be interpreted to create an independent private right of action to correct sole inventorship in the absence of litigation involving the validity or infringement of the patent in question. Plaintiff argues that Section 256 does, indeed, allow correction of patents by the substitution of the true sole inventor for the named sole inven tor. Because this specific issue has not been addressed by many courts, the parties’ base their positions primarily on their differing interpretations of Dee v. Aukerman, 625 F.Supp. 1427 (S.D.Ohio 1986). The court in Dee found that 35 U.S.C. § 256 can be interpreted to confer original jurisdiction for adjudication of a joint in-ventorship dispute. 625 F.Supp at 1429. The court also cited with approval the finding of the Ninth Circuit Court of Appeals, which, in addition to holding that Section 256 can be used to correct joint inventor-ship disputes, held that Section 256 cannot be used to substitute one sole inventor for another. Id. at 1428. The Ninth Circuit, in Bemis v. Chevron Research Co., 599 F.2d 910 (9th Cir.1979), specifically found: The Congressional committee report on § 256 clearly demonstrates that the statute remedies only innocent errors in join-der or non-joinder of inventors. 599 F.2d at 912. Similarly, the district court in Rival"
},
{
"docid": "23003047",
"title": "",
"text": "given an opportunity to correct inventorship pursuant to that-section. Nonjoinder may be corrected “on notice and hearing of all parties concerned” and upon a showing that the error occurred without any deceptive intent on the part of the unnamed inventor. 35 U.S.C. § 256; see Stark v. Advanced Magnetics, Inc., 119 F.3d 1551, 1555, 43 U.S.P.Q.2d 1321, 1324 (Fed.Cir.1997) (“[T]he section allows addition of an unnamed actual inventor, but this error of nonjoinder cannot betray any deceptive intent by that inventor.”); see also P.J. Federico, Commentary on the New Patent Act, 35 U.S.C.A. 1, 50 (1954), reprinted in 75 J. Pat. & Trademark Off. Soc’y 163, 211 (1993) (“[Nonjoinder of joint inventors shall not invalidate a patent if the mistake is one that can be corrected under the [sic., this] section, that is, arose by error and without deceptive intention, and gives a court authority to order correction.”). Finally, a patent with improper inventorship does not avoid invalidation simply because it might be corrected under section 256. Rather, the patentee must claim entitlement to relief under the statute and the court must give the patentee an opportunity to correct the inventorship. If the inventorship is successfully corrected, section 102(f) will not render the patent invalid. On the other hand, if the patentee does not claim relief under the statute and a party asserting inval idity proves incorrect inventorship, the court should hold the patent invalid for failure to comply with section 102(f). Applying this statutory framework to the present appeal, we conclude that the district court erred by granting JMOL in favor of Pannu because there exists sufficient evidence for a reasonable jury to find that Link was an actual inventor. Pannu has conceded that he and Link discussed the invention and that Link contributed the idea of one-piece construction for the lens. “Inventors may apply for a patent jointly even though (1) they did not physically work together or at the same time, (2) each did not make the same type or amount of contribution, or (3) each did not make a contribution to the subject matter of every"
},
{
"docid": "2025724",
"title": "",
"text": "Bemis v. Chevron Research Co., 599 F.2d 910, 203 U.S.P.Q. 123 (9th Cir.1979); University of Colo. Found. Inc. v. American Cyanamid, 880 F.Supp. 1387, 35 U.S.P.Q.2d 1737 (D.Colo.1995). As noted above, the language of the statute itself directs courts to correct under standards “provided in this section.” B. AMI urges that this court has held previously that section 256 provides a remedy only in the case of a “bona fide mistake in inventorship.” Stark, 29 F.3d at 1573. This court’s statement, however, referred generally to the section’s purpose, without precluding its application in instances of deliberate nonjoinder of an inventor. In the earlier appeal involving these same patents, this court stated: “The purpose of section 256 was to provide a remedy for a bona fide mistake in inventorship.” Id. at 1573 (citations omitted). From that general proposition, this court determined that diligence is not a requirement to correct inventorship under section 256. Id. at 1576-77. More importantly for this appeal, this court remanded “for determination of the merits of the asserted inventorship claims.” Id. at 1577. Thus, the reference to the purpose of the section did not resolve the issue remanded to the district court and now before this court on interlocutory appeal. Without binding precedent on the meaning of the terms “error” and “without any deceptive intention on his part,” this court consults again the statutory language. As noted, section 256 permits the Commissioner and federal courts to correct erroneous listing of inventors in an issued patent. In the event of nonjoinder of an inventor, this error must occur “without any deceptive intention on his part.” The clause “on his part” refers to the antecedent “inventor,” meaning that the omitted inventor must not have engaged in any deception related to the nonjoinder. Read together, the separate misjoinder and nonjoinder clauses of section 256 enlighten the meaning of the term “error.” The misjoinder clause does not contain the “without any deceptive intention” language. If the term “error” referred only to honest mistakes, the statute would have no need to add the “without deceptive intention” requirement in the nonjoinder clause. An"
},
{
"docid": "3315330",
"title": "",
"text": "persons was not in fact a joint inventor, and that he was included as a joint inventor by error and without any deceptive intention, the Commissioner may . .issue a certificate deleting the erroneously joined person from the patent. Whenever a patent is issued and it appears that a person was a joint inventor, but was omitted by error and without deceptive intention on his part, the Commissioner may . . . issue a certificate adding his name to the patent as a joint inventor. From a close reading of the statute, as well as the legislative history and the case law construing it, the inevitable conclusion is that § 256 is inapplicable, on the facts of this ease, to secure to the appellant the relief he requests. Section 256, though remedial in character, is limited in effect and cannot properly be the vehicle for substituting inventors on a patent in a claim sounding in conspiracy and fraud. The Congressional committee report on § 256 clearly demonstrates that the statute remedies only innocent errors in joinder or non-joinder of inventors: Section 256 is a new section in the law that is correlated with Section 116 and relates to a mistake in joining a person as a joint inventor. Very often two or three people make an invention together. They must apply as joint inventors. If they make a mistake in determining who are the true inventors, they do so at their peril. This provision permits a bona fide mistake in joining a person as inventor to be corrected. H.R. Report No. 1923, 82d Congress, 2d Sess. (1952) The Commentary on the New Patent Act, which precedes the text of Title 35 in United States Code Annotated, explains that, while § 256 permits the deletion of a person named in a patent as a joint inventor or the addition of a person who is in fact a joint inventor, it does not reach to the substitution of one sole inventor for another. . It would not be possible under this section to change a patent which was issued with A as"
},
{
"docid": "18872383",
"title": "",
"text": "inappropriate ground); Wells Cargo, Inc. v. Wells Cargo, Inc., 606 F.2d 961, 964 n. 4 (C.C.P.A.1979) (same). As the Federal Circuit would have obviated the need for further proceedings had it considered the argument of Advanced to be a valid alternative ground for upholding a grant of summary judgment, this Court must decline to revisit, at this stage of the litigation, the deceptive intention issue. The mandate rule thus bars the Court from revisiting the argument, previously rejected in this litigation, that Stark removed himself from the remedial scope of section 256 by alleging deceptive intention on the part of Advanced. Accordingly, this Court follows the Federal Circuit’s mandate and denies the motion of Advanced for partial summary judgment. B. Section 256 Advanced contends that correction of inventorship under section 256 requires lack of deceptive intention on the part of initial applicants (here, Advanced), and possibly the omitted inventor as well. Stark, on the other hand, argues that only the actual inventor need be innocent of deceptive intention. Although, as explained above, this Court is bound to allow Stark to proceed to trial and to argue his case under section 256, the Court rejects the interpretation of this provision advanced by Stark and holds that, unless Stark make a prior election, the jury will have to decide which of the mutually exclusive claims it wishes to pursue to verdict. This section sets out the reasoning for the Court’s approach. 1. Judicial Decisions — District court decisions interpreting section 256 uniformly require lack of deceptive intention on the part of the person originally named in a patent as a prerequisite for correction of inventorship. See University of Colorado Foundation, Inc. v. American Cyanamid, 880 F.Supp. 1387, 1399 (D.Colo., 1995) (section 256 inapplicable where plaintiffs seek correction based on alleged fraud and deception of defendant); McMurray v. Harwood, 870 F.Supp. 917, 919-20 (E.D.Wis.1994) (section 256 limited to correction of innocent errors and does not permit the replacement of fraudulently named inventor with that of the innocent inventor); General Elec. Co. v. Brandon, 25 U.S.P.Q.2d 1885, 1887, 1992 WL 394933 (N.D.N.Y.1992) (at a"
},
{
"docid": "18872377",
"title": "",
"text": "opposing brief, the defendants-appellees advanced both of the arguments raised below in this Court, despite the fact that in granting summary judgment this Court had relied only on the second argument. On July 1, 1994, the Federal Circuit vacated the judgment of this Court, holding that the statute does not require that the alleged inventor exercise diligence in bringing legal action to correct a patent that has already issued. See Stark v. Advanced Magnetics, Inc., 29 F.3d 1570 (Fed.Cir.1994) (“Stark I ”). Like this Court, the Federal Circuit did not address Advanced’s alternative argument. Instead, “[t]he cause [was] remanded for determination of the merits of the asserted inventor-ship claims.” Id. at 1577. The matter is again before this Court, this time on the motion of Advanced for partial summary judgment on the ground it has raised from the outset but which neither this Court nor the Federal Circuit has ever directly addressed, viz. that Stark’s allegations of fraud preclude relief under section 256. III. DISCUSSION The patent statute requires that a patent application be filed in the name of the inventors or inventor, see 35 U.S.C.A. §§ 111, 115, 116 (West 1984 & Supp.1993), and permits the patent to be amended where an inventor’s name was mistakenly added or left out of the original application. Section 116 authorizes correction of inventorship in pending applications, and section 256 applies to issued patents. Section 256 states: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Commissioner may, on application of all parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice"
},
{
"docid": "2025731",
"title": "",
"text": "reading of the statute is not likely to allow an avowedly deceptive inventive entity to correct a misjoinder without any penalty for its deception. This hypothetical situation would call on the Commissioner or a court to determine whether the listed inventive entity committed inequitable conduct in filing a false oath. See 35 U.S.C. § 115 (requiring that an applicant for a patent “shall make oath that he believes himself to be the original and first inventor”); Burroughs Wellcome Co. v. Barr Lab., Inc., 40 F.3d 1223, 1227, 32 U.S.P.Q.2d 1915, 1918 (Fed.Cir.1994) (patent may be unenforceable for inequitable conduct when any co-inventors are omitted with deceptive intent). The standards for inequitable conduct are not likely to permit enforcement of any patent procured by deceiving the United States Patent and Trademark Office (PTO). See, e.g., Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, Inc., 45 F.3d 1550, 1556-57, 33 U.S.P.Q.2d 1496, 1500 (Fed.Cir.1995). The PTO’s rules implementing section 256 also read the section in conjunction with rules governing inequitable conduct. Specifically, the PTO rule states: Whenever a patent is issued and it appears that the correct inventor or inventors were not named through error without deceptive intention on the part of the actual inventor or inventors, the Commissioner may ... issue a certificate naming only the actual inventor or inventors. 37 C.F.R. § 1.324 (1996). The PTO rule considers the deceptive intent of all actual inventors. While this approach exceeds the literal scope of section 256, it reaches the result of reading section 256 in conjunction with inequitable conduct standards. See also 1 Donald S. Chisum, Patents § 2.04[4][c] (“As between the named and omitted inventors, it would seem most logical to focus on the intentions of the true inventors, that is, the inventorship entity as it is sought to be corrected.”). Returning again to this case, Stark seeks to escape the taint of his alleged co-inventor’s purported misconduct. Stark insists, that where his co-inventors have acted inequitably, the patent should be unenforceable only to the inventors who acted with deceptive intent. 37 C.F.R. § 1.56 (1996) precludes persons guilty of"
},
{
"docid": "18872386",
"title": "",
"text": "Elec., 25 U.S.P.Q.2d at 1887 (deceptive intention language was not changed in the amendment) (citing Rival Mfg. Co. v. Dazey Prod. Co., 358 F.Supp. 91, 101-102 [WD.Mo.1973]). Both the University of Colorado and the McMurray decisions considered — and rejected — the notion that the decision of the Federal Circuit in Stark I spoke to the “without deceptive intent” requirement of section 256. University of Colorado, 880 F.Supp. at 1399; McMurray, 870 F.Supp. at 921. This Court disagrees due to its familiarity with the arguments advanced in the underlying litigation. Nevertheless, for the purposes of this discussion, the Court adopts the remark in University of Colorado that “neither the Supreme Court nor the Federal Circuit has squarely addressed whether the words ‘without deceptive intent’ in § 256 refer to the patentee, the omitted inventor, or both.” 870 F.Supp. at 1398. There is, therefore, no controlling authority, although the distinguished district courts that have considered the matter uniformly reject the cause of action sought to be asserted here. Thus, this Court considers the language of the statute in light of the purposes the statute was intended to serve. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979). 2. Statutory Construction — Section 256 applies “[w]henever through error ... an inventor is not named in an issued patent.” This language clearly indicates that the person omitting the inventor (i.e., the applicant) must have made a mistake. The section also says, however, that amendment is possible where “an inventor is not named in an issued patent and such error arose without any deceptive intention on his part.” This language strongly suggests that the actual inventor also needs to lack deceptive intention. Thus, this Court interprets the statute as requiring that both the applicant (here, Advanced) and the actual inventor (here, Stark) must have made an honest mistake and must be innocent of fraud. Stark, however, — relying on the statute’s legislative history — argues that section 256 requires only the absence of deceptive intent on the part of the actual inventor (here, Stark),"
},
{
"docid": "16729283",
"title": "",
"text": "Federal Circuit concluded that § 1.324 did not contain the “diligence requirement” found in § 1.48. Id. at 1574. While the plaintiff in Stark alleged that he was “deliberately misled,” the Federal Circuit never examined whether § 256 recognized such a claim because it revei’sed on the ground stated above. While plaintiff interprets this to mean that the Federal Circuit might recognize a § 256 claim based on fraud or deception, plaintiff has presented no authority contrary to this Court’s interpretation. Accordingly, none of the cited cases present a basis for the Court to reconsider its prior Decision and Order. Finally, plaintiff requests permission to proceed with alternative theories under § 256. Specifically, plaintiff seeks to present to the “fact-finder” the alternative theory that Harwood “inadvertently mistook himself to be the inventor.” (reply at 7, n. 6). Such a claim is so contrary to plaintiffs’ original § 256 claim (and each state theory) that it can hardly be deemed “alternative.” Further, plaintiffs § 256 fraud claim would not be presented to the jury in any case because it has been dismissed as a matter of law. Plaintiffs request must be denied. Accordingly, plaintiffs motion to reconsider pursuant to Rule 59(e) is denied, NOW THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT: Plaintiffs motion to reconsider and vacate judgment is DENIED. SO ORDERED, . As a general rule, this Court does not believe it wise to employ legislative history. However, when, as here, it comports with the plain language of the statute, it is difficult to ignore. That being said, H.R. Report No. 1923, 82 Congress, 2d Sess. (1952) provides, \"This provision permits a bona fide mistake in joining a person as inventor to be corrected.” . General Electric Co. v. Brandon, 25 U.S.P.Q.2d 1885, 1887 n. 1 & n. 3, 1992 WL 394933 (N.D.N.Y.1992) distinguishes Bemis and Rawl-plug infra and notes that § 256 was amended subsequent to those decisions. But the amended § 256 does not alter the central holding of Bemis and its progeny, i.e., that § 256 is intended to correct \"innocent errors”. As stated"
},
{
"docid": "21559114",
"title": "",
"text": "to correct inventorship of a patent involved in an interference shall comply with the requirements of this section and shall be accompanied by a motion under § 1.634. Section 1.324, unlike § 1.48, contains no diligence requirement. This difference is conspicuous, and it must be deemed to be material. AMI refers to Rival Manufacturing Co. v. Dazey Products Co., 358 F.Supp. 91, 177 USPQ 432 (W.D.Mo.1973), and Crainich v. Feinstein, No. 91 C 4045, 1991 WL 259448 (N.D.Ill. December 3, 1991) in support of a diligence requirement for actions to correct inventorship of an issued patent. Although these district court cases are not of prece-dential value, we point out that their statements that § 256 requires diligence, as a matter of law, goes beyond the statute and implementing regulation. In Rival v. Dazey the error in inventorship was discovered by the assignee and made known to the assignee’s patent attorney while the application was still pending, but those involved made no move to correct it until two years later, after the patent had issued and been sold to another. The district court found that the error in inventorship was not inadvertent; that it was inexcusable and deliberate; that it was a fraud upon the Patent Office; that the inventorship was uncorrectable because the statute at that time did not permit substitution of one inventive entity for another; that there was lack of diligence by all concerned; and that there was deceptive intent based on concealment of the correct inventors. This case, on its particular facts, does not guide decision of the case at bar. In Crainich v. Feinstein the omitted inventor knew that he was omitted from a pending patent application, communicated with the patentee without raising inventor-ship rights, and made no objection until five years later when he sought judicial correction of the issued patent under 35 U.S.C. § 256. The court found estoppel, in view of detrimental reliance by and prejudice to the other party. Citing Rival v. Dazey, the district court stated that there was a diligence requirement in § 256, thus continuing the unwarranted reading of"
},
{
"docid": "18872385",
"title": "",
"text": "minimum there must be a lack of deceptive intention on the part of the person named as the inventor); Rodgard Corp. v. Miner Enter., Inc., No. Civ.-84397E, 1990 WL 159048, at *2 (W.D.N.Y. Oct. 17, 1990) (improper to correct patent where alleged failure to name proper inventor is asserted as intentional); Dee v. Aukemum, 625 F.Supp. 1427, 1430 (S.D.Ohio 1986) (section 256 limited to omission or mistake due to inadvertent error). The district courts in McMurray and General Electric relied upon decisions that antedated the 1982 amendment to section 256, reasoning that the deceptive intention requirement was not changed. McMurray, 870 F.Supp. at 919 & n. 2 (amendment did not overturn prior [and subsequent] authority which uniformly holds that § 256 does not permit correction where the named person is accused of deception or fraud) (citing Bemis v. Chevron Research Co., 599 F.2d 910, 912 [9th Cir.], cert. denied, 444 U.S. 966, 100 S.Ct. 454, 62 L.Ed.2d 378 [1979] [per curiam ] [improper to substitute inventors on a patent sounding in conspiracy and fraud]); General Elec., 25 U.S.P.Q.2d at 1887 (deceptive intention language was not changed in the amendment) (citing Rival Mfg. Co. v. Dazey Prod. Co., 358 F.Supp. 91, 101-102 [WD.Mo.1973]). Both the University of Colorado and the McMurray decisions considered — and rejected — the notion that the decision of the Federal Circuit in Stark I spoke to the “without deceptive intent” requirement of section 256. University of Colorado, 880 F.Supp. at 1399; McMurray, 870 F.Supp. at 921. This Court disagrees due to its familiarity with the arguments advanced in the underlying litigation. Nevertheless, for the purposes of this discussion, the Court adopts the remark in University of Colorado that “neither the Supreme Court nor the Federal Circuit has squarely addressed whether the words ‘without deceptive intent’ in § 256 refer to the patentee, the omitted inventor, or both.” 870 F.Supp. at 1398. There is, therefore, no controlling authority, although the distinguished district courts that have considered the matter uniformly reject the cause of action sought to be asserted here. Thus, this Court considers the language of the"
},
{
"docid": "21559115",
"title": "",
"text": "been sold to another. The district court found that the error in inventorship was not inadvertent; that it was inexcusable and deliberate; that it was a fraud upon the Patent Office; that the inventorship was uncorrectable because the statute at that time did not permit substitution of one inventive entity for another; that there was lack of diligence by all concerned; and that there was deceptive intent based on concealment of the correct inventors. This case, on its particular facts, does not guide decision of the case at bar. In Crainich v. Feinstein the omitted inventor knew that he was omitted from a pending patent application, communicated with the patentee without raising inventor-ship rights, and made no objection until five years later when he sought judicial correction of the issued patent under 35 U.S.C. § 256. The court found estoppel, in view of detrimental reliance by and prejudice to the other party. Citing Rival v. Dazey, the district court stated that there was a diligence requirement in § 256, thus continuing the unwarranted reading of the statute. The PTO Board of Interferences had referred to a judicially-imposed diligence requirement of § 256, thus incorporating the error into PTO proceedings. In Willis v. Suppa, 209 USPQ 406 (Bd.Pat.Int’f.1980) the Board held that a patentee who was party to an interference proceeding must have exercised diligence in filing a reissue application for the purpose of correcting inventorship of the patent involved in the interference. The Board cited district court decisions requiring diligence under § 256. Indeed, we agree that diligent action is required during a pending interference proceeding, where a change of inventorship can directly affect the trial and outcome of the proceeding. Such a requirement is guided by ordinary principles governing the duties of parties litigant. See Van Otteren v. Hafner, 278 F.2d 738, 126 USPQ 151 (CCPA 1960) (duty to state whether a party to an interference is a sole or joint inventorship). However, this consideration does not impart the § 1.48 diligence requirement, as a matter of law, to actions under § 1.324. In view of these holdings, none"
},
{
"docid": "2025718",
"title": "",
"text": "law claims precludes correction of inventorship under section 256. The district court granted AMI’s motion for summary judgment based on its first argument, without reaching the second question. An appeal to this court followed. In July 1994, the Federal Circuit vacated the district court’s holding and remanded “for determination of the merits of the asserted inventor-ship claims.” Stark, 29 F.3d at 1577. On remand, the district court interpreted section 256 “as requiring that both the applicant (here, [AMI]) and the actual inventor (here, Stark) must have made an honest mistake and must be innocent of fraud.” Stark, 894 F.Supp. at 559. Under this interpretation of the statute, the district court ruled that Stark’s federal law claim for correction of inventorship conflicted with his state law claims for conversion, theft of trade secrets, fraud and deceptive conduct. Because Stark’s state law claims alleged fraud on the part of the patent applicants, the district court dismissed Stark’s action for correction of the inventors on the patent. In order to maintain both causes of action, Stark then sought and received permission to file this interlocutory appeal to determine who must act without deceptive intent in order to correct inventorship under section 256. II. The sole issue in this case is the meaning of section 256. Statutory interpretation is a pure question of law, subject to complete and independent review by this court. See In re Carlson, 983 F.2d 1032, 1035, 25 U.S.P.Q.2d 1207, 1209 (Fed.Cir.1992). This court generally regards the meaning of a statute’s language “as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980); United States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116, 3121, 92 L.Edüd 483 (1986) (“When ... the terms of a statute [are] unambiguous, judicial inquiry is complete, except in rare and exceptional circumstances.”) (citations and internal quotations omitted); Johns-Manville v. United States, 855 F.2d 1556, 1559 (Fed.Cir.1988). Title 35 requires that an applicant for a patent disclose the names of all inventors. 35 U.S.C. §§ 111, 115-16 (1994). The patent statute also authorizes correction"
},
{
"docid": "3315329",
"title": "",
"text": "The district court, upon consideration of the briefs and oral argument, granted the defendants’ motion and entered a judgment of dismissal. This is an appeal from that judgment. The issue raised on appeal is whether the district court erred in its conclusion that the relief sought by the plaintiff is without basis in the statutes governing reissuance of patents and thus whether the court erred in dismissing plaintiff’s complaint for failure to state a claim. The remedy sought by appellant is a novel one. Upon his allegations that the defendants conspired to commit a fraud upon the Patent Office by wrongfully naming Hutchison as the inventor of the patent subject matter, while knowing the patent to have been invented by another, appellant seeks to substitute his name on the patent as inventor in place of Hutchison’s. The appellant has premised his right to relief on 35 U.S.C. § 256, which provides, in pertinent part, that: Whenever a patent is issued on the application of persons as joint inventors and it appears that one of such persons was not in fact a joint inventor, and that he was included as a joint inventor by error and without any deceptive intention, the Commissioner may . .issue a certificate deleting the erroneously joined person from the patent. Whenever a patent is issued and it appears that a person was a joint inventor, but was omitted by error and without deceptive intention on his part, the Commissioner may . . . issue a certificate adding his name to the patent as a joint inventor. From a close reading of the statute, as well as the legislative history and the case law construing it, the inevitable conclusion is that § 256 is inapplicable, on the facts of this ease, to secure to the appellant the relief he requests. Section 256, though remedial in character, is limited in effect and cannot properly be the vehicle for substituting inventors on a patent in a claim sounding in conspiracy and fraud. The Congressional committee report on § 256 clearly demonstrates that the statute remedies only innocent errors in"
},
{
"docid": "16729281",
"title": "",
"text": "inventor. (Decision and Order at 5). Contrary to the plaintiffs argument on reconsideration, the focus of the Court’s ruling was not that § 256 permitted correction only in situations of misjoinder or non-joinder of co-inventors. Instead, the Court focused on a plain reading of the statute which permits a court to “order correction” of an “error.” Therefore, as the Court noted in footnote 2, the 1982 amendments which have been interpreted to permit the substitution of the erroneously named person with the innocent sole inventor, did not overturn prior (and subsequent) authority which uniformly holds that § 256 does not permit “correction” where the named person is accused of deception or fraud. None of the cases cited by the plaintiff are contrary to this ruling. Plaintiffs reliance on In re Bennett, 766 F.2d 524 (Fed.Cir.1985) is misplaced. That case simply acknowledges that, after the 1982 amendments, § 256 has been interpreted to permit the substitution of one true inventor for the named inventor. Id. at 528. But as discussed above, this was not the basis for the Court’s dismissal of the § 256 claim. While the Federal Circuit made numerous references to the “remedial nature” of § 256 and that “conversion of inventorship should be liberally allowed,” it is silent on the issue at bar. Plaintiffs citation to Stark v. Advanced Magnetics, Inc., 29 F.3d 1570 (Fed.Cir.1994) is equally unavailing. While plaintiffs are correct that Stark is factually similar to the ease at bar in that a § 256 claim was joined with state claims of unjust enrichment, breach of the duty of good faith, misappropriation, etc., the Federal Circuit’s decision does not address the issue at bar. In Stark, the district court granted summary judgment to the defendant after finding that the plaintiff failed to exercise diligence in seeking correction of the patents at issue. Id. at 1573. The Federal Circuit reversed because of the distinction the Code of Federal Regulations makes between § 116 and § 256 cases. After examining 37 C.F.R. § 1.48, applicable to § 116, and 37 C.F.R. § 1.324, applicable to § 256, the"
},
{
"docid": "18872384",
"title": "",
"text": "bound to allow Stark to proceed to trial and to argue his case under section 256, the Court rejects the interpretation of this provision advanced by Stark and holds that, unless Stark make a prior election, the jury will have to decide which of the mutually exclusive claims it wishes to pursue to verdict. This section sets out the reasoning for the Court’s approach. 1. Judicial Decisions — District court decisions interpreting section 256 uniformly require lack of deceptive intention on the part of the person originally named in a patent as a prerequisite for correction of inventorship. See University of Colorado Foundation, Inc. v. American Cyanamid, 880 F.Supp. 1387, 1399 (D.Colo., 1995) (section 256 inapplicable where plaintiffs seek correction based on alleged fraud and deception of defendant); McMurray v. Harwood, 870 F.Supp. 917, 919-20 (E.D.Wis.1994) (section 256 limited to correction of innocent errors and does not permit the replacement of fraudulently named inventor with that of the innocent inventor); General Elec. Co. v. Brandon, 25 U.S.P.Q.2d 1885, 1887, 1992 WL 394933 (N.D.N.Y.1992) (at a minimum there must be a lack of deceptive intention on the part of the person named as the inventor); Rodgard Corp. v. Miner Enter., Inc., No. Civ.-84397E, 1990 WL 159048, at *2 (W.D.N.Y. Oct. 17, 1990) (improper to correct patent where alleged failure to name proper inventor is asserted as intentional); Dee v. Aukemum, 625 F.Supp. 1427, 1430 (S.D.Ohio 1986) (section 256 limited to omission or mistake due to inadvertent error). The district courts in McMurray and General Electric relied upon decisions that antedated the 1982 amendment to section 256, reasoning that the deceptive intention requirement was not changed. McMurray, 870 F.Supp. at 919 & n. 2 (amendment did not overturn prior [and subsequent] authority which uniformly holds that § 256 does not permit correction where the named person is accused of deception or fraud) (citing Bemis v. Chevron Research Co., 599 F.2d 910, 912 [9th Cir.], cert. denied, 444 U.S. 966, 100 S.Ct. 454, 62 L.Ed.2d 378 [1979] [per curiam ] [improper to substitute inventors on a patent sounding in conspiracy and fraud]); General"
},
{
"docid": "23003045",
"title": "",
"text": "committed inventor-ship errors at their peril; misjoinder or non-joinder of an inventor rendered the patent invalid. Section 256 affords the opportunity to correct the patent.”); see also S.Rep. No. 82-1979, at 7-8 (1952), reprinted in 1952 U.S.C.C.A.N. 2394, 2401-02 (“Very often two or three people make an invention together. They must apply as joint inventors. If they make a mistake in determining who are the true inventors, they do so at their peril. This provision permits a bona fide mistake in joining a person as [an] inventor or in failing to join a person as an inventor to be corrected.”); id. at 27, reprinted in 1952 U.S.C.C.A.N. 2394, 2421 (“This section is new and a companion to section 116.”). Section 256 provides that: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Commissioner may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Commissioner shall issue a certificate accordingly. This section is a savings provision. If a patentee demonstrates that inventorship can be corrected as provided for in section 256, a district court must order correction of the patent, thus saving it from being rendered invalid. When a party asserts invalidity under § 102(f) due- to nonjoinder, a district court should first determine whether there exists clear and convincing proof that the alleged unnamed inventor was in fact a co-inventor. Upon such a finding of incorrect inventorship, a patentee may invoke section 256 to save the patent from invalidity. Accordingly, the patentee must then be"
}
]
|
308539 | must be discredited on the ground that some — though not all- — of her bouts of remission appear to have resulted from Garrison going off some of her medications. As we have remarked, “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen, 100 F.3d at 1465 (quotation marks and citations omitted). In other words, we do not punish the mentally ill for occasionally going off their medication when the record affords compelling reason to view such departures from prescribed treatment as part of claimants’ underlying mental afflictions. See, e.g., Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir.2011); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir.2010); REDACTED Here, the record shows that Garrison’s occasional decisions to go “off her meds” were at least in part a result of her underlying bipolar disorder and her other psychiatric issues. . The Commissioner contends that the credit-as-true rule is invalid. As he concedes, this argument is foreclosed by precedent. On at least one occasion, in fact, we have specifically considered and rejected some of the arguments advanced anew in the Commissioner’s brief. See Moisa v. Barnhart, 367 F.3d 882, 886-87 (9th Cir.2004). . This third requirement naturally incorporates what we have sometimes described as a distinct requirement of the credit-as-true rule, namely that there are no outstanding issues that must be resolved before a determination of disability can be made. | [
{
"docid": "9869231",
"title": "",
"text": "ALJ’s decision was erroneous because: (1) the ALJ failed to give her treating physician’s opinion great or controlling weight; and (2) the ALJ incorrectly concluded she maintained the RFC to perform her past relevant work. The district court disagreed, finding “extensive and substantial evidence supporting the ALJ’s decision.” Addendum at 21. On September 28, 2007, the district court entered an order affirming the ALJ’s decision denying Pate-Fires SSI benefits. Pate-Fires timely appealed to this court. II “This court reviews de novo a district court’s denial of social security benefits.” Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir.2006). The court’s task is to determine whether the ALJ’s decision “complies with the relevant legal requirements and is supported by substantial evidence in the record as a whole.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir.2008). “Substantial evidence is ‘less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.’ ” Maresh, 438 F.3d at 898 (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). In reviewing the record, the court “must consider both evidence that supports and evidence that detracts from the Commissioner’s decision.” Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir.2007). An individual must be disabled in order to qualify for SSI under the Act and the accompanying regulations. Disability is defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A five-step test is used to determine whether an individual qualifies for SSI. 20 C.F.R. § 416.920(a)(4). Steps one through three require the claimant to prove (1) she is not currently engaging in substantial gainful activity, (2) she suffers from a severe impairment, and (3) her disability meets or equals a listed impairment. See, e.g., Van Vickle v. Astrue, 539 F.3d 825, 827 (8th Cir.2008). If a claimant does not suffer from a"
}
]
| [
{
"docid": "22397379",
"title": "",
"text": "lifting, and lying in bed most of the day, is consistent with the pain that Garrison described in her testimony. It is also consistent with an inability to function in a workplace environment. Accordingly, the supposed inconsistencies between Garrison’s daily activities and her testimony do not satisfy the requirement of a clear, convincing, and specific reason to discredit Garrison’s testimony regarding her pain-related impairments. b. Garrison’s Mental Health Testimony The ALJ discredited Garrison’s mental health testimony mainly on the ground that the record showed that Garrison’s condition had improved due. to medication at a few points between April 2007 and June 2009. The ALJ added that some of Garrison’s mental impairments were caused by Garrison going off her medication. These are not clear, convincing, and specific grounds for rejecting Garrison’s testimony that, since April 2007, she had suffered panic attacks, “a lot of ups and downs and depression,” severe anxiety, occasional suicidal thoughts, and bouts of paranoia and mania — symptoms that caused major difficulties with social functioning and responding to such stresses as shopping unaccompanied for groceries. As we have emphasized while discussing mental health issues, it is error to reject a claimant’s testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.2001) (“[The treating physician’s] statements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person’s impairments no longer seriously affect her ability to function in a workplace.”). Reports of “improvement” in the context of mental health issues must be interpreted with an understanding of the patient’s overall well-being and the nature of her symptoms. See Ryan, 528 F.3d at 1200-01"
},
{
"docid": "22397392",
"title": "",
"text": "argues that further proceedings would serve the “useful purpose” of allowing the ALJ to revisit the medical opinions and testimony that she rejected for legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a “useful purpose” under the first part of credit-as-true analysis. See Benecke, 379 F.3d at 595 (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”); Moisa, 367 F.3d at 887 (“The Commissioner, having lost this appeal, should not have another opportunity to show that Moisa is not credible any more than Moisa, had he lost, should have an opportunity for remand and further proceedings to establish his credibility.” (citation omitted)). Second, as we have already explained at length, the ALJ failed to provide a legally sufficient reason to reject Garrison’s testimony and the opinions of her treating and examining medical caretakers. We need not repeat this analysis here. Third, if the improperly discredited evidence were credited as true, it is clear that the ALJ would be required to find Garrison disabled on remand. Our conclusion follows directly from our analysis of the ALJ’s errors and the strength of the improperly discredited evidence, which we credit as true: a treating doctor, a treating nurse practitioner, and an examining psychologist all deemed Garrison to be disabled, Garrison testified to an array of severe physical and mental impairments, and a VE explicitly testified that a person with the impairments described by Garrison or her medical caretakers could not work. Accordingly, Garrison satisfies the requirements of the credit-as-true standard. Having concluded that Garrison satisfies all three parts of credit-as-true analysis, we now turn to the question whether we should nonetheless exercise “flexibility” under Connett and remand for further proceedings. Here, the answer is clearly no. The Commissioner simply repeats all of the arguments she has already made, asserting that the evidence provided by the doctors and nurse practitioner who treated Garrison"
},
{
"docid": "16741010",
"title": "",
"text": "615 F.3d 744, 749, 751 (7th Cir. 2010) (misunderstanding of mental illness; Chenery violation); McClesky v. Astrue, 606 F.3d 351, 352, 354 (7th Cir.2010) (credibility boilerplate; Chenery violation); Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir.2006) (misunderstanding of mental illness); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir.2006) (Chenery violation); Ryan v. Commissioner of Social Security, 528 F.3d 1194, 1199-1201 (9th Cir.2008) (misunderstanding of mental illness); Kohler v. Astrue, 546 F.3d 260, 268-69 (2d Cir.2008) (same); Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir.2007) (iChenery violation); Robbins v. Social Security Administration, 466 F.3d 880, 883-85 and n. 2 (9th Cir.2006) (credibility boilerplate). The administrative law judge found that the applicant in this case, David Spiva, “has the following severe combination of impairments [she probably meant to write ‘combination of severe impairments’]: mood disorder, schizophrenia, dysthymia [a form of depression with milder symptoms than major depressive disorder], psychosis, depression, alcohol and cannabis abuse, and attention deficit disorder.” Schizophrenia is a psychosis, and dysthymia a form of depression, and depression a mood disorder, so what the administrative law judge intended by adding depression, psychosis, and mood disorder to the list of Spiva’s impairments is, like much else in her opinion, unclear. She concluded that Spiva was not totally disabled, because he could perform the last job he had held, which had been at Walmart, and lots of other jobs (unspecified) as well. She said “there was reference to malingering as an issue”; Spiva had been found to be “evasive during his consultative evaluation”; there were references to his “not taking medication as prescribed”; he had admitted being “able to do simple household chores and interact ] with family members,” including “babysitting for his child while the mother worked”; and he had “moved to Milwaukee in July 2006 because the child’s mother needed help.” That’s it — and is a remarkably sparse summary of a rich record. Spiva was working at a Walmart store in Mississippi when in 2004, at the age of 28, he checked himself into a psychiatric clinic. He told William Turner, his attending physician, that he"
},
{
"docid": "22397378",
"title": "",
"text": "[her] level of activity were inconsistent with [a claimant’s] claimed limitations would these activities have any bearing on [her] credibility.” Reddick v. Chafer, 157 F.3d at 722 (citations omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012) (“The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature of opinions by administrative law judges in social security disability cases.” (citations omitted)). Here, Garrison’s daily activities, as she described them in her testimony, were consistent with her statements about the impairments caused by her pain. The ability to talk on the phone, prepare meals once or twice a day, occasionally clean one’s room, and, with significant assistance, care for one’s daughter, all while taking frequent hours-long rests, avoiding any heavy lifting, and lying in bed most of the day, is consistent with the pain that Garrison described in her testimony. It is also consistent with an inability to function in a workplace environment. Accordingly, the supposed inconsistencies between Garrison’s daily activities and her testimony do not satisfy the requirement of a clear, convincing, and specific reason to discredit Garrison’s testimony regarding her pain-related impairments. b. Garrison’s Mental Health Testimony The ALJ discredited Garrison’s mental health testimony mainly on the ground that the record showed that Garrison’s condition had improved due. to medication at a few points between April 2007 and June 2009. The ALJ added that some of Garrison’s mental impairments were caused by Garrison going off her medication. These are not clear, convincing, and specific grounds for rejecting Garrison’s testimony that, since April 2007, she had suffered panic attacks, “a lot of ups and downs and depression,” severe anxiety, occasional suicidal thoughts, and bouts of paranoia and mania — symptoms that caused major difficulties with social functioning and responding to such stresses as shopping"
},
{
"docid": "8400442",
"title": "",
"text": "review. See Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.2008). Scott faults the ALJ for crediting Dr. Rozenfeld instead of Dr. Tate regarding her mental impairments, argues that the ALJ’s credibility finding is unsupported, and disputes the ALJ’s resulting determination that her RFC allows light work. We confine our review to the rationale offered by the ALJ, Steele v. Barn-hart, 290 F.3d 936, 941 (7th Cir.2002) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95, 63 S.Ct. 454, 87 L.Ed. 626 (1943)), and evaluate whether that decision is supported by substantial evidence without deferring to the district court, O’ConnorSpinner v. Astrue, 627 F.3d 614, 618 (7th Cir.2010). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.2007) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). As to Scott’s first argument, we agree that the ALJ erroneously credited Dr. Rozenfeld’s opinion over the views of Dr. Tate in evaluating her mental impairments. A treating doctor’s opinion receives controlling weight if it is “well-supported” and “not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(d)(2); see Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir.2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.2010). An ALJ must offer “good reasons” for discounting the opinion of a treating physician. Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir.2011); Campbell, 627 F.3d at 306. Here, the reasons the ALJ gave for discounting Dr. Tate’s assessment do not meet this standard. The ALJ first relied on Dr. Rozenfeld’s conclusion that the medical record contains no evidence of manic episodes and thus cannot support a diagnosis of bipolar disorder, which, by definition, includes both manic and depressive episodes. But the record does contain evidence that could be symptomatic of manic behavior. Dr. Tate repeatedly noted that Scott sometimes stays awake for days at a time, has paranoid ideations, is easily distracted, and experiences difficulty concentrating. These symptoms are consistent with manic episodes, see Am. Psychiatric Ass’n, Diagnostic"
},
{
"docid": "22397382",
"title": "",
"text": "Rodriguez was responding to treatment also does not provide a clear and convincing reason for disregarding Dr. Pettinger’s opinion. No physician opined that any improvement would allow Rodriguez to return to work.”). These rules clarify the nature of the ALJ’s error. Rather than describe Garrison’s symptoms, course of treatment, and bouts of remission, and thereby chart a course of improvement, the ALJ improperly singled out a few periods of temporary well-being from a sustained period of impairment and relied on those instances to discredit Garrison. While ALJs obviously must rely on examples to show why they do not believe that a claimant is credible, the data points they choose must in fact constitute examples of a broader development to satisfy the applicable “clear and convincing” standard. Here, the record reveals a tortuous path: some symptoms came and went (e.g., paranoia, hallucinations, pseudo-seizures), some symptoms persisted nearly the whole period (e.g., insomnia, bouts of depression and mania), and still other symptoms appear to have remained a constant source of impairment (e.g., intense anxiety). Garrison’s diagnoses of PTSD and bipolar disorder remained constant across all treatment records, and her GAF score consistently hovered around 50 to 55. She remained in this condition even while going to great lengths to minimize stres-sors in her life — to the point that she could not go to the grocery store alone— and, when she did try to work for a brief period, was fired because of her mental impairments. The ALJ erred in concluding that a few short-lived periods of temporary improvement in Garrison’s mental health symptoms undermined Garrison’s testimony. c. Conclusion The ALJ did not offer specific, clear, and convincing reasons for rejecting Garrison’s testimony concerning her physical and mental impairments. In fact, the reasons given by the ALJ not only fail this demanding standard, but also would fail a far more forgiving inquiry, as they are plainly belied by the record and rest upon mischaracterizations of Garrison’s testimony. Ill Reviewing for abuse of discretion, see Harman, 211 F.3d at 1173, we reverse the district court’s decision to remand this case to the ALJ"
},
{
"docid": "22397402",
"title": "",
"text": "a good reason for not taking medication for her symptoms, her symptom testimony cannot be rejected for not doing so.” (citation omitted)). At no point in the treatment records did Wang or Feldman indicate a belief that physical therapy, if resumed, would provide Garrison with adequate relief. .In any event, we doubt that epidural steroid shots to the neck and lower back qualify as \"conservative” medical treatment. . It is also consistent with the mental health impairments that Garrison described in her testimony' — impairments that undoubtedly interacted with her physical impairments in a manner that makes her testimony even more credible. . See also Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001) (\"With regard to mental disorders, the Commissioner’s decision must take into account evidence indicating that the claimant’s true functional ability may be substantially less than the claimant asserts or wishes. Given the unpredictable course of mental illness, [s]ymptom-ffee intervals and brief remissions are generally of uncertain duration and marked by the impending possibility of relapse. Moreover, [(Individuals with chronic psychotic disorders commonly have their lives structured in such a way as to minimize stress and reduce their signs and symptoms. Such individuals may be much more impaired for work than their signs and symptoms would indicate.” (quotation marks and citations omitted) (alterations in the original)). . See also Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir.2011) (\"There can be a great distance between a patient who responds to treatment and one who is able to enter the workforce, and that difference is borne out in Dr. Tate’s treatment notes. Those notes show that although Scott had improved with treatment, she nevertheless continued to frequently experience bouts of crying and feelings of paranoia. The ALJ was not permitted to \"cherry-pick” from those mixed results to support a denial of benefits.... The very nature of bipolar disorder is that people with the disease experience fluctuations in their symptoms, so any single notation that a patient is feeling better or has had a ‘good day’ does not imply that the condition has been treated.” (citations omitted)) . The"
},
{
"docid": "22397391",
"title": "",
"text": "creates serious doubt that a claimant is, in fact, disabled. That interpretation best aligns the credit-as-true rule, which preserves efficiency and fairness in a process that can sometimes take years before benefits- are awarded to needy claimants, with the basic requirement that a claimant be disabled in order to receive benefits. Thus, when we conclude that a claimant is otherwise entitled to an immediate award of benefits under the credit-as-true analysis, Connett allows flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act. As we explain infra, here the district court abused its discretion by remanding for further proceedings where the credit-as-true rule is satisfied and the record afforded no reason to believe that Garrison is not, in fact, disabled. B. Application of Law to Fact Garrison unquestionably satisfies all three conditions of the credit-as-true rule. First, there is no need to develop the record or convene further administrative proceedings. Although the Commissioner argues that further proceedings would serve the “useful purpose” of allowing the ALJ to revisit the medical opinions and testimony that she rejected for legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a “useful purpose” under the first part of credit-as-true analysis. See Benecke, 379 F.3d at 595 (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”); Moisa, 367 F.3d at 887 (“The Commissioner, having lost this appeal, should not have another opportunity to show that Moisa is not credible any more than Moisa, had he lost, should have an opportunity for remand and further proceedings to establish his credibility.” (citation omitted)). Second, as we have already explained at length, the ALJ failed to provide a legally sufficient reason to reject Garrison’s testimony and the opinions of her treating and examining medical caretakers. We"
},
{
"docid": "22397393",
"title": "",
"text": "need not repeat this analysis here. Third, if the improperly discredited evidence were credited as true, it is clear that the ALJ would be required to find Garrison disabled on remand. Our conclusion follows directly from our analysis of the ALJ’s errors and the strength of the improperly discredited evidence, which we credit as true: a treating doctor, a treating nurse practitioner, and an examining psychologist all deemed Garrison to be disabled, Garrison testified to an array of severe physical and mental impairments, and a VE explicitly testified that a person with the impairments described by Garrison or her medical caretakers could not work. Accordingly, Garrison satisfies the requirements of the credit-as-true standard. Having concluded that Garrison satisfies all three parts of credit-as-true analysis, we now turn to the question whether we should nonetheless exercise “flexibility” under Connett and remand for further proceedings. Here, the answer is clearly no. The Commissioner simply repeats all of the arguments she has already made, asserting that the evidence provided by the doctors and nurse practitioner who treated Garrison should not be given much weight and that Garrison’s testimony should not be accepted. As before, she dwells on the bare handful of records showing slight improvement in Garrison’s condition. At no point does she advance any argument against this evidence that we have not already carefully considered and rejected. Nor does she point to anything in the record that the ALJ overlooked and explain how that evidence casts into serious doubt Garrison’s claim to be disabled. We have independently reviewed the entire record and also have found nothing that would create doubt as to Garrison’s entitlement to the benefits she seeks. The record reflects that, since April 2007, Garrison has been afflicted with a number of severe impairments, including burning back pain that radiates into her legs, sharp neck pain that radiates into her shoulders and arms, intense anxiety and panic attacks, bipolar disorder, PTSD, and bouts of hallucinations, paranoia, and social phobia. Even if some of these symptoms have occasionally abated for brief periods of time — all while Garrison is in ongoing"
},
{
"docid": "22397401",
"title": "",
"text": "ALJ thought that Garrison's reports to Wang were not credible; Wang never indicated his belief that Garrison was exaggerating or lying in her self-reported pain symptoms. Cf. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.2008). . With respect to both Wang and Anderson's opinions, the Commissioner suggests that the ALJ was entitled to reject their opinions on the ground that they were reflected in mere check-box forms- — e.g., Wang's 2008 PFC Questionnaire and Anderson’s 2008 and 2009 Assessments. This argument rests on a mistaken factual premise. The check-box forms did not stand alone: they reflected and were entirely consistent with the hundreds of pages of treatment notes created by Wang and Anderson in the course of their relationship with Garrison. . The government’s suggestion that we should apply a lesser standard than “clear and convincing” lacks any support in precedent and must be rejected. . Garrison was forced to discontinue physical therapy early in 2007 because she could not afford it. See Smolen, 80 F.3d at 1284 (\"Where a claimant provides evidence of a good reason for not taking medication for her symptoms, her symptom testimony cannot be rejected for not doing so.” (citation omitted)). At no point in the treatment records did Wang or Feldman indicate a belief that physical therapy, if resumed, would provide Garrison with adequate relief. .In any event, we doubt that epidural steroid shots to the neck and lower back qualify as \"conservative” medical treatment. . It is also consistent with the mental health impairments that Garrison described in her testimony' — impairments that undoubtedly interacted with her physical impairments in a manner that makes her testimony even more credible. . See also Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir.2001) (\"With regard to mental disorders, the Commissioner’s decision must take into account evidence indicating that the claimant’s true functional ability may be substantially less than the claimant asserts or wishes. Given the unpredictable course of mental illness, [s]ymptom-ffee intervals and brief remissions are generally of uncertain duration and marked by the impending possibility of relapse. Moreover, [(Individuals with chronic psychotic disorders"
},
{
"docid": "17083877",
"title": "",
"text": "the above quotation from the ALJ’s decision) limited Jelinek’s ability to maintain regular work attendance, to carry out instructions, and to deal with the stresses of full-time employment. What’s more, Dr. Kladder’s earlier opinion from 2006, which the ALJ largely credited, concluded that Jelinek was not a malingerer and that she suffered at least “moderate limitations” in her abilities to concentrate, to complete a normal workday or workweek, and to respond appropriately to criticism from supervisors. At the least, the ALJ was required to pose hypothetical questions to the vocational expert consistent with Dr. Kladder’s opinion (and with those of the other physicians on whose opinions he relied) to give the expert a complete picture of Jelinek’s residual functional capacity. These are reasons enough to remand the matter to the agency for further review. Nevertheless, we briefly address as well Jelinek’s final argument — that the ALJ failed to conduct a proper credibility analysis — to point out a few additional flaws that should be avoided on remand. Foremost among these is the ALJ’s repeated reference to Jelinek’s “medication non-compliance” as a reason for finding her not credible. The ALJ apparently concluded that Jelinek’s symptoms would have remained under control but for an unwillingness to take her medications as directed. But we have often observed that bipolar disorder, one of Jelinek’s chief impairments, is by nature episodic and admits to regular fluctuations even under proper treatment. ALJs assessing claimants with bipolar disorder must consider possible alternative explanations before concluding that non-compliance with medication supports an adverse credibility inference. See Punzio v. Astrue, 630 F.3d 704, 710. (7th Cir.2011); Larson, 615 F.3d at 751; Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.2008); Kangail v. Barnhart, 454 F.3d 627, 630-31 (7th Cir.2006). Here, the record shows a litany of changes to Jelinek’s medications over the years, as well as concerns by her doctors over side effects, ineffective drugs, costs, insurance issues, and compliance issues due to both mental illness and the potential lack of family and social support. Early notes from Jelinek’s visits to the Bowen Center expressed concern that her"
},
{
"docid": "7095007",
"title": "",
"text": "plaintiffs failure to follow through with recommended mental health treatment, the ALJ failed to consider the impact of the plaintiffs mental illness itself. Courts have long recognized the inherent unfairness of placing emphasis on a claimant’s failure to seek psychiatric treatment: [I]t is common knowledge that depression is one of the most under reported illnesses in the country because those afflicted often do not recognize that their condition reflects a potentially serious mental illness. See, e.g., Warren E. Leavy, “Hidden Depression,” Chi. Trib., Feb. 1, 1996 at 7 (noting that nearly 17 million adult Americans suffer from depression in a given year and that two-thirds of them do not get treatment). Thus, the fact that claimant may be one of millions of people who did not seek treatment for a mental disorder until late in the day is not a substantial basis on which to conclude that Dr. Brown’s assessment of claimant’s condition is inaccurate. As the Sixth Circuit has noted in finding invalid an ALJ’s reasons for rejecting claimant’s assertions about his depression, ‘[ajppellant may have failed to seek psychiatric treatment for his mental condition, but it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.’ Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir.1989). Ngwygen v. Chater, 100 F.3d 1462, 1465 (9th Cir.1996). In the present case there is medical evidence demonstrating this unfairness. Dr. Williams noted that the plaintiffs insight was limited, noting that “fear causes her to make poor judgments such as stopping meds.” [R 290] To find the plaintiff not credible because she exhibits precisely the sort of symptoms that her mental illness would be expected to cause is illogical and improper. The ALJ also improperly rejected the opinions of the plaintiffs treating psychologist, Dr. Rogers, and the Commissioner’s consulting psychologist, Dr. Arnold. In Wilder v. Chater, 64 F.3d 355 (7th Cir.1995), the court was faced with an ALJ who had improperly ignored the opinions of a consulting psychiatrist who was appointed by the Commissioner. Although severe depression was the mental illness at issue"
},
{
"docid": "22397404",
"title": "",
"text": "ALJ also erred in concluding that Garrison must be discredited on the ground that some — though not all- — of her bouts of remission appear to have resulted from Garrison going off some of her medications. As we have remarked, “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen, 100 F.3d at 1465 (quotation marks and citations omitted). In other words, we do not punish the mentally ill for occasionally going off their medication when the record affords compelling reason to view such departures from prescribed treatment as part of claimants’ underlying mental afflictions. See, e.g., Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir.2011); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir.2010); Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir.2009). Here, the record shows that Garrison’s occasional decisions to go “off her meds” were at least in part a result of her underlying bipolar disorder and her other psychiatric issues. . The Commissioner contends that the credit-as-true rule is invalid. As he concedes, this argument is foreclosed by precedent. On at least one occasion, in fact, we have specifically considered and rejected some of the arguments advanced anew in the Commissioner’s brief. See Moisa v. Barnhart, 367 F.3d 882, 886-87 (9th Cir.2004). . This third requirement naturally incorporates what we have sometimes described as a distinct requirement of the credit-as-true rule, namely that there are no outstanding issues that must be resolved before a determination of disability can be made. See Smolen, 80 F.3d at 1292. . The district court’s error is understandable in light of our prior failure to make clear the relationship between Connett and the Vamey II line of cases. Indeed, several years ago a panel of this Court suggested in dicta that our cases had drifted far enough apart to create an intra-circuit split. Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir.2009). Following our careful study of the relevant cases, however, we are firmly convinced that they may be fully and fairly reconciled in the manner described herein."
},
{
"docid": "22397394",
"title": "",
"text": "should not be given much weight and that Garrison’s testimony should not be accepted. As before, she dwells on the bare handful of records showing slight improvement in Garrison’s condition. At no point does she advance any argument against this evidence that we have not already carefully considered and rejected. Nor does she point to anything in the record that the ALJ overlooked and explain how that evidence casts into serious doubt Garrison’s claim to be disabled. We have independently reviewed the entire record and also have found nothing that would create doubt as to Garrison’s entitlement to the benefits she seeks. The record reflects that, since April 2007, Garrison has been afflicted with a number of severe impairments, including burning back pain that radiates into her legs, sharp neck pain that radiates into her shoulders and arms, intense anxiety and panic attacks, bipolar disorder, PTSD, and bouts of hallucinations, paranoia, and social phobia. Even if some of these symptoms have occasionally abated for brief periods of time — all while Garrison is in ongoing treatment and has significantly minimized environmental stressors — we, like her numerous medical caretakers, see no reason to doubt that she has been entirely incapable of work since April 2007. Thus, considering the Commissioner’s arguments and independently reviewing the record, we see no basis for serious doubt that Garrison is disabled. In sum, we conclude that Garrison satisfies all three conditions of the credit-as-true rule and that a careful review of the record discloses no reason to seriously doubt that she is, in fact, disabled. A remand for a calculation and award of benefits is therefore required under our credit-as-true precedents. CONCLUSION We conclude that the ALJ erred in assigning little weight to Wang and Anderson’s opinions, erred in her characterization of General’s opinion, and failed to offer specific, clear, and convincing reasons for discrediting part of Garrison’s testimony. We further conclude that the district court abused its discretion in remanding for further proceedings. We reverse the judgment of the district court with instructions to remand to the ALJ for the calculation and award of"
},
{
"docid": "22894203",
"title": "",
"text": "careful consideration of the evidence, the undersigned [administrative law judge] finds that the claimant’s medically determinable impairments would reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” The government’s brief describes this passage as a “template,” by which it means a passage drafted by the Social Security Administration for insertion into any administrative law judge’s opinion to which it pertains. This “template” is a variant of one that this court (and not only this court) had criticized previously—that “after considering the evidence of record, the undersigned finds that claimant’s medically determinable impairments would reasonably be expected to produce the alleged symptoms, but that the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” In Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.2010), we called this “meaningless boilerplate. The statement by a trier of fact that a witness’s testimony is ‘not entirely credible’ yields no clue to what weight the trier of fact gave the testimony” (emphasis in original); see also Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir.2011); Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir.2011); Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir.2010). “Such boilerplate language fails to inform us in a meaningful, reviewable way of the specific evidence the ALJ considered in determining that claimant’s complaints were not credible. More troubling, it appears that the Commissioner has repeatedly been using this same boilerplate paragraph to reject the testimony of numerous claimants, without linking the conclusory statements contained therein to evidence in the record or even tailoring the paragraph to the facts at hand, almost without regard to whether the boilerplate paragraph has any relevance to the case.” Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir.2004) (citation omitted). The present “template,” which adds at the end of the previous one “... to the extent they are inconsistent with the above RFC assessment,” is even worse, though the government’s"
},
{
"docid": "22397383",
"title": "",
"text": "PTSD and bipolar disorder remained constant across all treatment records, and her GAF score consistently hovered around 50 to 55. She remained in this condition even while going to great lengths to minimize stres-sors in her life — to the point that she could not go to the grocery store alone— and, when she did try to work for a brief period, was fired because of her mental impairments. The ALJ erred in concluding that a few short-lived periods of temporary improvement in Garrison’s mental health symptoms undermined Garrison’s testimony. c. Conclusion The ALJ did not offer specific, clear, and convincing reasons for rejecting Garrison’s testimony concerning her physical and mental impairments. In fact, the reasons given by the ALJ not only fail this demanding standard, but also would fail a far more forgiving inquiry, as they are plainly belied by the record and rest upon mischaracterizations of Garrison’s testimony. Ill Reviewing for abuse of discretion, see Harman, 211 F.3d at 1173, we reverse the district court’s decision to remand this case to the ALJ for further proceedings, and instead remand to the district court with instructions to remand to the ALJ for a calculation and award of appropriate benefits. A. Applicable Law Usually, “[i]f additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir.1981). The Social Security Act, however, makes clear that courts are empowered to affirm, modify, or reverse a decision by the Commissioner “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (emphasis added). Accordingly, every Court of Appeals has recognized that in appropriate circumstances courts are free to reverse and remand a determination by the Commissioner with instructions to calculate and award benefits. See, e.g., Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 730 (6th Cir.2014); Jones v. Astrue, 650 F.3d 772 (D.C.Cir.2011); Punzio v. Astrue, 630 F.3d 704, 713 (7th Cir.2011); Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir.2006); Hines v. Barnhart, 453 F.3d 559, 567 (4th Cir.2006); Seavey v. Barnhart, 276 F.3d"
},
{
"docid": "17083878",
"title": "",
"text": "reference to Jelinek’s “medication non-compliance” as a reason for finding her not credible. The ALJ apparently concluded that Jelinek’s symptoms would have remained under control but for an unwillingness to take her medications as directed. But we have often observed that bipolar disorder, one of Jelinek’s chief impairments, is by nature episodic and admits to regular fluctuations even under proper treatment. ALJs assessing claimants with bipolar disorder must consider possible alternative explanations before concluding that non-compliance with medication supports an adverse credibility inference. See Punzio v. Astrue, 630 F.3d 704, 710. (7th Cir.2011); Larson, 615 F.3d at 751; Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir.2008); Kangail v. Barnhart, 454 F.3d 627, 630-31 (7th Cir.2006). Here, the record shows a litany of changes to Jelinek’s medications over the years, as well as concerns by her doctors over side effects, ineffective drugs, costs, insurance issues, and compliance issues due to both mental illness and the potential lack of family and social support. Early notes from Jelinek’s visits to the Bowen Center expressed concern that her mother might not have fully supported her medication regimen. And at various times Jelinek advised doctors that she did not have insurance and was concerned about paying for therapy — a cost concern that could have limited her access to her several prescribed medications. Treatment notes did not always reflect why medication changes were made, but several notes, including notes from as late as December 2007, show that doctors were concerned that Jelinek’s medications were not optimally treating her symptoms and that she would sometimes run out of her medications. These concerns must be addressed as part of any consideration of Jelinek’s failure to comply with prescribed medication. We Reverse the district court’s judgment and Remand to the Social Security Administration for further proceedings consistent with this opinion. . A GAF between 41 and 50 indicates \"Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shop-lifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).\" In turn, a GAF between 51 and 60 reflects \"Moderate symptoms"
},
{
"docid": "22397405",
"title": "",
"text": "is invalid. As he concedes, this argument is foreclosed by precedent. On at least one occasion, in fact, we have specifically considered and rejected some of the arguments advanced anew in the Commissioner’s brief. See Moisa v. Barnhart, 367 F.3d 882, 886-87 (9th Cir.2004). . This third requirement naturally incorporates what we have sometimes described as a distinct requirement of the credit-as-true rule, namely that there are no outstanding issues that must be resolved before a determination of disability can be made. See Smolen, 80 F.3d at 1292. . The district court’s error is understandable in light of our prior failure to make clear the relationship between Connett and the Vamey II line of cases. Indeed, several years ago a panel of this Court suggested in dicta that our cases had drifted far enough apart to create an intra-circuit split. Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir.2009). Following our careful study of the relevant cases, however, we are firmly convinced that they may be fully and fairly reconciled in the manner described herein. . The Commissioner resists this conclusion, arguing that further proceedings are required because the ALJ did not make an RFC determination on the basis of Wang, Anderson, and General’s opinions. Without such an RFC determination, the Commissioner asserts, it would be impossible for us to determine whether Garrison is disabled. This argument is without merit. In no prior credit-as-true case have we suggested that an award of benefits is proper only if the ALJ made a formal RFC finding — and for good reason, because ALJs rarely base their RFC determinations on opinions or testimony that they have rejected (and it will always be such opinions or testimony that are at issue in credit-as-true cases). Instead, we have considered whether the VE answered a question describing a hypothetical person with the RFC that the claimant would possess were the relevant opinion or testimony taken as true. See, e.g., Lingenfelter, 504 F.3d at 1041; Varney II, 859 F.2d at 1401. Here, the ALJ and counsel posed questions to the VE that matched both Garrison’s testimony and"
},
{
"docid": "22397403",
"title": "",
"text": "commonly have their lives structured in such a way as to minimize stress and reduce their signs and symptoms. Such individuals may be much more impaired for work than their signs and symptoms would indicate.” (quotation marks and citations omitted) (alterations in the original)). . See also Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir.2011) (\"There can be a great distance between a patient who responds to treatment and one who is able to enter the workforce, and that difference is borne out in Dr. Tate’s treatment notes. Those notes show that although Scott had improved with treatment, she nevertheless continued to frequently experience bouts of crying and feelings of paranoia. The ALJ was not permitted to \"cherry-pick” from those mixed results to support a denial of benefits.... The very nature of bipolar disorder is that people with the disease experience fluctuations in their symptoms, so any single notation that a patient is feeling better or has had a ‘good day’ does not imply that the condition has been treated.” (citations omitted)) . The ALJ also erred in concluding that Garrison must be discredited on the ground that some — though not all- — of her bouts of remission appear to have resulted from Garrison going off some of her medications. As we have remarked, “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen, 100 F.3d at 1465 (quotation marks and citations omitted). In other words, we do not punish the mentally ill for occasionally going off their medication when the record affords compelling reason to view such departures from prescribed treatment as part of claimants’ underlying mental afflictions. See, e.g., Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir.2011); Spiva v. Astrue, 628 F.3d 346, 351 (7th Cir.2010); Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir.2009). Here, the record shows that Garrison’s occasional decisions to go “off her meds” were at least in part a result of her underlying bipolar disorder and her other psychiatric issues. . The Commissioner contends that the credit-as-true rule"
},
{
"docid": "8400443",
"title": "",
"text": "impairments. A treating doctor’s opinion receives controlling weight if it is “well-supported” and “not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(d)(2); see Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir.2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.2010). An ALJ must offer “good reasons” for discounting the opinion of a treating physician. Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir.2011); Campbell, 627 F.3d at 306. Here, the reasons the ALJ gave for discounting Dr. Tate’s assessment do not meet this standard. The ALJ first relied on Dr. Rozenfeld’s conclusion that the medical record contains no evidence of manic episodes and thus cannot support a diagnosis of bipolar disorder, which, by definition, includes both manic and depressive episodes. But the record does contain evidence that could be symptomatic of manic behavior. Dr. Tate repeatedly noted that Scott sometimes stays awake for days at a time, has paranoid ideations, is easily distracted, and experiences difficulty concentrating. These symptoms are consistent with manic episodes, see Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 357-62 (4th ed.2000), and it is possible that Dr. Tate considered them as such in diagnosing Scott with bipolar disorder. The ALJ also found Dr. Tate’s assessment internally inconsistent because, on the one hand, she opined that Scott is markedly limited in her ability to work and is likely to miss three days of work per month while, on the other hand, she also stated that Scott had responded well to treatment. But the ALJ was too quick to read inconsistency into these statements. There can be a great distance between a patient who responds to treatment and one who is able to enter the workforce, and that difference is borne out in Dr. Tate’s treatment notes. Those notes show that although Scott had improved with treatment, she nevertheless continued to frequently experience bouts of crying and feelings of paranoia. The ALJ was not permitted to “cherry-pick” from those mixed results to support a denial of benefits. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir.2010); See Myles v."
}
]
|
123733 | L.Ed.2d 668 (1960); Boyd v. United States, note 21, supra. . See, e.g., Abel v. United States, 362 U.S. 217, 80 S.Ct. 683 (1960); United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L.Ed. 877 (1932); Marron v. United States, 275 U.S. 192, 48 S.Ot. 74, 72 L.Ed. 231 (1927); Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L. Ed. 647 (1921); United States v. Boyette, 299 F.2d 92 (4 Cir.), cert. denied, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed.2d 848 (1962); Takahashi v. United States, 143 E.2d 118 (9 Cir. 1944). . United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter-, J. dissenting). . REDACTED United States v. Clancy, 276 F.2d 617, 629-31 (7 Cir. 1960), rev’d on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); Leahy v. United States, 272 F. 2d 487 (9 Cir. 1959), pet. for cert. granted, 363 U.S. 810, 80 S.Ct. 1246, 4 L.Ed. 2d 1152 (1960), pet. for cert. dismissed, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961); Merritt v. United States, 249 P. 2d 19 (6 Cir. 1957); United States v. $1058.00 in United States Currency, 210 P.Supp. 45 (W.D.Pa.1962), aff’d on other grounds, 323 F.2d 211 (3 Cir. 1963); United States v. Joseph, 174 P.Supp. 539 (E.D.Pa.1959), aff’d per | [
{
"docid": "7040993",
"title": "",
"text": "the admission of this testimony. Defendants claim that the court erred in admitting into evidence, and in failing to strike, testimony that the defendants other than Wyatt failed to file excise tax returns. But this evidence clearly had a relevant and material bearing on the case. Evidence tending to negate that defendants were operating as individuals and not attempting to evade any tax due was admissible. And there is no merit to the contention that defendants’ privilege against self-incrimination was violated by the admission of such testimony. The joint motion of certain of the defendants to quash the search warrant and suppress evidence was properly overruled. An examination of the face of the warrant shows that it is completely adequate and states sufficient grounds for its issuance. And, contrary to defendants’ contentions, the items seized at the time of the search and later admitted in evidence were all instrumentalities of the crime. The betting slips, schedules of gross amounts wagered on each game, record of accounts receivable and payable and other records were all items utilized in the continued operation of the venture and instrumentalities of the crime charged. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877; Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 72 L.Ed. 231; Merritt v. United States, 6 Cir., 249 F.2d 19. During the trial the government called over sixty witnesses in corroboration of the betting records and toll slips. Nine of these invoked the Fifth Amendment. Six of the nine had claimed the privilege before the grand jury. The error, if any, in calling such witnesses is cured by the cautionary instruction given by the District Court. United States v. Magin, 7 Cir., 280 F.2d 74, 79. Count V of the indictment charged a violation of 26 U.S.C.A. § 7203. The punishment imposed was within that authorized by that statute and on the record and under the circumstances here involved it was not excessive. United States v. Coduto, 7 Cir., 284 F.2d 464, 469, certiorari denied 365 U.S. 881, 81 S.Ct. 1027, 6 L.Ed.2d 192; United"
}
]
| [
{
"docid": "4334517",
"title": "",
"text": "* * and records, relating to the business of accepting wagers.” The agent further stated that he made and supervised an investigation of these premises and had maintained a surveillance for some period prior to the search; that agents under his supervision observed the three defendants enter and leave an apart ment at the Leclaire Avenue address daily, at regular hours, and that they saw defendants on several occasions at the Diversey Avenue address, a building which had lettering on its front window, Goodman Design & Engineering Co. The affidavit listed numerous telephone calls originating from two numbers assigned to the Leclaire Avenue address to Miami, Florida, New Orleans, Louisiana, and other out-of-state places. The agent stated he had been informed that the Miami and New Orleans numbers were registered to or used by known gamblers. We have no difficulty in concluding that the affidavit stated grounds sufficient for the issuance of valid search warrants. United States v. Clancy, 276 F.2d 617 (7th Cir.1960), rev’d on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); Merritt v. United States, 249 F.2d 19 (6th Cir.1957). During the search at the Leclaire Avenue address defendant Monaco appeared. A key taken from him was admitted into evidence. It is not clear from the record whether Monaco gave the key in response to an agent’s request or if it was taken from him. Whether or not the key was voluntarily produced is immaterial. The evidence was legally obtained by the federal agents. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950); Clay v. United States, 246 F.2d 298 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957). Defendants contend that special agents of the Intelligence Division of the Internal Revenue Service were not authorized to execute the search warrants. They argue that section 7608(b) of the Internal Revenue Code of 1954 (enacted October 23, 1962) giving investigators of the Intelligence Division authority to execute search warrants postdated the instant search of April 27, 1960. It is clear, however, that section"
},
{
"docid": "14577886",
"title": "",
"text": "United States v. Johnson, 337 F.2d 180, 201-202 (4th Cir. 1964), aff’d, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); United States v. Spatuzza, 331 F.2d 214, 218 (7th Cir.), cert. denied, 379 U.S. 829, 85 S.Ct. 58, 13 L.Ed.2d 38 (1964); Ogden v. United States, 323 F.2d 818, 819-821 (9th Cir. 1963), cert. denied, 376 U.S. 973, 84 S.Ct. 1137, 12 L.Ed.2d 86 (1964); United States v. Tomaiolo, 317 F.2d 324, 327-328 (2d Cir.), cert. denied, 375 U.S. 856, 84 S.Ct. 119, 11 L.Ed.2d 83 (1963); United States v. Greco, 298 F.2d 247, 249-250 (2d Cir.), cert. denied, 369 U.S. 820, 82 S.Ct. 831, 7 L.Ed.2d 785 (1962); United States v. Thomas, 282 F.2d 191, 193-195 (2d Cir. 1960). There are, however, other reported cases where disclosure of rough notes has been ordered, although the facts underlying the production orders in those cases have not been entirely clear. Papworth v. United States, 256 F.2d 125, 129-130 (5th Cir.), cert. denied, 358 U.S. 854, 79 S.Ct. 85, 3 L.Ed.2d 88 (1958); United States v. Clancy, 276 F.2d 617, 634 (7th Cir. 1960), rev’d on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); United States v. DeLeon, 498 F.2d 1327, 1333-1334 (7th Cir. 1974). See also United States v. Wilcox, 507 F.2d 364, 374 (4th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975) (prosecutor turned over rough notes before cross-examination of witness). . See, e.g., United States v. Hurst; United States v. Terrell; United States v. Mechanic; United States v. Lepiscopo; Wilke v. United States; United States v. Hensley; United States v. Spatuzza; United States v. Tomaiolo, all supra note 25. . See, e.g., United States v. Hurst; United States v. Pacheco; United States v. Lane; United States v. Covello; United States v. Comulada; United States v. Greco, all supra note 25. . See, e.g., United States v. Cruz; United States v. Mechanic; United States v. Lepiscopo ; United States v. Graves; Wilke v. United States; United States v. Fruchtman; United States v. Missler; Matthews v. United States; United"
},
{
"docid": "4334518",
"title": "",
"text": "L.Ed.2d 574 (1961); Merritt v. United States, 249 F.2d 19 (6th Cir.1957). During the search at the Leclaire Avenue address defendant Monaco appeared. A key taken from him was admitted into evidence. It is not clear from the record whether Monaco gave the key in response to an agent’s request or if it was taken from him. Whether or not the key was voluntarily produced is immaterial. The evidence was legally obtained by the federal agents. United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L.Ed. 653 (1950); Clay v. United States, 246 F.2d 298 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957). Defendants contend that special agents of the Intelligence Division of the Internal Revenue Service were not authorized to execute the search warrants. They argue that section 7608(b) of the Internal Revenue Code of 1954 (enacted October 23, 1962) giving investigators of the Intelligence Division authority to execute search warrants postdated the instant search of April 27, 1960. It is clear, however, that section 7608(b) was solely a clarification statute and that Internal Revenue agents had implied authority under section 7803(a) to make arrests and to execute search warrants. United States v. Murphy, 290 F.2d 573 (3d Cir.1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d, 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960). Admissibility of Telephone Conversations. Defendants assert that the district judge erred in admitting testimony of two agents concerning telephone conversations with unidentified persons who telephoned the apartment at the Leclaire Avenue address during the search of the premises. The evidence shows that the agents were assigned to answer calls made to the three telephones located on the premises. On some occasions in response to the caller’s request to place a bet the agents answered, “Yes,” and hung up. In several instances, however, one of the agents, in response to the caller’s question, “Who is this?”, gave the name of one or the other of the defendants as the person speaking, and the caller then placed"
},
{
"docid": "8143910",
"title": "",
"text": "23 L.Ed. 588 (1875); United States v. Hoffa, 205 F. Supp. 710, 715-717 (S.D.Fla.), cert. denied sub nom. Hoffa v. Lieb, 371 U.S. 892, 83 S.Ct. 188, 9 L.Ed.2d 125 (1962). . United States v. Greenberg, 30 F.R.D. 164, 167 (S.D.N.Y.1962). . 323 U.S. 88, 93-95, 65 S.Ct. 148, 89 L. Ed. 88 (1944). . 363 U.S. 370, 392-393, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960). . 371 U.S. 75, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). . Id. at 80, 83 S.Ct. at 176. . See Friedman v. United States, 347 F.2d 697, 710-711 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965); Clark v. United States, 93 U.S.App.D.C. 61, 208 F.2d 840, cert. denied, 346 U.S. 865, 74 S.Ct. 105, 98 L.Ed. 376 (1953). . See Kotteakos v. United States, 328 U. S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). . See Blumenthal v. United States, 332 U.S. 539, 557-559, 68 S.Ct. 248, 92 L.Ed. 154 (1947); Friedman v. United States, 347 F.2d 697, 708 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965); United States v. New York Great A & P Tea Co., 137 F.2d 459, 463 (5th Cir.), cert. denied, 320 U.S. 783, 64 S.Ct. 191, 88 L.Ed. 471 (1943) ; United States v. Bruno, 105 F.2d 921, 922-923 (2d Cir.), rev’d on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). . See United States v. Garguilo, 324 F.2d 795, 796-797 (2d Cir. 1963); United States v. Gonzalez, 321 F.2d 638 (2d Cir. 1963) ; United States v. O’Donnell, 260 F.2d 232 (7th Cir. 1958); United States v. Stern, 123 F.Supp. 118, 122-123 (D.Md.1954), aff’d, 219 F.2d 263 (4th Cir. 1955). . Marco v. Dulles, 169 F.Supp. 622, 629-630 (S.D.N.Y.), appeal dismissed, 268 F. 2d 192 (2d Cir. 1959); T. C. Theatre Corp. v. Warner Bros., 113 F.Supp. 265, 268-269 (S.D.N.Y.1953). . See Himmelfarb v. United States, 175 F.2d 924, 938-939 (9th Cir.), cert. denied, 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527 (1949); Green v. Crapo, 181 Mass."
},
{
"docid": "6327400",
"title": "",
"text": "R., 266 F.2d 411, 415-416 (2d Cir., 1959); Peterson v. Brotherhood of Locomotive Firemen, 272 F.2d 115, 118-119 (7th Cir., 1959) (dictum); Mount v. Grand International Bhd. of Locomotive Engineers, 226 F.2d 604, 607-608 (6th Cir., 1955), cert. denied, 350 U.S. 967, 76 S.Ct. 436, 100 L.Ed. 839 (1956); La-France v. Brotherhood of Locomotive Firemen, 204 F.Supp. 13, 14 (E.D.Mich. 1962); Nobile v. Woodward, 200 F.Supp. 785 (E.D.Pa.1962); Brady v. Trans World Airlines, Inc., 196 F.Supp. 504, 506-507 n. 6 (D.Del.1961); 174 F.Supp. 360, 363 (D.Del.1959); 167 F.Supp. 469, 473 — 474 (D.Del.1958); Gainey v. Brotherhood of Railway Clerks, 177 F.Supp. 421, 430-431 (E.D.Pa.1959), aff’d, 275 F.2d 342, 345 (3d Cir.) (question reserved), cert. denied, 363 U.S. 811, 80 S.Ct. 1248, 4 L.Ed.2d 1153 (1960); Cherico v. Brotherhood of Railroad Trainmen, 167 F.Supp. 635, 636-637 (S.D.N.Y.1958); Hargrove v. Brotherhood of Locomotive Engineers, 116 F.Supp. 3, 7-9 (D.D.0.1953); Milstead v. Atlantic Coast Line R. R., 273 Ala. 557, 562-564, 142 So.2d 705, 709-711, cert. denied, 371 U.S. 892, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); Choate v. Grand International Brotherhood of Locomotive Engineers, 159 Tex. 1, 4-6, 314 S.W.2d 795, 798-799 (1958); Crowell v. Palmer, 134 Conn. 502, 508-510, 58 A.2d 729, 732-733 (1948). See Ford Motor Co. v. Huffman, 345 U.S. 330, 336-338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Wallace Corp. v. N. L. R. B., 323 U.S. 248, 255-256, 65 S.Ct. 238, 89 L.Ed. 216 (1944); Trailmobile Co. v. Whirls, 331 U.S. 40, 67-70, 67 S.Ct. 982, 91 L.Ed. 1328 (1947) (Jackson and Frankfurter, JJ., dissent on other grounds); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 185 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962); Hughes Tool Co. v. N. L. R. B., 147 F.2d 69, 74 (5th Cir., 1945); Durandetti v. Chrysler Corp., 195 F.Supp. 653 (E.D.Mieh. 1961); Ostrofsky v. United Steelworkers, 171 F.Supp. 782, 793-794 (D.Md.1959), aff’d per curiam, 273 F.2d 614 (4th Cir.), cert. denied, 363 U.S. 849, 80 S.Ct. 1628, 4 L.Ed.2d 1732 (1960); Berman v. National Maritime Union, 166 F.Supp. 327, 331-332 (S.D.N.Y.1958). See also, Aaron,"
},
{
"docid": "22976635",
"title": "",
"text": "872, 874 (D.C.Cir. 1960). . United States v. Annunziato, 293 F.2d 373, 382 (2d Cir. 1961), cert. denied 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134; United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 493 (2d Cir. 1960); United States v. Simmons, 281 F.2d 354, 358 (2d Cir. 1959); Johnston v. United States, 260 F.2d 345, 347 (10th Cir. 1958), cert. denied 360 U.S. 935, 80 S.Ct. 1454, 4 L.Ed.2d 1547; United States v. Tellier, 255 F.2d 441, 449 (2d Cir. 1958), cert. denied 358 U.S. 821, 79 S.Ct. 33, 3 L.Ed.2d 62. Compare Communist Party of United States v. Subversive Activities Control Board, 107 U.S.App.D.C. 279, 277 F.2d 78, 81 (1959), aff’d 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625: (“Failure * * * to grant a motion not made is not reversible error * * * ”); Rios v. United States, 256 F.2d 173, 178 (9th Cir. 1958), vacated on other grounds 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (under Jencks decision). . Fed.R.Crim.P. 16, 17(c), 18 U.S.C.A. See also Louisell, Criminal Discovery: Dilemma Real or Apparent?, 49 Calif.L.Rev. 56, 08-74 (1961). . Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). . S.Rep. No. 981, 85th Cong., 1st Sess., Aug. 15, 1957, pp. 2-3; H.R.Rep. No. 700, 85th Cong., 1st Sess., July 5, 1957, pp. 2-7. See 56 Mich.L.Rev. 314, 316, n. 15 (1957). . Cf. United States v. Neverline, 266 F.2d 180, 183-184 (3d Cir. 1959). . Roberson v. United States, 282 F.2d 648, 650 (6th Cir. 1960), cert. denied 364 U.S. 879, 81 S.Ct. 167, 5 L.Ed.2d 102; Bullock v. United States, 265 F.2d 683, 692-693 (6th Cir. 1959), cert. denied 360 U.S. 932, 79 S.Ct. 1452, 3 L.Ed.2d 1546; Johnston v. United States, 260 F.2d 345, 347 (10th Cir. 1958), cert. denied 360 U.S. 935, 80 S.Ct. 1454, 4 L.Ed.2d 1547. Cf. Rios v. United States, 256 F.2d 173, 178 (9th Cir. 1958), vacated on other grounds, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688. But cf. Fryer v. United States,"
},
{
"docid": "23224513",
"title": "",
"text": "life sentence, it is very simple, because in a life sentence you are eligible for parole in 15 years; but with- a sentence to follow a life sentence, you are not eligible for parole on the life sentence, and you have to stay in jail for the rest of your life.” (S.M. 375) (June 5, 1956.) . At the start of the trial the prosecution announced that it would not ask for the death penalty under the kidnapping count. . United States v. Drake, 250 F.2d 216 (7th Cir., 1957); Simunov v. United States, 162 F.2d 314 (6th Cir., 1947). Cf. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); United States v. Di Canio, 245 F.2d 713 (2d Cir.), cert. denied, 355 U.S. 874, 78 S.Ct. 126, 2 L.Ed.2d 79 (1957); United States v. Tarricone, 242 F.2d 555 (2d Cir., 1957). Contra, Clark v. United States, 281 F.2d 230 (10th Cir., 1960) . See also, Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); United States v. Poindexter, 293 F.2d 329 (6th Cir., 1961) , cert. denied, 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392 (1962); United States v. Donovan, 242 F.2d 61 (2d Cir., 1957). Compare United States v. Parker, 181 F.Supp. 73 (N.D.Ind.), aff’d, 283 F.2d 862 (7th Cir., 1960), cert. dennied, 366 U.S. 937, 81 S.Ct. 1663, 6 L.Ed.2d 848 (1961); United States v. Jakalski, 207 F.2d 609 (7th Cir. 1959), cert. dennied, 362 U.S. 936, 80 S.Ct. 759, 4 L.Ed.2d 751 (1960). . Compare United States v. Paglia, 190 F.2d 445 (2d Cir., 1951), expressly overruled on other grounds, United States v. Taylor, 217 F.2d 397 (2d Cir., 1954). . Heideman v. United States, 281 F.2d 805 (8th Cir., 1960); Bone v. United States, 277 F.2d 63 (8th Cir., 1960); Kent v. United States, 272 F.2d 795 (1st Cir., 1959); Teller v. United States, 263 F.2d"
},
{
"docid": "22976636",
"title": "",
"text": "U.S.C.A. See also Louisell, Criminal Discovery: Dilemma Real or Apparent?, 49 Calif.L.Rev. 56, 08-74 (1961). . Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). . S.Rep. No. 981, 85th Cong., 1st Sess., Aug. 15, 1957, pp. 2-3; H.R.Rep. No. 700, 85th Cong., 1st Sess., July 5, 1957, pp. 2-7. See 56 Mich.L.Rev. 314, 316, n. 15 (1957). . Cf. United States v. Neverline, 266 F.2d 180, 183-184 (3d Cir. 1959). . Roberson v. United States, 282 F.2d 648, 650 (6th Cir. 1960), cert. denied 364 U.S. 879, 81 S.Ct. 167, 5 L.Ed.2d 102; Bullock v. United States, 265 F.2d 683, 692-693 (6th Cir. 1959), cert. denied 360 U.S. 932, 79 S.Ct. 1452, 3 L.Ed.2d 1546; Johnston v. United States, 260 F.2d 345, 347 (10th Cir. 1958), cert. denied 360 U.S. 935, 80 S.Ct. 1454, 4 L.Ed.2d 1547. Cf. Rios v. United States, 256 F.2d 173, 178 (9th Cir. 1958), vacated on other grounds, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688. But cf. Fryer v. United States, 93 U.S.App.D.C. 34, 207 F.2d 134, 137 (1953), cert. denied 346 U.S. 885, 74 S.Ct. 135, 98 L.Ed. 389. See 56 Mich.L.Rev. 314, 317 (1957). . The indictment was returned in September, 1959. The defendant was tried and convicted in July, 1960, but the trial court granted defendant’s motion for new trial. The second trial was held in January, 1961, resulting in a verdict of guilty and the entry of the judgment of conviction from which this appeal is taken. . 18 U.S.C.A. § 3500(e). Campbell v. United States, 365 U.S. 85, 93-95, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). See also United States v. Annunziato, 293 F.2d 373, 381 (2d Cir. 1961), cert. denied 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134; Karp v. United States, 277 F.2d 843, 848 (8th Cir. 1900), cert. denied 364 U.S. 842, 81 S.Ct. 80, 5 L.Ed.2d 65. As to the produeibility of interview reports prepared by an agent who is himself a witness, see Clancy v. United States, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d"
},
{
"docid": "11490576",
"title": "",
"text": "United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). . E. g., Terry v. Ohio, 392 U.S. 1, 8, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968); Ker v. California, 374 U.S. 23, 30, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). . Burdeau v. McDowell, 256 U.S. 465, 475-476, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). See also Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Accord, United States v. McGuire, 381 F.2d 306, 312-314 & n. 5 (2d Cir. 1967), cert. denied, 389 U.S. 1053, 88 S.Ct. 800, 19 L.Ed.2d 848 (1968); United States v. Goldberg, 330 F.2d 30, 35 (3d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964); Barnes v. United States, 373 F.2d 517, 518 (5th Cir. 1967). See note 40, infra. . See United States v. Parish, 152 U.S. App.D.C. 72, 81 & n. 61-62, 468 F.2d 1129, 1138 & n. 61-62 (1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973); United States v. McGuire, supra note 39, 381 F.2d at 313-314 n. 5; United States v. Goldberg, supra note 39, 330 F.2d at 35. . Corngold v. United States, 367 F.2d 1, 4-6 (9th Cir. en banc 1966); People v. McGrew, 1 Cal.3d 404, 82 Cal.Rptr. 473, 478, 462 P.2d 1, 7 (1969), cert. denied, 398 U.S. 909, 90 S.Ct. 1689, 26 L.Ed.2d 67 (1970). See also Stapleton v. Superior Court, 70 Cal.2d 97, 73 Cal.Rptr. 575, 577-578, 447 P.2d 967, 969-970 (1968); Moody v. United States, 163 A.2d 337, 339-340 (D.C.Mun.App.1960); Machlan v. State, 248 Ind. 218, 225 N.E.2d 762, 763-765 (1967); State v. Scrotsky, 39 N.J. 410, 189 A.2d 23, 24-26 (1963). . United States v. DeBerry, 487 F.2d 448, 450 (2d Cir. 1973); United States v. Cangiano, 464 F.2d 320, 324-325 (2d Cir. 1972), vacated on other grounds, 413 U.S. 913, 93 S.Ct. 3047, 37 L.Ed.2d 1023 (1973); United States v. Blum, 329 F.2d 49, 52 (2d Cir.), cert. denied,"
},
{
"docid": "23224514",
"title": "",
"text": "Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961); Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); United States v. Poindexter, 293 F.2d 329 (6th Cir., 1961) , cert. denied, 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392 (1962); United States v. Donovan, 242 F.2d 61 (2d Cir., 1957). Compare United States v. Parker, 181 F.Supp. 73 (N.D.Ind.), aff’d, 283 F.2d 862 (7th Cir., 1960), cert. dennied, 366 U.S. 937, 81 S.Ct. 1663, 6 L.Ed.2d 848 (1961); United States v. Jakalski, 207 F.2d 609 (7th Cir. 1959), cert. dennied, 362 U.S. 936, 80 S.Ct. 759, 4 L.Ed.2d 751 (1960). . Compare United States v. Paglia, 190 F.2d 445 (2d Cir., 1951), expressly overruled on other grounds, United States v. Taylor, 217 F.2d 397 (2d Cir., 1954). . Heideman v. United States, 281 F.2d 805 (8th Cir., 1960); Bone v. United States, 277 F.2d 63 (8th Cir., 1960); Kent v. United States, 272 F.2d 795 (1st Cir., 1959); Teller v. United States, 263 F.2d 871 (6th Cir., 1959); Martin v. United States, 256 F.2d 345 (5th Cir.), cert. denied, 358 U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958); Booth v. United States, 251 F.2d 296 (9th Cir., 1958); Shelton v. United States, 242 F.2d 101, rev’d en banc, 246 F.2d 571 (5th Cir., 1957); rev’d on confession of error by the Solicitor General, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958); United States v. Paglia, 190 F.2d 445 (2d Cir., 1951), expressly overruled on other grounds, United States v. Taylor, 217 F.2d 397 (2d Cir., 1954). . Cf. United States v. Monti, 100 F.Supp. 209 (E.D.N.Y.1951). . Cf. Haley v. Ohio, 332 U.S. 596, 606, 68 S.Ct. 302, 92 L.Ed. 224 (1948) (opinion of Frankfurter, J.). . United States v. Wiley, 278 F.2d 500, 504 (7th Cir., 1960). Sec generally, United States v. Wiley, 267 F.2d 453 (7th Cir., 1959); United States v. Wiley, 184 F.Supp. 679 (N.D.Ill.1960). . See People v. Guariglia, 303 N.Y. 338, 102 N.E.2d 580 (1951) ; People v. Banner, 5 Misc.2d"
},
{
"docid": "11932503",
"title": "",
"text": "required, and the like. At the very most, there were mere irregularities in the selection of the grand jury which indicted Beatrice and its codefendants. In the absence of individual prejudice to the defendant, these do not justify dismissal of the indictment. Agnew v. United States, 1897, 165 U.S. 36, 44, 17 S.Ct. 235, 41 L.Ed. 624; Young v. United States, 1954, 94 U.S.App.D.C. 54, 212 F.2d 236, 238-239 and footnote 5, cert. den. 347 U.S. 1015, 74 S.Ct. 870, 98 L.Ed. 1137. See Frazier v. United States, supra, pp. 503-504 of 335 U.S., p. 205 of 69 S.Ct. Compare United States v. Greenberg, S.D.N.Y., 1961, 200 F.Supp. 382, 387. We equate this feature of this case with the situations involved in United States v. Clancy, 7 Cir., 1960, 276 F.2d 617, 625, 631-632, reversed on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574; United States v. Dennis, supra, 2 Cir., 1950, 183 F.2d 201; Local 36, etc., v. United States, supra, 9 Cir., 1949, 177 F.2d 320, 341; Abdul v. United States, 9 Cir., 1960, 278 F.2d 234, 235, cert. den. 364 U.S. 832, 81 S.Ct. 44, 5 L.Ed.2d 58; Romney v. United States, 1948, 83 U.S.App.D.C. 150, 167 F.2d 521, 527, cert. den. 334 U.S. 847, 68 S.Ct. 1512, 92 L.Ed. 1771; Padgett v. Buxton-Smith Mercantile Co., supra, 10 Cir., 1960, 283 F.2d 597, 599. See Brookman v. United States, 8 Cir., 1925, 8 F.2d 803, 806-807; Gaughan v. United States, 8 Cir., 1927, 19 F.2d 897, 898-899. Compare Walker v. United States, supra, p. 391 of 93 F.2d. We note, incidentally, that the Nebraska jury selection system employed by this clerk and this jury commissioner was carefully reviewed once before and was upheld by Chief District Judge Delehant in an unreported memorandum filed September 24, 1956, in United States v. Brown, reversed on other grounds, 8 Cir., 1957, 245 F.2d 549. We, too, conclude that the system was not disqualifying and that the challenge to the array must fail. 2. Misconduct of government counsel before the grand jury. On the day the trial was"
},
{
"docid": "17318649",
"title": "",
"text": "majority find that the knowledge the officers possessed on October 6, 1958 makes the March 9, 1959 arrest lawful, and the subsequent search lawful. This is the identical knowledge that Commissioner Abruzzo on October 6, 1958 found insufficient to justify the issuance of a warrant to search those very premises at a time when the information was not stale. However, assuming that the officers had probable cause to arrest DiBella the search of his home cannot even then be justified. The mere fact that a search immediately follows a valid arrest does not conclusively establish the reasonableness of that search. Abel v. United States, 1960, 362 U.S. 217, 235, 80 S.Ct. 683, 695, 4 L.Ed.2d 668; United States v. Rabinowitz, 1950, 339 U.S. 56, 65-66, 70 S.Ct. 430, 94 L.Ed. 653. See Rios v. United States, supra, 364 U.S. at page 261, 80 S.Ct. at page 1436. A long and inconsistent series of cases has attempted to define the permissive area of a valid search incidental to an arrest. But as Justice Frankfurter pointed out this year in Abel: “The several cases on this subject in this Court cannot be satisfactorily reconciled. This problem has, as is well-known, provoked strong and fluctuating differences of view on the Court. This is not the occasion to attempt to reconcile all the decisions, or to re-examine them. Compare Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, with Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, compare Go-Bart, supra, and Lefkowitz, supra, with Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; compare also Harris, supra, with Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, and Trupiano with Rabinowitz, supra (overruling Trupiano). Of these cases, Harris and Rabinowitz set by far the most permissive limits upon searches incidental to lawful arrests.” 362 U.S. at page"
},
{
"docid": "2645335",
"title": "",
"text": "Toulmin’s footnotes. That general rule, set out on page 1 of Document 142, is the law which is binding upon this court. More particularized references may be found in Hyde v. United States, 225 U.S. 347, 368-369, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450 (1913), and Continental Baking Co. v. United States, 281 F.2d 137, 154 (6th Cir. 1960). . 6 Toulmin, Antitrust Laws, 616. . United States v. Sansone, 231 F.2d 887 (2nd Cir. 1956), cert. den. 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956). . Parente v. United States, 249 F.2d 752 (9th Cir. 1957) ; United States v. Clancy, 276 F.2d 617 (7th Cir. 1960), reversed on other grounds 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); Rizzo v. United States, 304 F.2d 810 (8th Cir. 1962), cert. den. sub nom. Nafie v. United States, 371 U.S. 890, 83 S.Ct. 188, 9 L.Ed.2d 123 (1962). . United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). . United States v. Singer Manufacturing Co., 374 U.S. 174, 83 S.Ct. 1773, 10 L.Ed.2d 823 (1963). . United States v. Manton, 107 F.2d 834 (2nd Cir. 1938). . United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). . Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 249, 38 S.Ct. 65, 72, 62 L.Ed. 260 (1917). . Landers v. United States, 304 F.2d 577 (5th Cir. 1962); Rizzo v. United States, supra, fn. 3; United States v. Copeland, 295 F.2d 635 (4th Cir. 1961), cert. den. 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed.2d 388 (1962); United States v. Sansone, supra, fn. 2; Newman v. United States, 156 F.2d 8 (9th Cir. 1946), cert. den. sub. nom. Cain v. United States, 329 U.S. 760, 67 S.Ct. 115, 91 L.Ed. 655; United States v. Pugliese, 153 F.2d 497 (2nd Cir. 1945). . Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), rehearing den."
},
{
"docid": "14952531",
"title": "",
"text": "L.Ed. 711 (1947). . Id. at 52, 67 S.Ct. at 529. . Cf. Dickinson v. United States, 346 U.S. 389, 394-395, 74 S.Ct. 152, 98 L. Ed. 132 (1953). . 374 U.S. 203, 296-299, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (concurring opinion) . . Id. at 298, 83 S.Ct. at 1611. . 374 U.S. 398, 415-416, 83 S.Ct. 1790, 1800, 10 L.Ed.2d 965 (1963). . Selective Draft Law Cases, 245 U.S. 366, 389-390, 38 S.Ct. 159, 62 L.Ed. 349 (1918). . See discussion and cases collected in United States v. Seeger, 326 F.2d 846, 850-855 (2d Cir. 1964), rev’d on other grounds, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). . Selective Service Act of 1917, § 4, 40 Stat. 78; Selective Training and Service Act of 1940, § 5(d), 54 Stat. 888; Selective Service Act of 1948, § 6(g), 62 Stat. 611; Military Selective Service Act of 1967, § 6(g), 50 U.S.C.App. § 456(g). . See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 354-356; 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ; cf. United States v. National Dairy Prods. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Ex parte Endo, 323 U.S. 283, 299, 65 S.Ct. 208, 89 L.Ed. 243 (1944). . Cf. United States v. Ullmann, 221 F. 2d 760, 762 (2d Cir. 1955), aff’d, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). See also United States v. Finazzo, 288 F.2d 175, 177 (6th Cir.), cert. denied, 368 U.S. 837, 82 S.Ct. 37, 7 L. Ed.2d 38 (1961) ; Tedesco v. United States, 255 F.2d 35, 37 (6th Cir. 1958) ; Blalock v. United States, 247 F.2d 615, 621 (4th Cir. 1957) ; United States v. Scully, 225 F.2d 113, 119 (2d Cir.) (Frank, J., concurring), cert. denied, 350 U.S. 897, 76 S.Ct. 156, 100 L.Ed. 788 (1955). . Section 6 of the Act, of which the ministerial exemption forms a part, sets out a detailed, comprehensive arrangement of persons either"
},
{
"docid": "6015216",
"title": "",
"text": "485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965), and F.R.Crim. P. 41(e) (3), specifically provides for return and suppression of property seized but not described in the warrant. But the courts have made numerous exceptions to the generality of the rule. One such exception is that an item which can be considered a means or instrumentality of crime may be seized even though such item is not described in the warrant under which the search is being conducted. See United States v. One 1965 Buick (6th Cir. April 17, 1968), 392 F.2d 672; United States v. Pardo-Bolland, 229 F.Supp. 473, 477-478 (S.D.N.Y.1964), affirmed, 348 F.2d 316 (2d Cir. 1965); Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539, 540 (1961), cert, denied, 375 U.S. 888, 84 S.Ct. 167, 11 L.Ed.2d 118; United States v. Joseph, 174 F.Supp. 539, 545 (E.D.Pa.1959), affirmed, 278 F.2d 504 (3rd Cir. 1960); Bryant v. United States, 252 F.2d 746, 749 (5th Cir. 1958); Sanders v. United States, 238 F.2d 145, 147 (10th Cir. 1956); Annotation, 79 A.L.R.2d 1005, 1013, and cases cited therein. See also, Porter v. United States, 335 F.2d 602, 606-609 (9th Cir. 1964); United States v. Eisner, 297 F.2d 595, 597-598 (6th Cir. 1962). The question of whether items of clothing worn at the time of the commission of a crime may be considered instrumentalities of the crime has apparently arisen only infrequently. In United States v. Garris, 262 F.Supp. 175 (D. D.C.1966), it was contended that certain'items of clothing seized pursuant to a search warrant were not within the purview of F.R.Crim.P. 41(b) (2), i. e., were not “[d]esigned or intended for use or which is or has been used as the means of committing a criminal offense.” The Court said, at 176: “The distinction between that which is purely evidentiary and that which constitutes the means by which crime has been committed or escape effected is not clear cut. See Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Abel"
},
{
"docid": "22137514",
"title": "",
"text": "CA 1965); Smith v. United States, 333 F.2d 70 (10 CA 1964); Massachusetts v. Connor, 248 F.Supp. 656 (D.Mass.), aff’d per curiam, 366 F.2d 778 (1 CA 1966); Application of James, 241 F.Supp. 858 (SD NY 1965); Sprague Electric Co. v. Tax Court, 230 F.Supp. 779 (D.Mass.1964) aff’d, 340 F.2d 947 (1 CA 1965); Rose v. McNamara, 225 F.Supp. 891 (ED Pa. 1963); Seebach v. Cullen, 224 F.Supp. 15 (ND Cal.1963); McEachern v. United States, 212 F.Supp. 706 (WD SO), rev’d on other grounds, 321 F.2d 31 (4 CA 1963). See also Senate Report No. 1992, 87th Cong., 2nd Sess., U.S.Code Cong, and Admin.News, p. 2784 (1962). . See, e. g., Ex Parte Collett, 337 U.S. 55, 72, 69 S.Ct. 944, 959, 93 L.Ed. 1207 (1949); In re Watkins, 271 F.2d 771, 76 A.L.R.2d 1113 (5 CA 1959). . Whitehouse v. Illinois Central R. Co., 349 U.S. 366, 373, 75 S.Ct. 845, 99 L.Ed. 1155 (1955) ; Laycock v. Hidalgo County AVater Control & Improvement District, 142 F.2d 789, 155 A.L.R. 460 (5 CA), cert. denied, 323 U.S. 731, 65 S.Ct. 68, 89 L.Ed. 587 (1944). . Ex parte Republic of Peru, 318 U.S. 57.8, 584, 63 S.Ct. 793, 87 L.Ed. 1014 (1943); United States ex rel. Girard Trust Co. v. Helvering, 301 U.S. 540, 544, 57 S.Ct. 855, 81 L.Ed. 1272 (1937). . Note 8 supra; see Meador, supra, at 1229-1302. . See, e. g., Conn v. United States, 376 F.2d 878, 180 Ct.Cl. 120 (1967); Shaw v. United States, 357 F.2d 949, 174 Ct.Cl. 899 (1966); Clackum v. United States, 296 F.2d 226, 148 Ct.Cl. 404 (1960); Egan v. United States, 158 P.Supp. 377, 141 Ct.Cl. 1 (1958); Shapiro v. United States, 69 F.Supp. 205, 107 Ct.Cl. 650 (1947). . See, e. g., King v. United States, 390 F.2d 894, 182 Ct.Cl. 631 (1968); Frederick v. United States, 280 F.2d 844, 150 Ct.Cl. 769 (1960); Betts v. United States, 172 P.Supp. 450, 145 Ct.Cl. 530 (1959); Friedman v. United States, 158 P.Supp. 364, 141 Ct.Cl. 239 (1958); Register v. United States, 128 P.Supp. 750, 131 Ct.Cl. 98 (1955)."
},
{
"docid": "22817415",
"title": "",
"text": "54, 4 L.Ed.2d 62; Davis v. United States, 6 Cir., 1959, 269 F.2d 357, 363, cert. denied, 1959, 361 U.S. 919, 80 S.Ct. 256, 4 L.Ed.2d 187; Phillips v. United States, 8 Cir., 1954, 212 F.2d 327, 335; McDowell v. Swope, 9 Cir., 1950, 183 F.2d 856, 858; Johnson v. United States, 4 Cir., 1960, 276 F.2d 84, 89; Levine v. Hudspeth, 10 Cir., 1942 127 F.2d 982, 984, cert. denied, 1942, 31, U.S. 628, 63 S.Ct. 39, 87 L.Ed. 507, rehearing denied, 1942, 317 U.S. 707, 63 S. Ct. 153, 87 L.Ed. 564. . Rogers v. United States, 5 Cir., 1962, 304 F.2d 520, 522; Holt v. United States, 5 Cir., 1961, 288 F.2d 447, 448, cert. denied, 1961, 368 U.S. 819, 82 S.Ct. 35, 7 L.Ed.2d 25; Russell v. United States, 9 Cir., 1961, 288 F.2d 520, 524, cert. denied, 1962, 371 U.S. 926, 83 S.Ct. 296, 9 L.Ed.2d 234; Witt v. United States, 9 Cir., 1961, 287 F.2d 389, 393, cert. denied, 1961, 366 U.S. 950, 81 S.Ct. 1904, 6 L. Ed.2d 1242; United States v. Lo Duca, 2 Cir., 1960, 274 F.2d 57, 59; Lipscomb v. United States, 8 Cir., 1960, 273 F.2d 860, 865; Costner v. United States, 6 Cir., 1959, 271 F.2d 261, 263, cert. denied, 1960, 362 U.S. 952, 80 S.Ct. 866, 4 L.Ed. 2d 870; United States v. Williams, 3 Cir., 1958, 254 F.2d 253, 255. These cases all involve either (1) a so-called “general sentence” under a multicount conviction which imposes a term less than could have been imposed on any one count or (2) sentences specifically related to convictions of one or more counts (containing an indication whether they are to be served consecutively or concurrently) each of which is within the maximum sentence for the count to which related. . Johnson v. United States, 4 Cir., 1960, 276 F.2d 84; Davis v. United States, 6 Cir., 1959, 269 F.2d 357, cert. denied, 1959, 361 U.S. 919, 80 S.Ct. 256, 4 L. Ed.2d 187; Levine v. Hudspeth, 10 Cir., 1942, 127 F.2d 982, cert. denied, 1942, 317 U.S. 628, 63"
},
{
"docid": "6789710",
"title": "",
"text": "344, 51 S.Ct. 153, 75 L.Ed. 374. . Cf. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. . Cf. Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876. . Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. . Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. . Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652; Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 467; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231; United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1309; United States v. Rabinowitz, 339 U.S, 56, 70 S.Ct. 430, 94 L.Ed. 653; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668. . She, alone, among the three defendants, testified. . Wilson v. United States, 232 U.S. 563, 34 S.Ct. 347, 58 L.Ed. 728. . It is not suggested that Boyette had' any standing to make the objection. SOBELOFF, Chief Judge (dissenting). When an important constitutional question arises in a “sordid little case,” it is as necessary to decide it correctly as if the case were a big one, for the precedent laid down will be cited in later decisions. Moreover, in sanctioning search of a house, the rule prescribed may influence officers’ conduct in situations affecting not only the depraved but the innocent. Because I think the court’s decision widens beyond permissible limits the scope of searches incident to lawful arrest, I feel obliged to dissent. The court’s opinion"
},
{
"docid": "22976641",
"title": "",
"text": "7 L.Ed.2d 134. . Scales v. United States, 367 U.S. 203, 258, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). . Campbell v. United States, 365 U.S. 85, 95-96, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961). . Killian v. United States, 368 U.S. 231, 240-241, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). . United States v. Accardo, 298 F.2d 133, 138 (7th Cir. 1962); Bary v. United States, 292 F.2d 53, 57-58 (10th Cir. 1961); Holmes v. United States, 271 F.2d 635, 637 (4th Cir. 1959). But cf. Badon v. United States, 269 F.2d 75, 82 (5th Cir. 1959), cert. denied 361 U.S. 894, 80 S.Ct. 199, 4 L.Ed.2d 152. . This was the procedure employed in Killian v. United States, 368 U.S. 231, 241-244, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). . Killian v. United States, 368 U.S. 231, 243-244, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961); Rosenberg v. United States, 360 U.S. 367, 370-371, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959); United States v. Thomas, 282 F.2d 191 (2d Cir. 1960); Karp v. United States, 277 F.2d 843, 849 (8th Cir. 1960), cert. denied 364 U.S. 842, 81 S.Ct. 80, 5 L.Ed.2d 65; compare Clancy v. United States, 365 U.S. 312, 315-316, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961). . Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961); United States v. Greco, 298 F.2d 247, 249-250 (2d Cir. 1962). When a producible statement has been innocently destroyed the court may require the government to furnish the information contained in the destroyed statement from a source which would not otherwise be subject to discovery. See United States v. Annunziato, 293 F.2d 373, 382 (2d Cir. 1901), cert. denied 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134; United States v. Thomas, 282 F.2d 191 (2d Cir. 1960). . On cross-examination of Glass at the first trial regarding the Mill Valley statement of March 28, 1958, Glass was asked whether he had had earlier interviews with the FBI, and replied that he had been interviewed once — at his Mill Valley home a week"
},
{
"docid": "22976632",
"title": "",
"text": "membership or affiliation with a single organization, we are not concerned with whether defendant might have resisted the inquiry into his organizational associations on the ground that it was unjustifiably broad. Compare Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). . See Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633 (1961); Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653 (1981); Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959). . Borrow v. FCC, 109 U.S.App.D.C. 224, 285 F.2d 666 (1960), cert. denied 364 U.S. 892, 81 S.Ct. 223, 5 L.Ed.2d 188. See also Homer v. Richmond, 292 F.2d 719 (D.C.Cir. 1961). Compare generally Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 88-105, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961). . Konigsberg v. State Bar of Cal., 366 U.S. 36, 51-52, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961); In re Anastaplo, 366 U.S. 82, 89, 81 S.Ct. 978, 6 L.Ed.2d 135 (1961). . Beilan v. Board of Public Education, 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Lerner v. Casey, 357 U.S. 468, 78 S.Ct. 1311, 1324, 2 L.Ed.2d 1423 (1958); Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951). . Cf. American Communications Ass’n CIO v. Douds, 339 U.S. 382, 404-405, 412-413, 70 S.Ct. 674, 94 L.Ed. 925 (1950); West v. United States, 274 F.2d 885, 889 (6th Cir. 1960). cert. denied 365 U.S. 811, 819, 81 S.Ct. 688, 5 L.Ed.2d 691; Lohman v. United States, 251 F.2d 951, 954 (6th Cir. 1958), cert. denied 361 U.S. 923, 80 S.Ct. 290, 4 L.Ed.2d 239; Marzani v. United States, 83 App.D.C. 78, 168 F.2d 133, 141-142 (1948), aff’d 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, adhered to 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075. See also Leedom v. International Union, of Mine, Mill & Smelter Workers, 352 U.S. 145, 148, 77 S.Ct. 154, 1 L.Ed.2d 201 (1956); United States v. Barra, 149 F.2d"
}
]
|
744799 | indication that he would be unable to investigate adequately. Therefore, the district court did not abuse its discretion in denying Walters’s request for counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir.1982). Because he has not shown that exceptional circumstances warrant the appointment of counsel, the motion is denied. See Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir.1991). Walters also contends that the conditions of confinement were inhumane because he was deprived of necessary medications and that the defendants were deliberately indifferent to his medical needs. Because the district court has not entered a final, appealable order adopting the magistrate judge’s recommendation dismissing those claims, this court does not have jurisdiction over them. See REDACTED The order denying appointment of counsel is AFFIRMED. The motion for appointment of counsel is DENIED. The appeal is DISMISSED in part. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | [
{
"docid": "23001380",
"title": "",
"text": "written summary of the disciplinary hearing. The complaint was referred to a magistrate judge, who recommended that the district court dismiss the case under § 1915(e)(2)(B) because Donaldson could not demonstrate that his disciplinary transfer to a maximum security cellblock implicated a constitutionally protected liberty interest. Donaldson objected to the magistrate judge’s report and recommendation'. After de novo review, the district court adopted the report and dismissed Donaldson’s complaint both as frivolous and for failure to state a claim. Donaldson timely filed a notice of appeal but did not pay the requisite filing fee, causing the magistrate judge to order that Donaldson either pay the fee or file a motion under Rule 24(a)(3) of the Federal Rules of Appellate Procedure to proceed as a pauper on appeal. Donaldson chose to file an IFP motion, which the magistrate judge denied under 28 U.S.C. § 1915(a)(3) because she found that Donaldson’s appeal was not taken in good faith. See Fed. R.App. P. 24(a)(3). By moving this court for IFP status on appeal, see Fed. R.App. P. 24(a)(5), Donaldson is challenging the magistrate judge’s certification order. See Baugh v. Taylor, 117 F.3d 197, 201-02 (5th Cir.1997). In this challenge, Donaldson does not argue that the magistrate judge lacked the authority to enter this certification order. Nevertheless, because the magistrate judge’s authority to enter a final, appealable order implicates this court’s jurisdiction, “we must address it sua sponte even if it is not raised by the parties.” Caprera v. Jacobs, 790 F.2d 442, 444 n. 2 (5th Cir.1986); see also id. at 445 (“[WJhen the objection is to jurisdiction, it cannot be waived.”). In general, it is well established that a magistrate judge’s order is not “final” within the meaning of § 1291 and may not be appealed to this court directly. See Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984). Ordinarily, “the recommendation of a magistrate judge is not a final decision and does not in any way ‘dispose of a party’s claims.” United States v. Cooper, 135 F.3d 960, 963 (5th Cir.1998) (discussing the general grant of authority to magistrate"
}
]
| [
{
"docid": "10202294",
"title": "",
"text": "Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. To the extent that Mitchell’s Rule 59(e) motion to alter or amend the judgment sought to undo the district court’s denial of habeas relief on the merits, it was an unauthorized successive petition that the district court lacked jurisdiction to entertain. See Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Williams v. Thaler, 602 F.3d 291, 312 (5th Cir. 2010); Crone v. Cockrell, 324 F.3d 833, 836-38 (5th Cir. 2003). To the extent that the Rule 59(e) motion challenged the denial of Mitchell’s due process claim as procedurally defaulted, it was not a successive § 2254 petition, but Mitchell needs a COA to proceed on appeal. See § 2253(c)(1)(B); see also Gonzalez, 545 U.S. at 532 & n.4, 125 S.Ct. 2641; Cardenas v. Thaler, 651 F.3d 442, 443 (5th Cir. 2011). Because we discern no legal points arguable on their merits regarding this aspect of the Rule 59(e) ruling, the attempt to appeal that issue is frivolous, see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), and reasonable jurists could not debate whether it is adequate to- deserve encouragement to proceed further, see Miller-El, 537 U.S. at 336, 123 S.Ct. 1029. With respect to these postjudgment rulings, we DISMISS this matter for lack of jurisdiction as remand would be futile. See Alvarez, 210 F.3d at 310. We deny Mitchell’s request for appointment of counsel. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985). COA -DENIED IN PART AND DISMISSED IN PART. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4."
},
{
"docid": "9823794",
"title": "",
"text": "matter be exercised and reflected in a reasoned ruling. B. Court appointed counsel in civil cases is warranted only in “exceptional circumstances,” and whether such circumstances exist is also committed to district court discretion. See Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir.1993) (“key is whether the pro se litigant needs help in presenting the essential merits of his or her position to the court”); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982) (outlining factors relevant to determination of need). Here the magistrate judge who denied Steele’s motion for appointment of counsel was correct that he had no right to appointed counsel in the absence of exceptional circumstances, see Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir.1987), but he did not adequately explain his bare assertion that the necessary circumstances were absent from this case. Again, we cannot for that reason fairly review the ruling appealed. With it now determined that genuine issues of material fact remain to be resolved and that the resolution of those issues will turn in large part on a contest of credibility between Shah and Steele and on expert opinion, a reasoned reconsideration of Steele’s motion for the aid of appointed counsel should be made upon remand. Again, we do not by this express any opinion on the merits of that matter, only that it warrants an exercise of informed discretion and a ruling on whether exceptional circumstances for the appointment do exist. IV. Because summary judgment for Shah was not warranted on the record before the district court, we reverse the judgment and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. . This Report actually was appended to Steele's complaint, but Shah was of course entitled to rely upon it as material on file. See Fed.R.Civ.P. 56(c). . Greason and Waldrop, our most directly relevant precedents on deliberate indifference in the specific factual context of this case, both were decided before Farmer expressly held, clarifying the matter, that deliberate indifference requires subjective awareness, not merely objective awareness, by the state-actor-defendant of the risk posed by a serious medical"
},
{
"docid": "23154423",
"title": "",
"text": "970, 976 n. 4 (5th Cir.1993). Williams next contends that the district court erroneously dismissed without prejudice his state law claims for libel and slander, which apparently asserted that statements on the DPS website were libelous per se under Texas law. The district court declined to exercise supplemental jurisdiction over these claims after dismissing all the federal claims. Because we affirm the district court’s dismissal of all federal claims, its dismissal without prejudice of the state law claims was proper. See Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.1999). Finally, Williams moves for appointment of counsel. In a civil case, an attorney should be appointed only under exceptional circumstances. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Given our disposition of this appeal, the nature of Williams’s claims, and the fact that he terminated his prior competent court-appointed counsel in the middle of the case below, those circumstances do not exist, and we deny the motion. AFFIRMED. . Williams made claims aside from procedural due process. We deal with them later. . Williams challenged other conditions on his parole seemingly related to sex offenses: for example, that he avoid children, photographic equipment, internet access, and sexually explicit media. But the district court held that only the requirements that he register under SORA and receive therapy implicated due process because the other \"non-public [hence, presumably, less stigmatizing] sex-offender conditions,” see Coleman v. Dretke (\"Coleman I”), 395 F.3d 216, 221 (5th Cir.2004) (holding that sex-offender registration and treatment are stigmatizing); Coleman v. Dretke (“Coleman II\"), 409 F.3d 665, 667-68 (5th Cir.2005) (on denial of petition for rehearing en banc) (holding that sex-offender treatment by itself is stigmatizing), did not impose \" 'atypical and significant hardships’ in relation to the ordinary incidents of parole” and are \"clearly within the discretion of the parole board.” Indeed, the court noted, these other conditions are part of \"Special Condition X,” an element of \"Super-Intensive Supervision Parole,” which may be imposed on any high-risk releases at the Parole Board’s discretion, whereas the registration requirement should be imposed only pursuant to SORA. (The"
},
{
"docid": "22129877",
"title": "",
"text": "781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). C. Injunctive Relief On appeal, Cooper also contends that the district court erred by failing to rule on the request in his original complaint for equitable relief. By the time Cooper filed his amended complaint, he was no longer held in the Lubbock County jail. Thus, even if Cooper’s failure to raise these claims in his amended complaint or other pleadings does not waive this issue, his transfer to another prison has rendered moot these claims for relief. See, e.g., Beck, 842 F.2d at 762 (injunctive relief moot). D. Appointment of Counsel This court may appoint counsel in civil rights suits presenting “exceptional circumstances.” See Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir.1982). We base a decision to appoint counsel on many factors, including the type and complexity of the case; the petitioner’s ability adequately to present and investigate his case; the presence of evidence which largely consists of conflicting testimony so as to require skill in presentation of evidence and in cross-examination; and the likelihood that appointment will benefit the petitioner, the court, and the defendants by “shortening the trial and assisting in a just determination.” Id. at 213 (citations omitted). Cooper’s assertion that his “mental anguish” prevents his attending to this suit plainly does not satisfy the “exceptional circumstances” requirement set out in Ul-mer. Therefore, his motion for appointment of counsel is denied. Without stating or implying any opinion as to the ultimate merits of Cooper’s case, we find that his complaint as amended by other pleadings presents sufficient facts upon which relief could be granted. Therefore, the district court’s judgment dismissing Cooper’s suit is VACATED and the case REMANDED for further consideration consistent with this opinion. . Cooper also alleged that the defendants denied him access to the courts by confiscating and then refusing to return his \"writing material, legal correspondence as well as all of plaintiff's property.” As he does not raise this issue on appeal, he has abandoned the claim. . The amended complaint named County Commissioners Carpenter, Biggs, Solis, and Brazell as defendants. These"
},
{
"docid": "11160902",
"title": "",
"text": "favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief.” Brown v. Nationsbank Corp., 188 F.3d 579, 586 (5th Cir.1999), quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1357, at 601 (1969). Castro contends that the district court erred in dismissing his case pursuant to Rule 12(b)(6) because “the district court never ordered or directed [him] to state a claim under Fed.R.Civ.P. 12(b)(6).” Of course, such an order is not typically required of the district court, but Castro is a pro se litigant, and is accordingly entitled to special accommodation by the judiciary. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998) (“Generally a district court errs in dismissing a pro se complaint for failure to state a claim under Rule 12(b)(6) without giving the plaintiff an opportunity to amend.”). Here, the district court noted that Castro had been given several opportunities to clarify or amend his claims. Castro’s response to the various motions to dismiss or for a more definite statement was that his complaint needed no further allegations. The district court was therefore not in error in evaluating Castro’s pro se complaint under Rule 12(b)(6). Relatedly, Castro argues that the district court erred in denying his request for appointment of counsel. Pursuant to 28 U.S.C. § 1915(e)(1), the court may appoint an attorney to represent a litigant in federal court, but there is no automatic right to appointment of counsel in a civil rights case as Castro seems to suggest. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). In evaluating whether the appointment of counsel is proper, the district court considers the type and complexity of the case, the litigant’s ability to investigate and present the case, and the level of skill required to present the evidence. See id. at 213. We review the denial of appointment of counsel for abuse of discretion. See Jackson v. Dallas Police Dept., 811 F.2d 260, 261 (5th Cir.1986). The district court asked Castro to fill out a questionnaire to evaluate the need"
},
{
"docid": "22355442",
"title": "",
"text": "him in the pursuance of his section 1983 claim. There is no automatic right to the appointment of counsel in a section 1983 case. Jackson v. Dallas Police Department, 811 F.2d 260, 261 (5th Cir.1986). Furthermore, a district court is not required to appoint counsel in the absence of “exceptional circumstances” which are dependent on the type and complexity of the case and the abilities of the individual pursuing that case. Id. at 261. We will overturn a decision of the district court on the appointment of counsel only if a clear abuse of discretion is shown. Id. In the instant case, the magistrate, in denying Cupit’s motion for counsel, found that the type of case was not complex, that Cupit had done a credible job of presenting motions and filing papers, that Cupit had been adequately able to investigate his case, and that the evidence primarily would consist of medical records and other documentary evidence. Furthermore, the magistrate noted Cupit’s ability to interrogate witnesses at the evidentiary hearing; therefore, the magistrate denied Cupit’s motion for counsel. On this record, we do not perceive the magistrate’s decision denying Cupit counsel to be an abuse of discretion. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982). Cupit also claims that the magistrate erred in refusing to grant his request that subpoenas be issued to approximately nine witnesses and in denying his request for production of certain jail documents. While we have found no authority in our Circuit on this specific point, the Eighth Circuit has held that the trial court “has discretionary power to refuse to subpoena witnesses and prevent abuse of process in both civil and criminal proceedings.” Mos-by v. Mabry, 697 F.2d 213, 214 (8th Cir.1982). See also Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir.1986) (No authority exists for the proposition that an indigent litigant is constitutionally entitled to subpoena an unlimited number of witnesses, including prisoners, without the payment of witness fees, and without a more substantial showing of need for the testimony of the requested witnesses.). As Cupit has failed to demonstrate that any"
},
{
"docid": "16796624",
"title": "",
"text": "file responsive pleadings in answer to the court’s order to show cause. He contends that the district court should have held an evidentiary hearing rather than dismissing his case on the pleadings. This argument is factually erroneous as well as meritless. Heckmann moved to dismiss raising the issue of absolute and qualified immunity. When a complaint raises the likely issue of absolute or qualified immunity, the plaintiff is required to “include [in the complaint] detailed facts supporting the contention that the plea of immunity cannot be sustained.” Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985). The district court ordered Vinson to show cause why his action should not be dismissed, but Vinson did not respond. Although Vinson objected to the order to show cause, he simply reiterated the allegations from his complaint: 1) Heckmann was not immune because he and his staff used improper grounds to deny Vinson parole and deprived him of his right to freedom of association, and 2) immunity is against public policy. The district court granted Heckmann’s motion to dismiss because Vinson offered only conclusory allegations and did not allege detailed facts involving Heckmann. The court found that the “issues raised by the Defendant in his motion to dismiss [we]re meritorious.” The district court did not err. “[P]arole board members are absolutely immune from liability for their conduct in individual parole decisions when they are exercising their decision making powers.” Walter v. Torres, 917 F.2d 1379, 1384 (5th Cir.1990). Vinson alleged no set of facts which entitled him to relief. B. Vinson next argues that the trial court abused its discretion in failing to appoint him counsel. This claim is merit-less. Vinson had no right to the automatic appointment of counsel because the case did not present “exceptional circumstances.” See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir.1982). C. On appeal, Vinson moves this court to disqualify Judges Rubin, Davis, King, Duhe, Garwood, Jones, Ingraham [sic], Clark, Higginbotham, Williams, and Jolly. Generally, he contends that these judges have a personal bias against him. Motions to disqualify judges appear regularly in Vinson’s appeals. This one"
},
{
"docid": "23078224",
"title": "",
"text": "from unit wardens would not have been within his personal knowledge and thus would not constitute a proper interrogatory response. Therefore, McFaul has failed to show that the desired answer would have created a genuine dispute of material fact. See Beattie, 254 F.3d at 606. VIII. McFaul asserts that the district court erred in denying his motions for appointment of counsel. He maintains that because his adherence to a religion relying solely on an oral tradition for First Amendment protections is an issue of first impression, extraordinary circumstances exist warranting the assistance of an attorney. There is no general right to counsel in civil rights actions. Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.1987). An attorney should be appointed only if exceptional circumstances exist. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). The factual issues surrounding McFaul’s claims are relatively simple. Although he asserts that his ease is “extraordinary” because his religion is based on an oral tradition, his claims are not unique or unusual. See, e.g., Adkins, 393 F.3d at 567. Because McFaul has not shown exceptional circumstances, the court did not abuse its discretion in denying counsel. See Jackson v. Dall. Police Dep’t, 811 F.2d 260, 260-61 (5th Cir.1986). The summary judgment is AFFIRMED. .Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, - U.S. -, 132 S.Ct. 1510, 1515, 182 L.Ed.2d 566 (2012) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)); Mitchell v. Quarterman, 2012 U.S.App. LEXIS 9788, at *6 (5lh Cir. May 15, 2012) (per curiam) (unpublished). . Safley, 482 U.S. at 89-91, 107 S.Ct. 2254; see Mitchell, 2012 U.S.App. LEXIS 9788, at *6; Baranowski v. Hart, 486 F.3d 112, 120-22 (5th Cir.2007). . Safley, 482 U.S. at 89, 107 S.Ct. 2254 (omission and alteration in original) (citing Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977)). . See, e.g., Green v. Polunsky, 229 F.3d 486, 490 (5th Cir.2000) (stating that prison grooming policies requiring short hair and no beards allow for rapid identification, prevent concealment of"
},
{
"docid": "5486487",
"title": "",
"text": "PER CURIAM: Charles Salmon appeals from the district court’s order denying his request for appointed counsel. Salmon is a school teacher who complains of age discrimination by four public school districts. Because we find no error in the district court’s application in this case of the four factors we set forth in Ulmer v. Chancellor, 691 F.2d 209 (5th Cir.1982), for determining whether exceptional circumstances require the appointment of counsel in section 1983 civil rights actions and no error in the court’s alternate use of the standard for appointment of counsel in Title YII cases, we affirm. There is no automatic right to the appointment of counsel; and in a civil case a federal court has considerable discretion in determining whether to appoint counsel. Ulmer, at 212; Branch v. Cole, 686 F.2d 264, 266 (5th Cir.1982). Accordingly, we review the decision of the trial court under an abuse of discretion standard. Jackson v. Dallas Police Dept., 811 F.2d 260 (5th Cir.1986). Concluding that an age discrimination action is similar in purpose and procedure to both section 1983 and Title VII lawsuits, the District Court accorded petitioner’s request for counsel the benefit of analysis under both standards. Petitioner does not assert that the court applied an incorrect standard. First, the district court evaluated petitioner’s request in light of the following four factors set forth in Ulmer: (1) the type and complexity of the case; (2) whether petitioner is capable of presenting his case adequately; (3) whether petitioner is in a position to investigate the case adequately; and (4) whether the evidence will consist in large part of conflicting testimony, so as to require skill in the presentation of evidence and in cross examination. Both the district court and the magistrate concluded that age discrimination claims do not present great complexity. Based upon petitioner’s higher education, on petitioner’s prior experience in representing himself (including the filing of at least seven lawsuits, eleven complaints with the EEOC, twenty complaints with the Texas Education Agency and ten grievances against attorneys), and on petitioner’s demonstrated ability in the current case to file motions and submit"
},
{
"docid": "16796625",
"title": "",
"text": "because Vinson offered only conclusory allegations and did not allege detailed facts involving Heckmann. The court found that the “issues raised by the Defendant in his motion to dismiss [we]re meritorious.” The district court did not err. “[P]arole board members are absolutely immune from liability for their conduct in individual parole decisions when they are exercising their decision making powers.” Walter v. Torres, 917 F.2d 1379, 1384 (5th Cir.1990). Vinson alleged no set of facts which entitled him to relief. B. Vinson next argues that the trial court abused its discretion in failing to appoint him counsel. This claim is merit-less. Vinson had no right to the automatic appointment of counsel because the case did not present “exceptional circumstances.” See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir.1982). C. On appeal, Vinson moves this court to disqualify Judges Rubin, Davis, King, Duhe, Garwood, Jones, Ingraham [sic], Clark, Higginbotham, Williams, and Jolly. Generally, he contends that these judges have a personal bias against him. Motions to disqualify judges appear regularly in Vinson’s appeals. This one contains unfounded insulting remarks and allegations almost identical to several that have been previously filed. We will strike the motion. See Theriault v. Silber, 579 F.2d 302, 302-03 (5th Cir.1978) (per curiam), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 468 (1979). D. This court may impose sanctions upon parties who take frivolous appeals. Fed.R.App.P. 38. Vinson’s appeal is “so frivolous as to warrant the imposition of sanctions.” McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 653 (5th Cir.1986). Vinson has been warned and sanctioned by the district court as to frivolous filings on several occasions. In Vinson v. Texas Board of Corrections, 901 F.2d 474, 475 (5th Cir.1990), we affirmed the district court’s imposition of a $150 sanction and prohibited Vinson from filing further appeals in this court until he paid the district court’s sanction. Vinson paid the sanction, but he was not deterred. In an unpublished opinion, this court consolidated and dismissed two of Vinson’s appeals and warned that any further frivolous appeals would result in sanctions more"
},
{
"docid": "22441151",
"title": "",
"text": "case. Consequently, we grant Jackson’s motion for leave to appeal in forma pauper-is. B. The only issue left before us is whether the district court properly denied Jackson’s motion for appointment of counsel to assist him in pursuing his section 1983 claim. There is no automatic right to the appointment of counsel in a section 1983 case. Wright v. Dallas County Sheriff Dept., 660 F.2d 623, 625-26 (5th Cir. 1981). A district court is not required to appoint counsel unless the case presents “exceptional circumstances.” Branch v. Cole, 686 F.2d 264, 266 (5th Cir.1982). “The existence of such circumstances will turn on the quality of two basic factors— the type and complexity of the case, and the abilities of the individual bringing it.” Id. at 266 (footnote omitted). A district court ruling on a request for appointed counsel is reviewed under the abuse of discretion standard. Robbins, 750 F.2d at 413. In Ulmer v. Chancellor, 691 F.2d 209 (5th Cir.1982), we laid out four factors that a district court should consider in ruling on requests for appointed counsel: (1) the type and complexity of the case; (2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is in a position to investigate adequately the case; and (4) whether the evidence will consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination. Id. at 213 (citations omitted). The court should also consider whether appointed counsel would aid in the efficient and equitable disposition of the case. Id. In its order denying Jackson’s request for appointment of counsel, the district court stated that it had considered the Ulmer factors and felt that counsel should not be appointed. The district court, however, did not present further findings explaining why Jackson’s request for counsel was denied. Normally, we would vacate the district court’s denial of a request for counsel so that it could present specific findings explaining why counsel was denied. See, e.g., Robbins, 750 F.2d at 413; Branch, 686 F.2d at 267. In this case, however, we"
},
{
"docid": "597257",
"title": "",
"text": "of time, and that the authorities in Minnesota wanted to try Good as soon as possible. Pursuant to the executive agreement, Good was turned over to the Minnesota authorities. He was tried and convicted of murder and was then returned to the Mississippi State Penitentiary to complete his sentence there. Good then brought this pro se complaint under 42 U.S.C. § 1983, alleging that the executive agreement was “authorized without legal authority” and that he was returned to Mississippi without the opportunity of a hearing. The defendants moved for summary judgment or in the alternative for dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the motion to dismiss and ordered the case dismissed with prejudice. II.Appointment of Counsel Good argues that his request for appointment of counsel should have been granted. The magistrate denied Good’s request on the grounds that Good had not submitted evidence of any efforts to retain counsel and the case was simple, presenting no exceptional circumstances. Good did not ask the district court to review the magistrate’s order. A magistrate’s order is not ordinarily appealable to this court. Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984). In any case, it was not an abuse of discretion to deny the appointment of counsel because there is no indication of the kind of exceptional circumstances, such as complex issues or conflicting testimony, that make the appointment of counsel necessary in civil rights cases. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982). III. Assignment of Magistrate Good argues the district court should have assigned a magistrate to the case so that Good would have had the opportunity to amend his complaint, and that the failure to do so was a violation of his constitutional right to equal protection. There is no constitutional right to have a magistrate appointed and there is no indication that the failure to appoint one in this case was an abuse of the district court’s discretion or in any way an infringement of Good’s right to equal protection. The case Good cites"
},
{
"docid": "597258",
"title": "",
"text": "district court to review the magistrate’s order. A magistrate’s order is not ordinarily appealable to this court. Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984). In any case, it was not an abuse of discretion to deny the appointment of counsel because there is no indication of the kind of exceptional circumstances, such as complex issues or conflicting testimony, that make the appointment of counsel necessary in civil rights cases. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982). III. Assignment of Magistrate Good argues the district court should have assigned a magistrate to the case so that Good would have had the opportunity to amend his complaint, and that the failure to do so was a violation of his constitutional right to equal protection. There is no constitutional right to have a magistrate appointed and there is no indication that the failure to appoint one in this case was an abuse of the district court’s discretion or in any way an infringement of Good’s right to equal protection. The case Good cites to support his argument, Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982), discusses a different issue. In Nettles we held a party could not obtain de novo review of issues decided by a magistrate if the party had not filed objections to the magistrate’s report. IV. Failure to State a Claim Good’s complaint asserted that legal authority was lacking for the executive agreement and that he was denied a hearing prior to his return to Mississippi. As the district court stated in its opinion: Interstate extradition of a fugitive is a matter of federal law originating from the United States Constitution. A person charged, in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. U.S. Const.art. IV, § 2, cl. 2. Congress has enacted a general extradition law to effectuate this constitutional provision and to prescribe the"
},
{
"docid": "23154422",
"title": "",
"text": "neither party adequately addressed the claim below. In any event, Coleman I forecloses the argument. See Coleman I, 395 F.3d at 224-25 (concluding that imposition of sex-offender condition at issue here did not “shock the conscience” so as to violate substantive due process). Liberally construed, Williams’s briefs raise several claims not raised in the district court, including violation of the First and Fourth Amendments and the prohibition against ex post facto laws. Because these claims were not raised in district court, we do not address them on appeal. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir.2000). Williams also failed to discuss in his opening brief his claims that defendants violated his federal constitutional rights to equal protection and privacy and his state law right against invasion of privacy; he eventually addressed the federal claims, but only in his reply brief. Accordingly, we deem these claims abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993); Unida v. Levi Strauss & Co., 986 F.2d 970, 976 n. 4 (5th Cir.1993). Williams next contends that the district court erroneously dismissed without prejudice his state law claims for libel and slander, which apparently asserted that statements on the DPS website were libelous per se under Texas law. The district court declined to exercise supplemental jurisdiction over these claims after dismissing all the federal claims. Because we affirm the district court’s dismissal of all federal claims, its dismissal without prejudice of the state law claims was proper. See Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir.1999). Finally, Williams moves for appointment of counsel. In a civil case, an attorney should be appointed only under exceptional circumstances. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Given our disposition of this appeal, the nature of Williams’s claims, and the fact that he terminated his prior competent court-appointed counsel in the middle of the case below, those circumstances do not exist, and we deny the motion. AFFIRMED. . Williams made claims aside from procedural due process. We deal with them"
},
{
"docid": "22097936",
"title": "",
"text": "process claim and his underlying Eighth Amendment claim are frivolous. Finally, Norton has not shown why the transcript is necessary to challenge the district court’s order on appeal. Therefore we find that he does not meet the requirements of section 753(f), and we affirm the denial of his motion for production of a transcript. E The district court also denied Norton’s motion for appointment of counsel, which Norton cites as error. We review a district court’s decision not to appoint counsel for abuse of discretion. Jackson v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir.1986). A district court should appoint counsel in a civil rights case only if presented with exceptional circumstances. Id. A district court should consider four factors in making this determination: (1) the type and complexity of the case; (2) whether the indigent litigant is capable of adequately presenting his case; (3) whether the litigant is in a position to investigate the case adequately; (4) whether the evidence will consist in large part of conflicting testimony, thus requiring skill in presentation and cross-examination. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982). We have reviewed the record in this case, and we cannot say that the district court abused its discretion. It is clear from Norton’s medical records that his civil rights claim is meritless, and, in the end, the presence of counsel will not change this record. Ill Therefore we AFFIRM the district court’s dismissal of Norton’s civil rights claim as frivolous and AFFIRM the denial of his motion for production of a transcript at government expense. Furthermore we DENY as untimely Norton’s motion to file a reply brief. See Fed.R.App.P. 31(a); 5th Cir.R. 31.4.1. . In July of 1994, Norton requested that prison officials grant him sick leave from work because the muscles in his rectum would not retract. At a subsequent doctor visit, the physician took note of Norton's hemorrhoidal condition and prescribed Anusol and Metamucil. The doctor did not note that Norton's rectum was prolapsed. In August of the same year, Norton submitted another sick-call request, again complaining of rectal prolapse and"
},
{
"docid": "22129876",
"title": "",
"text": "Cooper to show that the defendants “violated clearly settled law of which a reasonable person would know.” See Whatley v. Philo, 817 F.2d 19, 20 (5th Cir.1987) (citing Harlow v. Fitzgerald, 457 U.S. 800, 813, 102 S.Ct. 2727, 2735, 73 L.Ed.2d 396 (1982)). First, Cooper claims that the defendants had acted outside the scope of their authority because neither the regulation nor the eighth amendment permitted the type of punishment they had imposed. Second, an official has no immunity when “the contours of the right [violated] were so clear at the time the officials acted that a reasonable official would have understood that what he was doing violated that right.” Brawner v. City of Richardson, 855 F.2d 187, 192 (5th Cir.1988) (citing Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). This circuit has long held that state prisoners are entitled to reasonably adequate food. See, e.g., Green v. McKaskle, 788 F.2d 1116, 1125 (5th Cir.1986); Newman v. Alabama, 559 F.2d 283, 291 (5th Cir.1977), rev’d in part, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978). C. Injunctive Relief On appeal, Cooper also contends that the district court erred by failing to rule on the request in his original complaint for equitable relief. By the time Cooper filed his amended complaint, he was no longer held in the Lubbock County jail. Thus, even if Cooper’s failure to raise these claims in his amended complaint or other pleadings does not waive this issue, his transfer to another prison has rendered moot these claims for relief. See, e.g., Beck, 842 F.2d at 762 (injunctive relief moot). D. Appointment of Counsel This court may appoint counsel in civil rights suits presenting “exceptional circumstances.” See Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir.1982). We base a decision to appoint counsel on many factors, including the type and complexity of the case; the petitioner’s ability adequately to present and investigate his case; the presence of evidence which largely consists of conflicting testimony so as to require skill in presentation of evidence and in cross-examination; and the"
},
{
"docid": "22064559",
"title": "",
"text": "was filed October 7 — well after the ten day limit. Jackson, therefore, waived his right to a jury trial. Lewis v. Thigpen, 767 F.2d 252, 257 (5th Cir.1985). While the motion to reconsider stated that Jackson had previously asked the clerk to note his request for a jury trial, Jackson failed to say when that request was made and the record does not contain any earlier request for a jury trial. A party may be relieved of such a waiver upon motion and at the discretion of the trial court. Fed.R.Civ.P. 39(b); Thigpen, 767 F.2d at 257. Jackson, however, made no such motion, and therefore was not entitled to a jury trial. Jackson also argues that the trial court erred in refusing to honor his motion for appointment of counsel. Generally speaking, no right to counsel exists in Section 1983 cases. “The trial court is not required to appoint counsel for an indigent plaintiff asserting a claim under 42 U.S.C. § 1983 unless the case presents exceptional circumstances.” Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). A district court has the discretion to appoint counsel if doing so would advance the proper administration of justice. 28 U.S.C. § 1915(d); Ulmer, 691 F.2d at 213. We cannot say that the district court’s refusal to appoint counsel in the instant case amounted to an abuse of that discretion. In Ulmer we identified a number of factors which should be considered in ruling on a request for appointment of counsel. These included: (1) the type and complexity of the case; (2) whether the indigent was capable of presenting his case adequately; (3) whether the indigent was in a position to investigate the case; and (4) whether the evidence would consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross examination. Ulmer, 691 F.2d at 213. The instant case is not particularly complex and Jackson proved capable of self-representation, at least until appellate proceedings. Moreover, Jackson failed to demonstrate that he was unable to secure private counsel. Finally, Jackson complains that the"
},
{
"docid": "9823793",
"title": "",
"text": "As the parties agree, the appropriate standard of psychiatric care is at issue in the case. Expert opinion on that issue and its application here obviously might be important to the finder of fact. See Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986). If, as he claims, Steele is indigent, this could provide further reason to appoint an expert to avoid a wholly one-sided presentation of opinions on the issue. See Michael H. Graham, Federal Practice and Procedure § 6681, at 355 (interim ed. 1992) (noting that one of the rationales for Rule 706 is that some litigants may not have the wherewithal to locate and/or pay for an expert). See also Smith v. Jenkins, 919 F.2d 90, 93-94 (8th Cir.1990) (noting in another case of claimed deliberate indifference by a prison doctor the necessity of expert witnesses and the advisability of the court’s appointing an expert on remand). We emphasize that we do not here offer any opinion on the propriety of appointing an expert witness; we only direct that discretion on the matter be exercised and reflected in a reasoned ruling. B. Court appointed counsel in civil cases is warranted only in “exceptional circumstances,” and whether such circumstances exist is also committed to district court discretion. See Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir.1993) (“key is whether the pro se litigant needs help in presenting the essential merits of his or her position to the court”); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982) (outlining factors relevant to determination of need). Here the magistrate judge who denied Steele’s motion for appointment of counsel was correct that he had no right to appointed counsel in the absence of exceptional circumstances, see Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir.1987), but he did not adequately explain his bare assertion that the necessary circumstances were absent from this case. Again, we cannot for that reason fairly review the ruling appealed. With it now determined that genuine issues of material fact remain to be resolved and that the resolution of those issues will turn in large part"
},
{
"docid": "22441154",
"title": "",
"text": "the notice of appeal that brought this matter before this court. We are convinced that Jackson can adequately develop the facts and present his case in any further proceedings. Finally, we cannot say at this point whether or not the evidence will consist in large part of conflicting testimony for which Jackson would require assistance of counsel. Our review of the record indicates that the evidence will consist primarily of official records and other documentary type evidence. The defendants have filed a motion for summary judgment, and we decline to express a view on the merits before they are properly before us. With the Ulmer factors in mind, we are of the opinion that the record demonstrates that the district court did not abuse its discretion in denying Jackson’s request for appointment of counsel. Thus, the district court’s order must be affirmed. III. Although we affirm the district court’s order, our disposition of this case should not be seen as condoning the court’s summary handling of Jackson's request for counsel. In considering motions for appointment of counsel in section 1983 cases, district courts should make specific findings on each of the Ulmer factors rather than deciding the motion in a conclusory manner. The failure to issue findings frustrates appellate review and cannot ordinarily be accepted. Thus, our disposition of this appeal should be seen as an exception to the preferred approach we set out above. . Specifically, the district court’s order stated: \"The court has considered the Ulmer factors and concludes, in its discretion, that counsel need not be appointed. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982).’’"
},
{
"docid": "22181877",
"title": "",
"text": "did not then renew his request for a jury. He later filed another motion to amend his complaint to add new parties, but made no request for a jury trial at that time. Under these circumstances, it was not an abuse of discretion for the district court to deny a jury trial. See Jones v. Birdsong, 679 F.2d 24, 25-26 (5th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1186, 75 L.Ed.2d 433 (1983). Next, appellant contends that the district court erred in denying his request for deposition subpoenas of the police officer and an eye-witness, and in allowing the filing of a pretrial stipulation after the deadline provided by the local rules. Defendants had previously been granted relief from appellant’s excessive discovery requests. He had filed seven sets of interrogatories, requests for production of documents, and requests for admissions. Defendants were required to respond to some of the discovery and granted a protective order as to the remainder. Discovery matters are entrusted to the district court’s sound discretion. Jerry Parks Equipment Co. v. Southeast Equipment Co. Inc., 817 F.2d 340, 342 (5th Cir.1987). No abuse of discretion has been shown. Finally, appellant insists that it was error for the district court not to appoint counsel to represent him. Counsel will be appointed in civil cases only in exceptional circumstances. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.1982). Among the factors considered when deciding whether counsel should be appointed are the complexities of the issues and whether the party is capable of representing himself. Id. at 213. The pleadings and briefs demonstrate that the issues in this case are not complex and that appellant was capable of representing himself. No abuse of discretion is shown. Appeal DISMISSED IN PART and judgment of the district court AFFIRMED."
}
]
|
292041 | plaintiff has attempted to do in respect of the two design patents, No. 99.336 and No. 101,800, does not suffice properly to dispose of the situation because a patent is always a claim of monopoly in a trade, and I do not think that the plaintiff who has brought a cause involving a patent to trial, may properly be allowed suddenly to withdraw his claim of infringement, and thus leave the question of validity outstanding, and the threat of future prosecutions for alleged infringement hanging over the trade. Lewis Invisible Stitch Machine Company v. Columbia Blindstitch Machine Mfg. Corp., D.C., 22 F.Supp. 705, 708, 709; Knaust Bros. v. Goldschlag, et al., D.C., 28 F.Supp. 188, 190; and cf. REDACTED In order, therefore, finally to clean up the matter I hold that the second and third design patents, — Tompkins No. 99.336 and No. 101,800 — are invalid for lack of invention over the prior art. ' E. g. The Sportsman Pilot of July 15, 1934 and July 15, 1935, and the 1909 Catalogue of the Lenox-Belleek Company, the celebrated potters at Trenton, New Jersey, — Defendant’s Exhibit “H”, — showing a design for a pot or jar marked No. 485-486. VI. So far as the Tompkins mechanical patent, No. 2,097,222, is concerned, the claims relied on, Nos. 1, 5, 6, 9, 11, 13 and 14, are found to be, in my opinion, as I stated | [
{
"docid": "8027851",
"title": "",
"text": "858 has been — quite appropriately — withdrawn, as there was undoubtedly publication, both in this country and abroad, before ' any- statutory steps to copyright that picture here were taken. :Such an informal method of withdrawing one branch of a claim like this could be passed without further notice, if it were hot for the fact that a status — namely, a copyright monopoly — is involved. , Consequently, whilst I very much appreciate the attitude of counsel for the plaintiff in withdrawing No. 858 from con-, sideration and relieving me from dealing with that part of this cause, I cannot allow an informal withdrawal of a copyright claim. Cf. Lewis Invisible Stitch Machine Co. v. Columbia Blind Machine Mfg. Co., D.C., 22 F.Supp. 705. ■ I hold that the copyright was invalid in respect of No. 858 by reason of previous publication in the United States and abroad, without the required statutory notice of •United States copyright, and that the status of that picture must be definitely disposed of herein in order that there shall not be any claim for copyright thereof hanging as a threat over the trade involving these religious pictures. Consequently, there must be a formal judgment dismissing the complaint in respect of- Picture No. 858. VII. The crucial questions which emerge from the facts proved in this cause are— 1. Whether the copyrights of the catalogues were void ab initio in respect of some of the photographs portrayed therein by reason of— (a) Prior publication in Italy of reproductions of those photographs without any United States copyright notice on them, or (b) The fact that in respect of two of the catalogues, the copyright applications and the resultant certificates were false, because the time of publication for United States copyright purposes was antedated therein. 2. Whether, if any of the copyrights were valid, they were lost by reason— (a) Of failure of copyright markings on individual photographs or reproductions, or (b) Of the insufficiency of such markings, or 3. If not, whether, for the reasons in 2(a) and 2(b) the defendant was, in respect"
}
]
| [
{
"docid": "5176720",
"title": "",
"text": "Patent No. 2,034,678, and of the four claims of Patent No. 2,097,766. On April 6, 1939, the plaintiff, in a bill of particulars stated that it would not rely on Patent No. 2,097,766 but would rely only on claims 1, 2, 3, 4, 7 and 8 of Patent No. 2,034,678 and omitted claims Nos. 5 and 6. This was approximately three weeks prior to the commencement of the trial of this suit. At the argument, after the trial thereof, on June 2, 1939, the plaintiff’s counsel stated in open Court that he would consent to a decree under the counter-claim holding that there had not been any infringement of Patent No. 2,097,766. But this, of course, does not cover the ambit of the relief desired by the defendants. It seems to me that in the evidence thei«e is not any dissent from the fact that the concept shown in the specifications and claims -of Patent No. 2,097,766 for a “Means of Producing Mushrooms” was old in the art, namely, that if trays of mycelium are kept dry in a place where the temperature and humidity is low, the growth of the mycelium after casing can be almost indefinitely suspended and started again when it is dampened properly and put in a temperature — circa 55 degrees Fahrenheit — high enough to be hospitable to the growth of mushrooms. I do not think that in the case of a patent, which is a claim of monopoly hanging over a trade, the plaintiff can suddenly, at the last moment, withdraw his claim of infringement and then claim, as the plaintiff’s counsel now seeks to do, that the question of the validity has become moot. Lewis Invisible Stitch Machine Co. v. Columbia Blindstitch Machine Mfg. Corp., D.C., 22 F.Supp. 705, 708, 709, and cf. Basevi v. Edward O’Toole Co., D.C., 26 F. Supp. 41, 44, applying the same principle to copyrights. I think the plaintiff itself created a controversy by asserting the validity of the four claims of that patent and an infringement thereof. Meiniecke v. Eagle Druggist Supply Co., Inc., D.C., 19"
},
{
"docid": "9949617",
"title": "",
"text": "people, of whom a measurable number — it does not appear from the testimony how many — were Canadians. Now there has been in this cause a cavalcade of witnesses from the needle trade who came in and testified here before me as to the results of that campaign. I think that there was some damage done by it because it must be remembered that the Columbia Blindstitch Company makes not only skipstitch machines and blindstitch machines, but other machines which have been described during the trial, and the effect of a generalized notice given throughout the trade, which I think, having observed the witnesses, do not represent perhaps the highest type of intelligence, would be very apt to cause damage in'respect of machines of the Columbia Company which were not, and were not claimed to be, covered by the Lewis patents. The result undoubtedly was, as is shown by the testimony that has been before me, that there were some losses of sales by Columbia. As I said before, however, I think that those losses have probably been somewhat exaggerated. I think there has been considerable feeling of exasperation between the two companies, and the defendant has perhaps been inclined to regard the plaintiff too much as the devil behind all the troubles it may have encountered in making sales. I, therefore, hold that there was unfair competition by the plaintiff with the defendant. XI. Then I am faced with a curious and interesting question which I am going to deal with, I, think, in a novel way. On the one side, whether rightly or wrongly, I have held that two of these patents were valid and infringed. That means that ordinarily speaking I should be granting to the plaintiff an acounting for damages and profits. I am not inclined to take such high ground as the Circuit Court of Appeals took in the case of Art Metal Works v. Abraham & Straus, Inc., 2 Cir., 70 F.2d 641, 642, and say that the situation here is so fraught with evil on the plaintiff’s part as to make it"
},
{
"docid": "5176746",
"title": "",
"text": "crop so to have more space for growth and so a larger, crop. But it is my opinion that, as in long beds, when trays are used— 1. That the cleanliness of the containers plus thorough pasteurization of the compost is what achieves the advantage in the control of flies and other insects, and 2. That care in selection of casing soil is what achieves control of disease. I find, therefore, that the two zone concept of the plaintiff was not an invention but was merely an attempt of an intelligent man experienced in mushroom growing — in response to the competition existing with other mushroom growers — ■ to achieve a probably easier and more certain method of control of the hazards of his trade. I find that this cause shows, therefore, merely another illustration of the process of evolution at work in a useful art. Cf. Less Car Load Lots Co. v. Pennsylvania Railroad Company, D.C., 10 F.Supp. 642, affirmed, 2 Cir., 80 F.2d 1015. For it seems to me that I cannot properly say that the two zone method is an instance of invention unless I can find some new scientific result due to the removal of the boxes to the second zone, as. was true in the use of the second septic tank in Cameron Septic Tank Company v. Village of Saratoga Springs, et al., 2 Cir., 159 F. 453. That I cannot do here. I think that, so far as the patent is concerned, the old instrumentalities are doing their old jobs at the same temperatures as before and always intrinsically in the same fashion, although those jobs are done-in two different places instead of being done in one. Cf. Less Car Load Lots Co. v. Pennsylvania Railroad Company, D.C., 10 F.Supp. 642, affirmed 2 Cir., 80 F.2d 1015. I think, therefore, that the claims Nos. 1-4. and 7-8 of the defendants’ patent No. 2,034,678 are invalid for.lack of invention. I might stop here, but in case the appellate court should differ with me, it might be well to take up the only instance called"
},
{
"docid": "21326094",
"title": "",
"text": "2); E. I. Du Pont De Nemours & Co. v. Glidden Co., 67 F.(2d) 392, 395 (C. C. A. 2). We do not understand that the court has ever abandoned that test. We agree with the judge that the patent disclosed an invention. The issue of infringement turns less upon the differences between the defendants’ machine and the disclosure of the patent than upon the invalidity of claims 5 and 6 because of their form. They are quoted in the margin. There cannot be the slightest question that if they are valid, they are infringed. The defendant has taken everything which the Buonos contributed to the art, with mechanical variations too trivial to deserve discussion. They skip stitches by tilting the table; they tilt the table by an arm which is rocked by another arm in turn rocked by a cam, the mechanical equivalent of an eccentric. The cam is mounted on a second gear driven by a first gear, which a shaft drives. The parallelism with the disclosure is not complete in detail, but that is never necessary. The only debatable matter is of the language of the claims themselves; it is the old question of how far a claim may safely he cast in terms of function. Of the elements composing claim six we may count out at once those which serve merely to identify the machine of which the patent is an improvement. This covers the phrase, “blind-stitch sewing machine comprising a stitch forming mechanism” ; also the concluding element, “means for forming a bight in the material which is being stitched while it is located on said pivoted device.” Both of these elements the patent took over from the prior art and the claim need not describe them further. Davis Sewing Machine Co. v. New Departure Mfg. Co., 217 F. 775, 782, 783 (C. C. A. 6). In so far as the last element means that the old stitching mechanism is to stitch the work while it is on the table, that is not expressed in terms of function. The other elements of claim 6 except"
},
{
"docid": "18000548",
"title": "",
"text": "shaped bowl as part of its configuration of the NORELCO CLEAN UP MACHINE, makes no assertion as to the validity or invalidity of the plaintiffs’ design Patent ’661 — the Black & Decker DUSTBUSTER, as an overall configuration, may be a novel design; the patent may be valid, even if it used individual features that are in the public domain, such as the wedge-shaped bowl. Lancaster Colony Corp. v. Alden, 506 F.2d 1197 (2d Cir.1974). III. TRADEMARK INFRINGEMENT CLAIM In order to show that NAPC has infringed its trademark, Black & Decker, under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), must prove: (1) that the trade dress or product configuration of the two competing products are confusingly similar; (2) that the appropriated features of the trade dress or product configuration are primarily non-functional; and (3) that the product or trade dress has acquired secondary meaning. Litton, supra, 728 F.2d at 1445. Cf. Warner Bros. v. American Broadcasting Co., 720 F.2d 231, 246 (2d Cir.1983) (“Warner Bros.”). Defendant raises three defenses with respect to the first two requirements. First, NAPC argues that the configuration of the NORELCO CLEAN UP MACHINE is substantially different from Black & Decker’s DUSTBUSTER, is prominently labeled, and therefore is not confusingly similar. Second, it asserts a right to use the configuration because the Black & Decker design has been disclosed in two previous mechanical patents, so that designs are functional in nature. Finally, defendant argues that the features of the Black & Decker design are either functional or have not been used by NAPC. Defendant’s first defense is meritorious. A. Absence of Likelihood of Confusion Among the factors to be considered when determining the likelihood of confusion are: “the degree of similarity between the marks in appearance and suggestion; the similarity of the products; ... the degree of care likely to be exercised by the consumers; the strength of the complainant’s mark; [and] actual confusion.” B & L Sales Associates v. H. Daroff & Sons, Inc., 421 F.2d 352, 354 (2d Cir.1970), citing Miss Universe, Inc. v. Patricilli, 408 F.2d 506, 508 (2d"
},
{
"docid": "18000537",
"title": "",
"text": "filed February 5, 1985, alleges three causes of action: Count I is for infringement of Design Pat. No. 257,661 (’661 patent), issued on December 28, 1980, and infringement of mechanical Patent No. 4,209,875 (’875 patent), issued July 1, 1980; Count II raises a claim for unfair competition under state law pendent to the claim for patent infringement (Count I) and trademark infringement (Count III), in that plaintiffs allege that defendant’s portable rechargeable vacuum cleaner, NORELCO CLEAN UP MACHINE, substantially embodies the appearance of Black & Decker’s DUSTBUSTER vacuum cleaner, that defendant has usurped the good will and exploited the advertising and promotion of plaintiffs’ DUSTBUSTER vacuum cleaner, and that the defendant has copied plaintiffs’ trade dress and intends to pass off the Norelco vacuum cleaners as those of plaintiffs; Count III claims that defendant’s activities constitute “false description or representation and false designation as to origin and are likely to cause confusion” and deceive buyers as to the origin and quality of defendant’s machines. In its Answer, filed February 27, 1985, NAPC denies having infringed Black & Decker’s patents and has asserted counterclaims which seek to invalidate the ’661 and ’875 patents, inter alia, for lack of patentable invention over the prior art, and to invalidate the trademark covering the design of the DUSTBUSTER portable vacuum cleaner. Defendant has moved for partial summary judgment on Count I, in that the design of its NORELCO CLEAN UP MACHINE, sold under the Norelco trademark, does not infringe the plaintiffs’ design patent ’661, and on Counts II and III for trademark infringement and unfair competition. This motion for summary judgment does not attack plaintiffs’ action for infringement of the ’875 mechanical patent. For the reasons stated herein, defendant’s motion for partial summary judgment is granted. I. STANDARDS FOR GRANTING SUMMARY JUDGMENT Rule 56 of the Federal Rules of Civil Procedure requires that summary judgment be entered whenever the evidence presented indicates that no genuine issue of fact exists and that the moving party is entitled to the judgment as a matter of law. Summary judgment is “without question intended to be effectuated in"
},
{
"docid": "9949590",
"title": "",
"text": "unfair competition, similar in essence to the counterclaim in the first case. The third case, equity No. 83/361, is founded on patent No. 1,964,381, granted to the American Blind Stitch Machine Company as assignee of one Dearborn on July 26, 1934. This patent, which is referred to hereinafter as the Dearborn automatic patent, was purchased as a result of a settlement of a controversy between the American Blind Stitch Machine Company and the Lewis Invisible Stitch Machine Company by an agreement dated the 10th day of September, 1936, which was followed by delivery of an assignment to the Lewis Company by the American Company dated September 9, 1936, which carried with it not only an assignment of the Dearborn automatic patent No. 1,964,381, but also all past claims for damages due to any infringement thereof. It is from this latter clause contained in the assignment that the plaintiff gets its locus standi to sue the defendant for any infringements prior to the date of the assignment, September 9, 1936. II. The nature of blindstitching and skipstitching has been set forth with his accustomed felicity of phrase by Judge Learned Hand in the case of Buono v. Yankee Maid Dress Corporation, 2 Cir., 77 F.2d 274, at page 275. His description I hereby incorporate at this point by reference. III. I will now endeavor to give in a brief way what I have gathered from the record of the history of the demand in the trade for what is known as blindstitching and skipstitching. We were so fortunate as to have the president of the American Blind Stitch Company, Mr. Rivers, testify, and he is a man whose business experience in this trade goes back to the first part of the century and covers, at least for our present purposes, all o„f the changes therein. Of course, it was always known that you could blindstitch any material by hand. The great problem in this machine age was to find out some kind of sewing machine that could make blind stitches, and Mr. Rivers states that Mr. Dearborn, who is the inventor"
},
{
"docid": "9949616",
"title": "",
"text": "for unfair competition. It is perfectly obvious to me that it is quite unfair for a patentee in the United States, who hasn’t any Canadian patent, to sqnd circulars to Canadian dealers on his patented article and in this way try to damage — because that is the only object that can be served by it — the defendant’s market in another country where the patentee has no monopoly. So here, the Lewis Company has geographically exceeded its monopoly by circularizing in Canada, and it has given, I should think it would be fair to say, a false impression as to the operation of the court in its one interlocutory decision on a question concerned with that monopoly in the United States. Also, it is to be remembered that the inter-office correspondence between Mr. Stein and his secretary in Chicago and his St. Louis office indicated that the plaintiff was on its toes to get out this notice, Exhibit G-l, as soon as possible and circularize it, I believe the testimony was, among about 12,000 people, of whom a measurable number — it does not appear from the testimony how many — were Canadians. Now there has been in this cause a cavalcade of witnesses from the needle trade who came in and testified here before me as to the results of that campaign. I think that there was some damage done by it because it must be remembered that the Columbia Blindstitch Company makes not only skipstitch machines and blindstitch machines, but other machines which have been described during the trial, and the effect of a generalized notice given throughout the trade, which I think, having observed the witnesses, do not represent perhaps the highest type of intelligence, would be very apt to cause damage in'respect of machines of the Columbia Company which were not, and were not claimed to be, covered by the Lewis patents. The result undoubtedly was, as is shown by the testimony that has been before me, that there were some losses of sales by Columbia. As I said before, however, I think that those"
},
{
"docid": "9949597",
"title": "",
"text": "claim of which was embodied in the first two suits, was withdrawn from consideration at the argument of the case by plaintiff’s attorney in view of expressions which I had made as to my in-hospitality to it from the point of view of invention, and my belief that it was invalid as an invention over 'the prior art. Such an informal method of withdrawing a contention like this could be passed without further notice if it were not for the fact that a patent was involved. Consequently, whilst I appreciate very much the attitude of plaintiff’s lawyer in withdrawing it from consideration, and relieving me of at least that much of what I think would have been unnecessary effort, I cannot allow it to be withdrawn. I must hold and do hold the single claim of the table patent No. 1,764,573 invalid in order that there should be a definite disposal of it herein, and in order that it may not hang as a threat over the art. It must be definitely got out of the way. VI. As is natural in a fast-growing art like this, there has been some litigation. The United States Blind Stitch Machine Company, together with two brothers named Buono, brought suit against Schifter, the president of the defendant here, and there was a hearing on a preliminary injunction before me in March, 1934, which was inconclusive because before it was decided I became ill. Then there was a case of Buono v. Yankee Maid Dress Corporation, D.C., 7 F.Supp. 793, decided by Judge Campbell in April, 1934. An appeal was taken from Judge Campbell’s decision sustaining the Buono patent No. 1,926,644, and his decision was affirmed as to that patent, but reversed as to the Product patent he sustained for the skipstitch made by the Buono machine, 2 Cir., 77 F.2d 274. Then in May, 1935, there was a second hearing before me on the case of United States Blind Stitch Machine Company v. Schifter on the preliminary injunction. I denied it on the ground that the defendant Schifter did not infringe the United"
},
{
"docid": "9949589",
"title": "",
"text": "have called during the trial the table patent No. 1,764,573, which was issued to Mueller on June 17, 1930, what we have called during the trial the manual disc patent No. 1,905,391, issued to Mueller April 25, 1933, and what we have called during the trial the automatic disc patent No. 1,989,602, issued to Mueller on January 29, 1935. In the first case there is a counterclaim for unfair competition filed by the defendant, which, after an appeal to the Circuit Court of Appeals on an interlocutory matter which was dismissed, was revamped in pursuance of the dicta contained in the opinion of that court. See Lewis Invisible Stitch Machine Company v. Columbia Blindstitch Machine Manufacturing Corporation, 2 Cir., 80 F.2d 862. This first suit, equity No. 80/86, was aimed at a device of the defendant which it claims that it no longer makes. The second suit, equity No. 82/365, is founded on two patents, the so-called table patent, and the so-called automatic disc patent No. 1,989,602. That second suit .also contains a counterclaim for unfair competition, similar in essence to the counterclaim in the first case. The third case, equity No. 83/361, is founded on patent No. 1,964,381, granted to the American Blind Stitch Machine Company as assignee of one Dearborn on July 26, 1934. This patent, which is referred to hereinafter as the Dearborn automatic patent, was purchased as a result of a settlement of a controversy between the American Blind Stitch Machine Company and the Lewis Invisible Stitch Machine Company by an agreement dated the 10th day of September, 1936, which was followed by delivery of an assignment to the Lewis Company by the American Company dated September 9, 1936, which carried with it not only an assignment of the Dearborn automatic patent No. 1,964,381, but also all past claims for damages due to any infringement thereof. It is from this latter clause contained in the assignment that the plaintiff gets its locus standi to sue the defendant for any infringements prior to the date of the assignment, September 9, 1936. II. The nature of blindstitching and"
},
{
"docid": "5176721",
"title": "",
"text": "kept dry in a place where the temperature and humidity is low, the growth of the mycelium after casing can be almost indefinitely suspended and started again when it is dampened properly and put in a temperature — circa 55 degrees Fahrenheit — high enough to be hospitable to the growth of mushrooms. I do not think that in the case of a patent, which is a claim of monopoly hanging over a trade, the plaintiff can suddenly, at the last moment, withdraw his claim of infringement and then claim, as the plaintiff’s counsel now seeks to do, that the question of the validity has become moot. Lewis Invisible Stitch Machine Co. v. Columbia Blindstitch Machine Mfg. Corp., D.C., 22 F.Supp. 705, 708, 709, and cf. Basevi v. Edward O’Toole Co., D.C., 26 F. Supp. 41, 44, applying the same principle to copyrights. I think the plaintiff itself created a controversy by asserting the validity of the four claims of that patent and an infringement thereof. Meiniecke v. Eagle Druggist Supply Co., Inc., D.C., 19 F.Supp. 523, 525. Inasmuch as a controversy was thus created by itself, the plaintiff cannot now, having once blown hot, be allowed to blow cold and claim that there was not any controversy. As above observed, there is not any suggestion, I think, in the evidence that Patent No. 2,097,766 disclosed anything which amounted to an invention, and as I hold the claims of Patent No. 2,034,678 relied on by the plaintiff are invalid for lack of invention and as claims Nos. 5 and 6 thereof are in pari materia with the other claims thereof, I hold that the relief asked by the defendants in their counterclaim of a declaratory judgment that all the claims of both patents are invalid is, for the reasons stated, the proper result of the proceedings herein had. So to hold, in my opinion, conduces to economy of judicial effort, as Judge Patterson pointed out in a somewhat analogous situation in Leach v. Ross Heater & Manufacturing Company, 2 Cir., 104 F.2d 88, decided April 24, 1939, and—though it does"
},
{
"docid": "22301934",
"title": "",
"text": "may be limited. See United Motors Serv., Inc. v. Tropic Aire, Inc., 8 Cir., 57 F.2d 479. The English procedure is perhaps more direct. By Section 26 of The Patents, Designs, and Trade Marks Act of 1883 the alleged infringer may petition for revocation of the defendant’s patent. See North Eastern Marine Engine Co. v. Leeds Forge Co. [1906], 1 Ch. 324. D.C., 13 F.Supp. 596; see also Bet-tis v. Patterson-Ballagh Corp., D.C., 16 F.Supp. 455. Not cited in the briefs. See Samuel Goldwyn, Inc. v. United Artists Corps., 3 Cir., 113 F.2d 703; see, also, Milwaukee Gas Specialty Co. v. Mercoid Corp., 7 Cir., 104 F.2d 589; United States Galvanizing & Plating Equipment Corp. v. Hanson-Van Winkle-Munning Co., 4 Cir., 104 F.2d 856; Caterpillar Tractor Co. v. International Harvester Co., 9 Cir., 106 F.2d 769; Lances v. Letz, 2 Cir., 115 F.2d 916; Creamery Package Manufacturing Co. v. Cherry-Burrell Corp., 3 Cir., 115 F.2d 980; Zenie Bros. v. Miskend, D.C., 10 F.Supp. 779; Interstate Cotton Oil Refining Co. v. Refining, Inc., D.C., 22 F.Supp. 678; Derman v. Gersten, D.C., 22 F.Supp. 877; Petersine Incubator Co. v. Bundy Incubator Co., D.C., S.D.Ohio, 34 U.S. P.Q. 251. The declaratory judgment has been asserted through counterclaims. Meinecke v. Eagle Druggists Supply Co., D.C., 19 F.Supp. 523; Knaust Bros. v. Goldschlag, D.C., 28 F.Supp. 188; contra: Hann v. Venetian Blind Corp., D.C., 15 F.Supp. 372; Counterclaim for Declaration of Invalidity of Patent in Suit for Its Infringement, 50 Harvard Law Review 357. O’Brien, Restrictions on the Usefulness of Declaratory Judgments in Patent Suits, 17 Journal of Patent Office Society 270. This element was either unmentioned completely or referred to only in the statement of facts in the following cases: E. Edelmann & Co. v. Triple-A Specialty Co., 7 Cir., 88 F.2d 852; United States Galvanizing & Plating Equipment Corp. v. Hanson-Van WinkleMunning Co., 4 Cir., 104 F.2d 856; Zenie Bros. v. Miskend, D.C., 10 F.Supp. 779. Duro Test Corp. v. Welsbach St. Lighting Co., D.C., 21 F.Supp. 260; B. F. Goodrich Co. v. American Lakes Paper Co., D.C., 23 F.Supp. 682. In Tinius"
},
{
"docid": "5876239",
"title": "",
"text": "only agreements with patentees to assign inventions or patents which affect restraint in trade or grant monopoly, or if designed for that purpose, are in violation of the antitrust law. Kobe, Inc. v. Dempsey Pump Co., (C.A. 10) 198 F.2d 416; Dollac Corporation v. Margon Corporation, D.C., 164 F.Supp. 41; Sperry Products, Inc. v. Aluminum Company of America, supra; United States v. L. D. Caulk Company, D.C., 126 F.Supp. 693. In the case at bar I find that the assignments or licenses of inventions did not create any such restraint of trade or monopoly and were not designed for that purpose, and that this affirmative defense cannot be sustained under the evidence adduced at the trial. (b) ACQUIRING FROM INVENTORS RIGHTS TO ALL THEIR FUTURE INVENTIONS IN THIS FIELD This charge apparently refers to evidence showing that certain employees of Peelers had assigned to plaintiff, in connection with their employment, rights to any future inventions in the field of shrimp processing machinery. The principles governing this situation are substantially the same as those governing the charge in item (a). I find that the evidence fell far short of showing that such agreements constituted a restraint of trade or monopoly or any misuse of plaintiff’s patents. (c) FILING PATENT INFRINGEMENT SUITS AGAINST MANUFACTURERS OR USERS OF COMPETITIVE SHRIMP PEELING MACHINES The evidence disclosed that the plaintiff and its predecessor the Peelers Company have instituted a number of patent infringement suits in various parts of the country against users of the Skrmetta machine, some of which are still pending, and contends that this course of action was “obviously” a part of an overall plan to monopolize and retain exclusive control of high-capacity, bulk-feed shrimp processing machinery, citing Kobe, Inc. v. Dempsey Pump Co., supra, and American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575. These cases do so hold where the purpose in bringing the infringement actions was to further an existing monopoly and eliminate competitors or potential competitors. However, the evidence here discloses instead that the filing of infringement suits was done in good faith"
},
{
"docid": "9949587",
"title": "",
"text": "WOOLSEY, District Judge. I hold that the single claim of the table patent No. 1,764,573 is invalid as not involving any inventive act over the prior art. I hold that claims 1, 3, 8, and 10 of the automatic disc patent No. 1,905,291, on which the plaintiff relies in the first cause of action, are valid but not infringed. ■ I hold that claims 1, 19, 20, 21, and 22 of the automatic disc patent No. 1,989,602, on which the plaintiff relies in the first cause of action, are valid and infringed by what we have called the defendant’s earlier disc. I hold that claims 1 -and 19 of the automatic disc patent No. 1,989,602, on which the plaintiff relies in the second cause of action, are valid and infringed by what we have called the defendant’s later disc. In both the first and second causes of action,-1 find that the defendant has sustained its charge of some unfair competition on the part of the plaintiff. I hold that in the third suit, involving the Dearborn automatic patent No. 1,964,-381, the patent is valid and infringed. ■ ,. I hold that, balancing the equities on the facts before me, the proper disposition of the matter is to allow the plaintiff the usual injunction against further infringement by the defendant of the claims of the patents which I have found valid and infringed, and to allow the defendant an injunction on the ground of unfair competition as hereinafter indicated, but I will not allow the plaintiff any damages or accounting for profits, and I will not allow the defendant any accounting for damages on its counterclaim for unfair competition. I hold that neither party shall have costs. I. These three suits have been tried together most appropriately because they are to a large extent intertwined in their evidence and in their implications. All of them involve the sewing machine art and the subdivision of that art containing what are known as blindstitch sewing machines. The first case, equity No. 80/86, founded its claim for infringement on three patents, namely, what we"
},
{
"docid": "1376135",
"title": "",
"text": "BOOTH, Circuit Judge. This is a patent suit in which the complaint contains the usual allegations and prays for an injunction and an accounting. The patents involved are, United States patent No. 1,383,-552, application filed September 7,1917, patent issued July 5,1921, to plaintiff, J. G. Mc-Donough, for a machine for trade-marking lumber or timber; United States patent No. 1,400,223, application filed September 15, 1917, renewed May 23, 1921, patent issued December 13, 1921, to plaintiff for a lumber and timber trade-marking device. The trial court dismissed the bill. In its opinion filed it held both patents valid, but further held that the accused devices of defendant did not infringe either of the patents. In this court appellee insists, as in the court below, that both patents are invalid, because the alleged inventions wore anticipated by prior patents, and because of prior public uses; and, further, because the alleged inventions lacked patentable novelty. A further defense is noniufrmgement. At the time of the issuance of plaintiff’s patents in suit and for some time prior thereto, there was a demand in the trade for devices for trade-marking lumber. Plaintiff was a designer and manufacturer of sawmill machinery. He became interested in machines for trade-marking lumber as early a.s 3915, and filed applications for patents on machines for such purpose as early as 1916. In 1917 the applications for the patents in suit were filed. The first marker machines designed by plaintiff for trade-marking lumber were used in connection with the trimmer machines in lumber mills. In these trimmer machines the lumber moved transversely. As early as 1916 plaintiff had in mind the designing of a marker machine which should mark the end of lumber moving longitudinally,'i. e., directly toward the marking machine. While the applications for the patents in suit were pending, and as early as 1917, plaintiff entered into correspondence with some of the officers of defendant or of its allied companies (belonging to the “Weyerhaeuser Forest Products” association) relative to a marker machine to place a trademark on the ends of lumber. This correspondence continued, and in the latter part"
},
{
"docid": "9949621",
"title": "",
"text": "patent monopoly, and against the prosecution of any causes elsewhere pending or to be* brought against users of, or dealers in, Columbia infringing machines for an accounting. It is my idea in deciding the case in the way I have done to have the decrees look entirely in futuro, and, so to speak, to preclude any past damages. I' think that the decrees in the first two suits, therefore, may also include an injunction against prosecution by the Lewis Company of any users, dealers, or sellers or other persons in connection with the Columbia machines which have been in litigation here beyond the securing of an injunction. In other words, I will enjoin the Lewis Company from going further with those suits than an injunction. If it gets an injunction, well and good, because that is what I. am giving it here, but it must not get an accounting against any of these users, sellers, and dealers of Columbia machines. Thus, I will not allow any accounting for damages or profits here or elsewhere either to the plaintiff or the defendant. By -this disposition of these causes the profits, if any, which the defendant may have made out of infringement, or any damage which it may have done to the plaintiff, will be deemed to' be -balanced off by the damage which the plaintiff has caused the defendant by-the nature of its unfair competition, and the respective money claims of the parties will both be allowed to be washed off the slate. The decree must also provide that the first patent mentioned in the complaints, the table patent No. 1,764,573, is held invalid, so that it will be out of the way entirely and will not be hanging as a threat over the needle trade, and the decree must also provide that there will not be any costs to either party in any of these suits pending before me. XII. This opinion shall stand as the findings of fadt and conclusions of law required under Equity Rule 70½, title 28 U.S.C.A. following section 723, and on order so providing must"
},
{
"docid": "5176747",
"title": "",
"text": "properly say that the two zone method is an instance of invention unless I can find some new scientific result due to the removal of the boxes to the second zone, as. was true in the use of the second septic tank in Cameron Septic Tank Company v. Village of Saratoga Springs, et al., 2 Cir., 159 F. 453. That I cannot do here. I think that, so far as the patent is concerned, the old instrumentalities are doing their old jobs at the same temperatures as before and always intrinsically in the same fashion, although those jobs are done-in two different places instead of being done in one. Cf. Less Car Load Lots Co. v. Pennsylvania Railroad Company, D.C., 10 F.Supp. 642, affirmed 2 Cir., 80 F.2d 1015. I think, therefore, that the claims Nos. 1-4. and 7-8 of the defendants’ patent No. 2,034,678 are invalid for.lack of invention. I might stop here, but in case the appellate court should differ with me, it might be well to take up the only instance called to my attention which, in my opinion, in any way approached a prior use. X. Aside from the question of invention, the only strongly contested question herein is whether the testimony from witnesses living in West Leesburg, Pennsylvania, to which we have referred collectively throughout the trial as the Master-one testimony, constitutes a prior use in 1932 and 1933 of the Knaust concept of two zone cultivation, and, if that concept involved invention, would defeat the patent. The first question here is whether qualitatively the testimony is sufficiently bolstered by contemporaneous documentary evidence to constitute the high.degree of proof which is required to establish prior use. All documentary evidence submitted by the Masterones is inconclusive. It does not necessarily point to a prior use of the plaintiff’s patented method. Granting that evidence to be true, however, and construing it as favorably as may be to the defendants, it does not carry the defense of prior use far enough. For though the Masterones pasteurized the boxes in their barn where they could get heat for proper"
},
{
"docid": "1998485",
"title": "",
"text": "costs of suit and attorney fees. In support of their claim of invalidity defendants cite the following prior-art' patents: Heuer, 1,930,715; Kirchner, 1,907,323; Gail, 1,905,459; Kirchner, 1,881,672; Stackhouse, 1,835,819; Lofman, 1,817,087; Stackhouse, 1,812,611; Meister et al., 1,785,839; F. Karr, 1,744,389; Kroehler, 1,706,889; C. D. Karr, 1,656,204; Jackson, 482,965. They also put in evidence the following additional patents: C. D. Karr, 1,938,489; Wunderlich, 1,932,566; Foster, 1,899,087; Karpen, 1,882,649; F. Karr, 1,798,885; F. Karr, 1,596,273; Holtfoth, 1,473,989; Lewis, 1,262,814; Mellon, 1,103,526; Simmons, 1,021,431; Bonnell, 630,967; Templin, 593,-406; Templin, 581,316; Bonnell, 405,821. The plaintiff contends that the spring structures manufactured and sold by the defendants infringe claims 2 and 4 of its spring-assembly patent No. 1,887,058, and that the spring-assembling machines constructed and used by defendants infringe claims 1, 2, 7, 8, 10, 15, and 16 of its machine patent No. 1,922,002, and Claims 1 to 9, inclusive,, and claim 14 of its machine patent No. 2,026,276. Plaintiff’s three patents in suit are presumed to be valid, and the burden is upon the defendants to establish their claims of invalidity by ¡clear and satisfactory proof. Crosley Corporation v. Westinghouse Electric & Mfg. Co., 3 Cir., 152 F.2d 895; Babson Bros. Co. v. Perfection Manufacturing Corp., D.C., 86 F.Supp. 754; Mueller v. Campbell, D.C., 68 F.Supp. 464, affirmed 6 Cir., 159 F.2d 803. See also 2 Walker on Patents, Deller’s Ed., pp. 1272, 1273, § 276. However, this presumption of , validity is rebuttable and not conclusive. J. J. Warren Co. v. Rosenblatt, 7 Cir., 80 F. 540, certiorari denied 168 U.S. 710, 18 S.Ct. 943, 42 L.Ed. 1211; Dennis v. Great Northern Ry. Co., D. C., 51 F.2d 796; Reynolds v. Emaus, D.C., 87 F.Supp. 451. There is undoubtedly a stronger presumption of validity as to plaintiff’s spring-assembly patent 1,887,058 because, of its involvement in interference proceedings in the Patent Office, in which certain prior-art patents were considered. However, this stronger presumption is not conclusive and is rebuttable upon a convincing showing, of invalidity. In considering the question of the validity of the patents in suit, the court cannot disregard the fact that"
},
{
"docid": "9949598",
"title": "",
"text": "the way. VI. As is natural in a fast-growing art like this, there has been some litigation. The United States Blind Stitch Machine Company, together with two brothers named Buono, brought suit against Schifter, the president of the defendant here, and there was a hearing on a preliminary injunction before me in March, 1934, which was inconclusive because before it was decided I became ill. Then there was a case of Buono v. Yankee Maid Dress Corporation, D.C., 7 F.Supp. 793, decided by Judge Campbell in April, 1934. An appeal was taken from Judge Campbell’s decision sustaining the Buono patent No. 1,926,644, and his decision was affirmed as to that patent, but reversed as to the Product patent he sustained for the skipstitch made by the Buono machine, 2 Cir., 77 F.2d 274. Then in May, 1935, there was a second hearing before me on the case of United States Blind Stitch Machine Company v. Schifter on the preliminary injunction. I denied it on the ground that the defendant Schifter did not infringe the United States patent No. 1,926,644. This same case came on for final hearing before Judge Knox on February 4 to 13, 1936, and was decided by Judge Knox on December 12, 1936, who held — as I had — that there was not any infringement, but did not. pass on the validity of the claim in issue, which was claim 6. I mention this litigation merely to show what has happened so far as I am aware from the point of view of litigation in this art. There was also an inquest before Judge Byers in which the Lewis Invisible Stitch Machine Company sued a user, named Marlboro Fashions, of the defendant’s first type of machine. That case was not defended, although there was an appearance for the defendant and an inquest taken which was the subject of consideration in connection with the unfair competition question with which I shall deal later. VII. I hold that the manual disc patent No. 1,905,291,is valid but not infringed. In that patent claims 1, 3, 8, and 10, which"
},
{
"docid": "9949588",
"title": "",
"text": "Dearborn automatic patent No. 1,964,-381, the patent is valid and infringed. ■ ,. I hold that, balancing the equities on the facts before me, the proper disposition of the matter is to allow the plaintiff the usual injunction against further infringement by the defendant of the claims of the patents which I have found valid and infringed, and to allow the defendant an injunction on the ground of unfair competition as hereinafter indicated, but I will not allow the plaintiff any damages or accounting for profits, and I will not allow the defendant any accounting for damages on its counterclaim for unfair competition. I hold that neither party shall have costs. I. These three suits have been tried together most appropriately because they are to a large extent intertwined in their evidence and in their implications. All of them involve the sewing machine art and the subdivision of that art containing what are known as blindstitch sewing machines. The first case, equity No. 80/86, founded its claim for infringement on three patents, namely, what we have called during the trial the table patent No. 1,764,573, which was issued to Mueller on June 17, 1930, what we have called during the trial the manual disc patent No. 1,905,391, issued to Mueller April 25, 1933, and what we have called during the trial the automatic disc patent No. 1,989,602, issued to Mueller on January 29, 1935. In the first case there is a counterclaim for unfair competition filed by the defendant, which, after an appeal to the Circuit Court of Appeals on an interlocutory matter which was dismissed, was revamped in pursuance of the dicta contained in the opinion of that court. See Lewis Invisible Stitch Machine Company v. Columbia Blindstitch Machine Manufacturing Corporation, 2 Cir., 80 F.2d 862. This first suit, equity No. 80/86, was aimed at a device of the defendant which it claims that it no longer makes. The second suit, equity No. 82/365, is founded on two patents, the so-called table patent, and the so-called automatic disc patent No. 1,989,602. That second suit .also contains a counterclaim for"
}
]
|
758914 | the extent that Petitioner claims that the exhaustion requirement should be excused because the Michigan appellate courts will not grant him relief, the Court will not excuse exhaustion on that basis. A claim that an appeal to the Michigan appellate court may be unsuccessful does not mean that exhaustion would be futile. See Godbolt v. Russell, 82 Fed.Appx. 447, 449-50 (6th Cir.2003). Accordingly, the Court finds that Petitioner’s claims are unexhausted. Where a petition contains both exhausted and unexhausted claims, the Sixth Circuit Court of Appeals has held that a district court may dismiss the unexhausted claims, retain jurisdiction over the exhausted claims, and stay proceedings pending exhaustion. Griffin v. Rogers, 308 F.3d 647, 652, n. 1 (6th Cir.2002). See also REDACTED The Sixth Circuit Court of Appeals also has approved a district court’s dismissal of a mixed petition where the district court’s order of dismissal provided safeguards such that the dismissal would not jeopardize the timeliness of a future habeas petition. Hargrove v. Brigano, 300 F.3d 717, 719-21 (6th Cir.2002). In this case, the petition contains no exhausted claims over which the court may retain jurisdiction. Thus, the Court finds the most reasonable approach to be a dismissal without prejudice so that Petitioner may pursue exhaustion of his state court remedies. The Court is mindful that, | [
{
"docid": "3350512",
"title": "",
"text": "because he exceeded his grace period by nine days, excluding other “tolla-ble” days. Id. at 377-78. To achieve the objective of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), as reenforced by AEDPA, see 28 U.S.C. § 2254(b)(1)(A), which is to assure that a district court will not grant relief on unexhausted claims, the Second Circuit established the following framework for circumstances in which a dismissal without prejudice “ ‘could jeopardize the timeliness of a collateral attack.’ ” Zarvela, 254 F.3d at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)). A district court should dismiss only the unexhausted claims in the habeas petition and stay further proceedings on the remaining portion until the petitioner has exhausted his/her remedies in state court. Id. To allay the concern that a petitioner might take an undue amount of time to pursue state court remedies, the court imposed a brief, reasonable time limit upon the petitioner to present claims to state courts and return to federal court exhaustion, “normally 30 days” after a stay is entered for the former, and “30 days” after state court exhaustion is completed for the latter. Id. at 381. “If either condition of the stay is not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed.” Id. In addition, the court ruled that the defendant’s first habe-as petition should have been stayed since complete dismissal jeopardized the timeliness of his collateral attack. Id. at 382. The Second Circuit approach is eminently reasonable. It addresses the equitable concerns raised by Justice Stevens in Duncan, preserves the interests in comity embraced by Lundy, and prevents the potential abuse of the writ perpetrated by some petitioners. As countenanced by Justice Stevens, Congress could not have desired the outcome facing Palmer: the preclusion of a timely-filed petition for the writ due to the need to accord state courts the opportunity to adjudicate claims. Nevertheless, adoption of the Second Circuit’s approach in this case would not afford Palmer the relief he"
}
]
| [
{
"docid": "14150096",
"title": "",
"text": "tolling. If, however, a petitioner does not attempt exhaustion, he foregoes the possibility of raising his unexhausted claims. See Lundy, 455 U.S. at 510, 520, 102 S.Ct. 1198. It is not always easy, even for experienced practitioners, to determine where a claim will fall in this mix. The Commonwealth argues that AED-PA requires a petitioner like Crews to make a strategic decision: he must either abandon his unexhausted claims or else return to state court to attempt to exhaust them at some risk of losing the opportunity for federal review entirely. However, nothing in AEDPA prohibits a district court from avoiding this dilemma by staying a timely mixed petition pending diligent exhaustion of unexhausted claims. AEDPA requires only that a petition be filed in federal district court before the end of the limitations period, 28 U.S.C. § 2244(d), and not be granted until all claims contained in the petition have been exhausted at the state level, 28 U.S.C. § 2254(b)(1). Thus, a habeas petition may be filed but not granted prior to total exhaustion of state remedies, and a stay pending exhaustion is perfectly consistent with these rules. The Court in Lundy required dismissal of mixed petitions to ensure that a district court would not grant relief on unexhaust-ed claims. The Court explained that “one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of litigation, have had the opportunity to pass upon the matter.” Lundy, 455 U.S. at 518, 102 S.Ct. 1198. However, a stay achieves this goal as effectively as a dismissal, because a stay is “a traditional way to ‘defer’ to another court ‘until’ that court has had an opportunity to exercise its jurisdiction over a habeas petition’s unexhausted claims.” Zarvela, 254 F.3d at 380. We will, therefore, follow Zarve-la. We hold that district courts have the discretion to stay mixed habeas corpus petitions but that, as in this case, when an outright dismissal could jeopardize the timeliness of a collateral attack, a stay is the only appropriate course of action. See 254 F.3d"
},
{
"docid": "22316283",
"title": "",
"text": "Circuit has recommended that district courts stay mixed petitions. Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000). The Fifth Circuit has allowed district courts to dismiss mixed petitions. Graham v. Johnson, 168 F.3d 762, 778 (5th Cir.1999). The Ninth Circuit has recommended that district courts dismiss only the unexhausted claims of mixed petitions and stay the remaining claims. Calderon v. United States District Court, 134 F.3d 981, 986-88 (9th Cir.1998): We have not yet explicitly considered the issue. Like the Seventh and Ninth Circuits, we think that the enactment of AEDPA warrants some adjustment in the pre-AEDPA requirement of Rose v. Lundy that mixed petitions be dismissed in their entirety. What the Supreme Court wanted to achieve, and what AEDPA reenforces, see 28 U.S.C. § 2254(b)(1)(A), is the assurance that a district court will not grant relief on unexhausted claims. That requirement of Lundy can be met by dismissing only the unexhausted claims. As to the exhausted claims, we think a district court should exercise discretion either to stay further proceedings on the remaining portion of the petition or to dismiss the petition in its entirety. In many cases, a stay will be preferable, see Duncan, 121-S.Ct. at 2130 (Stevens, J., with whom Souter, J., joins, concurring in part and in the judgment) (“[Tjhere is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies.”), and, as discussed below, will be the only appropriate course in cases like Zarvela’s where an outright dismissal “could jeopardize the timeliness of a collateral attack.” Freeman, 208 F.3d at 577. See Duncan, 121 S.Ct. at 2130 (Stevens, J., with whom Souter, J., joins, concurring in part and in the judgment) (“Indeed, there is every reason to [stay proceedings pending exhaustion] ... when the failure to retain jurisdiction would foreclose federal review of a meritorious claim because of the lapse of AEDPA’s 1-year limitations period.”). We recognize, however, that a stay, unless appropriately conditioned, could permit a habeas petitioner to take an undue amount of time to pursue state"
},
{
"docid": "9965919",
"title": "",
"text": "OPINION MERRITT, Circuit Judge. Sandra Griffin filed a petition for habeas relief in April of 1997. In September of 1998, the District Court dismissed her petition without prejudice as she had not exhausted her state remedies. When she returned to federal court in October of 1999, her re-filed petition was dismissed as untimely pursuant to the one-year limitations period under 28 U.S.C. § 2244(d)(1). In 2002, this Court vacated the District Court’s dismissal of Griffin’s petition and remanded for further proceedings in order to determine whether the petitioner was entitled to equitable tolling. Griffin v. Rogers, 308 F.3d 647 (2002).. In January of 2004, the District Court, adopting the Report and Recommendation of the Magistrate Judge, ruled that Griffin was not entitled to equitable tolling and dismissed the case for failure to file within the limitations period. Griffin timely appealed the District Court’s dismissal. In Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), this Court adopted a stay and abeyance procedure for habeas petitions that raise both exhausted and unexhausted claims. The exhausted portions of these petitions were to be stayed while the petitioner returned to state court. These stays were to be conditioned upon the petitioner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed. Also, in Palmer, this Court determined that it would be appropriate to apply these stays retroactively to petitioners like Griffin, whose claims were dismissed rather than stayed. When this case was last before this Court, it was unclear whether Griffin had complied with the 30-day window that Palmer prescribes for pursuing state remedies after a federal dismissal. The record simply did not include that information. On remand, it was conceded that Griffin did not proceed to state court for over six months, well beyond the 30-day window suggested by Palmer. The District Court refused to equitably toll the limitations period as Griffin had not filed within the 30-day time frame. The only issue on appeal is whether the"
},
{
"docid": "23696881",
"title": "",
"text": "in state court); Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir.1997) (rejecting an argument that the district court abused its discretion when it dismissed, rather than stayed, a mixed petition and holding that the district court was obligated under Rose to dismiss the mixed petition). However, the district court could have entertained Ford’s motions for a stay had he opted to dismiss the unexhausted claims from his petitions and proceed with only the exhausted claims. In that case, the district judge could have granted the stay motions, thus permitting Ford to exhaust his then-unexhausted claims in state court. This would have advanced the court’s interest in “facilitat[-ing] decision on the merits, rather than on pleadings or technicalities.” James v. Giles, 221 F.3d 1074, 1078 (9th Cir.2000); see also Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000) (stating that outright dismissal of a mixed federal habeas petition “is not proper when that step could jeopardize the timeliness of a collateral attack”). When Ford returned to federal court, the district judge could then have permitted Ford to amend his originally-filed federal petitions to incorporate the newly-exhausted claims. See, e.g., James, 269 F.3d at 1126-27 (holding that “a district court may, in its discretion, allow a petitioner to amend a mixed petition by deleting the unexhausted claims, hold the exhausted claims in abeyance until the unexhausted claims are exhausted, and then allow the petitioner to amend the stayed petition to add the now-exhausted claims”); Taylor, 134 F.3d at 989 (same); Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir.1993) (holding that the district court has the discretion to stay a habeas corpus petition containing only exhausted claims to give the petitioner time to exhaust several newly-discovered claims in state court). In this case, however, the district court did not inform Ford, who was proceeding pro se at the time, about the highly technical requirement that he must first* dismiss the unexhausted claims and then renew the stay motions that he attempted to make prematurely, despite our past admonition that “[t]he rights of pro se litigants require careful protection where highly technical requirements"
},
{
"docid": "23427053",
"title": "",
"text": "Palmer, 276 F.3d at 782. Under this analysis, first adopted in Palmer and subsequently applied in Hargrove v. Brigano, 300 F.3d 717, 2002 WL 1842218 (6th Cir.2002), we must determine whether the petitioner is entitled to equitable tolling of the statute of limitations following dismissal to permit exhaustion by examining the petitioner’s subsequent diligence in exhausting state remedies and returning to federal court. As in Palmer, 276 F.3d at 779, and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1, we are faced with a petitioner whose petition was dismissed without prejudice for failure to exhaust state remedies. As in Palmer and Hargrove, we are reviewing a district court’s disposition of such a case prior to our clarification that ordinarily, a district court should stay such unexhausted claims pending exhaustion rather than dismiss them without prejudice for that same purpose. Whether the district court dismissed the petition for failure to exhaust, with an explicit (as in this case and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1) or implicit (as in Palmer, 276 F.3d at 781) instruction to exhaust the claims in state court before returning, or stayed the proceedings pending exhaustion, the consequences for Griffin should be the same. Accordingly, we turn to Griffin’s timeliness in returning to state court and then back to federal court to determine whether she met the requirements of Palmer. 2. September 30, 1998 — Filing of State Application to Reopen The second relevant period is the period from September 30, 1998, when Judge Holschuh dismissed the first petition, to the date on which Griffin filed in the Ohio Court of Appeals her Application to Reopen pursuant to Ohio Rule of Appellate Procedure 26(B). The record before us does not indicate when Griffin filed her Application to Reopen, so the question of which party bears the relevant burden is important. If the burden lies on Griffin, in the absence of any evidence we must presume that she did not file her application within the thirty days required under Palmer. If the burden lies on the State, we must presume that she filed her"
},
{
"docid": "9965954",
"title": "",
"text": "procedure. 254 F.3d at 383 & n. 6. . The Hargrove Court did suggest that equitable tolling cases should be based on a consideration of the factors put forth by the Court in Andrews v. Orr, 851 F.2d 146 (6th Cir.1988). See Hargrove, 300 F.3d at 719-20 & n. 4. But, in its resolution of the case, the Court did not analyze these factors. Rather, it applied Zarvela and Palmer to determine that prospective equitable tolling would operate as a stay and abeyance. Indeed, given the federal courts' aversion to issuing advisory opinions, see Keene Corp. v. U.S., 508 U.S. 200, 217 & n. 13, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993), the Hargrove Court could not have embarked upon an equitable analysis. Hargrove recognizes that the 30-day windows operate as a matter of law in this Circuit. . As this Court has found previously, Griffin returned to the federal courts in a timely manner after exhausting her claims in state court. Griffin, 308 F.3d at 655. Her application to reopen was dismissed on May 24, 1999. The Supreme Court dismissed her appeal on September 22, 1999, and Griffin refiled her habeas petition on October 15, 1999. . In Godbolt v. Russell, 82 Fed. Appx. 447, 2003 WL 22734743 (6th Cir.2003) (per curiam) (unpublished), the petitioner was dismissed for failure to exhaust state remedies. When the petitioner attempted to return to federal court, his action was dismissed as untimely. Id. at 448-49. On appeal, the petitioner argued that the District Court should have stayed rather than dismissed the original petition. Id. at 449. This Court affirmed the District Court’s dismissal, finding that no error had been committed. Id.; see also Barnard v. Conley, 36 Fed Appx. 813, 815, 2002 WL 535787 (6th Cir.2002) (unpublished) (affirming District Court's dismissal of ah untimely habeas petition). The Godbolt Court further found that any error resulting from the dismissal was harmless as the petitioner did not comply with the 30-day time windows that would have accompanied such a stay. 82 Fed. Appx. at 452. Importantly, non-mandatory equitáble tolling was not at issue, and as"
},
{
"docid": "22158879",
"title": "",
"text": "also do not have a copy of the actual mail record; rather, the \"record” we possess is a handwritten response on Drew's \"Inmate Request\" form. . The Ninth Circuit has held that equitable tolling is appropriate where a district court, in violation of Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), dismisses a partially unexhausted habeas petition outright without providing the petitioner an opportunity to amend or resubmit the petition to present only the exhausted claims, with the result that the post-exhaustion federal petition is untimely under AEDPA. See Tillema v. Long, 253 F.3d 494, 503 (9th Cir.2001). Moreover, as the majority observes in footnote 8, the timeliness problems in this case could have been avoided had the district court retained jurisdiction over Drew's first petition and held that petition in abeyance while the unexhausted claims were pursued in the state court — an approach that a number of circuits have endorsed. See Delaney v. Matesanz, 264 F.3d 7, 14 n. 5 (1st Cir.2001); Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.2001) (endorsing retention of jurisdiction during remand over petitions containing both exhausted and unexhausted claims); Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000) (same); Calderon v. United States Dist. Ct., 134 F.3d 981, 988 (9th Cir.1998) (same); but see Graham v. Johnson, 168 F.3d 762, 778-80 (5th Cir.1999) (holding that mixed petitions should be dismissed, not held in abeyance). . As the federal magistrate wrote in her report, the State specifically argued that it would not be futile to require Drew to refile in state court \"because Florida authorities hold that denials of post-conviction motions on the ground of facial insufficiency are without prejudice to the movant's ability to refile his claims.” Magistrate's Report and Recommendation at 6 (citing Flint v. State, 561 So.2d 1343, 1344 (Fla.Dist.Ct.App.1990); Long v. State, 555 So.2d 434, 435 (Fla.Dist.Ct.App.1990)). In its brief to this Court, Florida suggests that its about-face in state court'is explained by Drew’s unanticipated omission of an allegation from his third state motion that the facts on which it was based were"
},
{
"docid": "23363086",
"title": "",
"text": "and (4) the exclusion of lesser-included or lesser-related offense instructions violated federal rights. We must decline to address on the merits these arguments because of the total exhaustion doctrine. “Congress has emphatically directed us that habeas petitioners seeking relief in federal court must first exhaust all available state court remedies — that is, unless doing so would be futile because of ‘an absence of available State corrective process’ or because ‘circumstances exist that render such process ineffective to protect the rights of the applicant.’ ” Magar v. Parker, 490 F.3d 816, 818 (10th Cir.2007) (quoting 28 U.S.C. § 2254(b)(1)). Under this requirement, “federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines, 544 U.S. at 273, 125 S.Ct. 1528 (summarizing Rose, 455 U.S. at 518-19, 102 S.Ct. 1198); see also Allen, 568 F.3d at 1201 n. 7 (discussing mixed petitions and Rhines). When a district court is presented with a petition containing both exhausted and unexhausted claims and addresses all of the claims on the merits, the proper approach on appeal ordinarily is to vaeate[ ] the order ... and remand[ ] the case to the district court so that it [can] do one of four things: (1) dismiss the mixed petition in its entirety, Rhines, 544 U.S. at 274, 125 S.Ct. 1528; (2) stay the petition and hold it in abeyance while the petitioner returns to state court to raise his unexhausted claims, id. at 275, 125 S.Ct. 1528; (3) permit the petitioner to dismiss the unexhausted claims and proceed with the exhausted claims, id. at 278, 125 S.Ct. 1528; or (4) ignore the exhaustion requirement altogether and deny the petition on the merits if none of the petitioner’s claims has any merit, 28 U.S.C. § 2254(b)(2). Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir.2009) (emphasis omitted); see, e.g., Cassett v. Stewart, 406 F.3d 614, 625 (9th Cir.2005) (instructing the district court on remand “to consider, consistent with Rhines, whether to stay the proceedings, hold in abeyance [the] exhausted petition, and dismiss without prejudice his unexhausted ..."
},
{
"docid": "13105435",
"title": "",
"text": "id. (Letter from Adrian Caban), on August 16, 1999. Therefore, this Court finds that Ca-ban’s statements exonerating Pacheco should be considered “newly discovered” as of August 16, 1999, for § 2244(d)(1)(D) purposes. Because Pacheco’s amended petition was filed on May 24, 2000, well before the limitations period ended on August 16, 2000, this Court finds that the amended petition was timely. C. Mixed Petitions Having decided that Pacheco’s amended petition was timely filed, the Court must now determine how to proceed with his mixed petition. Prior to the enactment of the AEDPA, “mixed” petitions — those presenting both unexhausted and exhausted claims — had to be dismissed in their entirety; consequently, petitioners were left with the option of either exhausting the unexhausted claims in state court, or abandoning them entirely. See Rose v. Lundy, 455 U.S. 509, 519, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Now, district courts presented with a mixed petition may proceed in one of the following three ways: (1) deny the petition on their merits pursuant to 28 U.S.C. § 2254(b)(2), where the unexhausted claims are “patently frivolous,” Jones v. Senkowski, 2002 WL 246451, at *4 (2d Cir. Oct.5, 2001); (2) dismiss the entire petition without prejudice, Zarvela v. Artuz, 254 F.3d 374, 382 (2d Cir.2001); or (3) stay the petition pending the exhaustion of state remedies “where an outright dismissal ‘could jeopardize the timeliness of a collateral attack.’” Id. at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)). In the instant case, Pacheco’s claim of newly discovered evidence proving actual innocence cannot be considered “patently frivolous” in light of Caban’s affidavit. Dismissing the petition in its entirely would “jeopardize the timeliness of a collateral attack,” Zarvela, 254 F.3d at 380, in that it would bar Pacheco from filing a subsequent habeas petition containing the same claims presented in the amended petition. The appropriate course of action, therefore, is to stay Pacheco’s amended petition and retain jurisdiction pending exhaustion of state remedies. Pursuant to the foregoing, Pacheco’s motion to stay the petition is hereby GRANTED. IT IS HEREBY ORDERED THAT all proceedings"
},
{
"docid": "7649569",
"title": "",
"text": "the petition be dismissed for failure to exhaust. The magistrate judge considered Jackson’s petition mixed, because it included the unexhaust-ed claim that he had received ineffective assistance of appellate counsel. In addition to determining that Jackson’s petition was mixed and therefore must be dismissed, the magistrate judge also concluded that Jackson’s exhausted claims were procedurally defaulted. In light of this dual holding, the magistrate judge offered Jackson two options: (1) withdraw the unexhausted ineffective assistance claim, leaving a fully exhausted, but procedurally barred, petition or (2) leave the unexhausted issue in the petition, in which case the petition would be denied without prejudice as mixed. In his Report and Recommendation, the magistrate judge also considered, sua sponte, the propriety of a stay to allow Jackson time to exhaust the ineffective assistance claim but declined to issue one, stating that there were “no extraordinary circumstances that would warrant a stay,” as there was “no reason why Jackson could not have raised this constitutional claim in the state courts prior to presenting it to this Court.” On March 26, 2002, Jackson filed a motion requesting that his petition be held in abeyance until his ineffective assistance of counsel claim, then pending before the California Supreme Court, was fully exhausted. The magistrate judge denied Jackson’s request on May 9, 2002. After Jackson did not exercise the option to withdraw his unexhausted claim, the district judge adopted the Report of the imag-istrate judge and dismissed Jackson’s petition without prejudice on May 10, 2002. Jackson filed a Notice of Appeal and an application for a certificate of appealability on June 17, 2002. Although the district court denied the application, Jackson obtained a certificate of appealability from this Court on December 17, 2002. n. Labeled “one of the pillars of federal habeas corpus jurisprudence,” the doctrine of exhaustion requires a petitioner to present his claims to a state court for review before seeking relief in federal court. Calderon v. United States District Court (Taylor), 134 F.3d 981, 984 (9th Cir.1998). For reasons of comity and federalism, the Supreme Court required exhaustion of state remedies long before"
},
{
"docid": "23443746",
"title": "",
"text": "example, the petitioner brought a mixed petition. At petitioner’s request, the district court dismissed without prejudice the petitioner’s single, unex-hausted claim and denied the remaining, exhausted claims on the merits. When the petitioner attempted to return to federal court to assert the formerly unexhausted claim, the district court referred the matter to this court as a second or successive application. This court held that the petition was, indeed, an unexcused second or successive application. “[Wjhere a petitioner chose to file an amended petition, he ran the risk of having the subsequent petition dismissed as an abuse of the writ.” Id. at 1195. If the district court’s order is allowed to stand in this case, petitioner’s unexhausted claim may suffer the same fate. For the foregoing reasons, the judgment of the United States District Court for the Western District of Oklahoma is REVERSED and the ease is REMANDED for further proceedings in light of this opinion. Petitioner’s motion to proceed in forma pauperis in this appeal is GRANTED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . We ordered the respondents to file a brief on this issue. In their brief, they candidly conceded the error in the district court’s approach. . \"Anticipatory procedural bar” occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it. See, e.g., Hain v. Gibson, 287 F.3d 1224, 1240 (10th Cir.2002). . A third option suggested by Justice Stevens' opinion in Duncan, of retaining jurisdiction over the petition and staying further proceedings pending the exhaustion of state remedies, was apparently not examined by the district court and is not at issue here. Duncan, 533 U.S. at 182-83, 121 S.Ct. 2120 (Stevens, J., concurring)."
},
{
"docid": "3322423",
"title": "",
"text": "on a blank slate, observing that, although the respondent has not expressly ásserted the defense, it is not waived and may be raised sua sponte. -Albeit true, this approach nonetheless ignores the fact that the district court first raised the issue sua sponte and, in a ruling that remains unchallenged on appeal, held the exhaustion require ment had not been satisfied. It comes as no surprise that respondent has not challenged this conclusion on appeal, for it redounds to respondent’s benefit. Neither is petitioner’s silence on the issue surprising, as he even conceded in his petition that the claim was unexhausted and actually moved the district court to stay proceedings on the petition pending exhaustion of state remedies. Petition for writ of habeas corpus, ¶ 7, J.A. 8. The parties’ reasons for focusing their appellate arguments on the merits of the claim, rather than exhaustion, are thus understandable. Nevertheless, these reasons do not justify our departure from the well-settled rule that issues not raised on appeal are deemed abandoned. See Mitchell v. Chapman, 343 F.3d 811, 825 n. 15 (6th Cir.2003); Security Watch, Inc. v. Sentinel Systems, Inc. 176 F.3d 369, 376 (6th Cir.1999). If the rule is adhered to, then the district court’s finding of non-exhaustion must be left undisturbed. It follows that once we have determined the district court’s denial of the claim on its merits is flawed, but we refrain from remanding the matter for reconsideration based on a fuller factual development, we are left with a finding of non-exhaustion that should, ordinarily, in compliance with 28 U.S.C. § 2254(b)(1) and in the interests of comity, require dismissal of the claim pending exhaustion. See Rockwell v. Yukins, 217 F.3d 421, 424-25 (6th Cir.2000)(vacating judgment granting ha-beas relief and remanding for dismissal without prejudice because petition contained unexhausted claim, even though meritorious claim had been exhausted). Yet, without even mentioning the district court’s treatment of the exhaustion issue, the majority takes it up de novo and finds that the claim is exhausted. In my opinion, the majority’s approach is not only proeedurally improper, but also substantively erroneous. The"
},
{
"docid": "308010",
"title": "",
"text": "the federal courts. 28 U.S.C. § 2254(b)(1)(A); see also Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.1990). There is no dispute that Slutzker has not exhausted his Brady claim. He discovered it in September of 2001, well after his PCRA appeals had terminated, and while his original pro se habeas petition was pending. He never returned to state court with a second PCRA petition, and thus denied the Pennsylvania courts the opportunity to rule on this claim. Under the doctrine of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), federal' courts must dismiss without prejudice habeas petitions that contain any unexhausted claims. The exhaustion requirement does not apply, however, in cases where the state courts would not consider the unex-hausted claims because they are procedurally barred. Doctor v. Walters, 96 F.3d 675, 681 (3d Cir.1996); cf. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993) (“A petition containing unexhausted but procedurally barred claims in addition to exhausted claims, is not a mixed petition requiring dismissal under Rose.”). This conclusion stems from the doctrine that exhaustion is not required where pursuit of state remedies would be futile. Doctor, 96 F.3d at 681; Szuchon v. Lehman, 273 F.3d 299, 323-24 n. 14 (3d Cir.2001); cf. 28 U.S.C. § 2254(b)(1)(B) (excusing exhaustion where “there is an absence of available State corrective process”). Where exhaustion is excused because of this form of futility, the habeas doctrine of procedural default may apply to bar relief. See infra Part II.B.2. The mere existence of a state procedural rule that would appear to bar relief is not, however, sufficient to avoid the exhaustion requirement. The policy behind the exhaustion requirement is to give state courts a full opportunity to address the petitioner’s claims. Doctor, 96 F.3d at 681. Given this, if there is any likelihood that the state courts would consider the merits of a petitioner’s unexhausted claim, the federal courts should dismiss his petition and allow him to seek relief in state courts. Id. at"
},
{
"docid": "22476266",
"title": "",
"text": "petitioner to exhaust his state remedies first. 987 F.2d at 986. There the defendant was convicted in a New Jersey court of various non-capital offenses. After a series of unsuccessful direct appeals to the New Jersey courts and the denial of his motion for post-conviction relief by the state trial court, Toulson filed a federal habeas petition containing unexhausted but procedurally barred claims in addition to exhausted claims. In examining pertinent New Jersey law, we found that it was possible that a New Jersey court may allow state review of otherwise procedurally barred claims based on one of two statutory exceptions to the procedural bar rule. 987 F.2d at 988. Accordingly, we held that “[b]e-cause no state court has concluded that petitioner is procedurally barred from raising his unexhausted claims and state law does not clearly require a finding of default, ... the district court should have dismissed the petition without prejudice for failure to exhaust state remedies.” Id. at 989. Thus, our precedent makes clear that Lambert must exhaust her state remedies before she can seek federal habeas relief unless such an attempt would be futile. Doctor, 96 F.3d at 681 (citing Toulson, 987 F.2d at 987). Futility may be encountered where exhaustion is impossible due to procedural default, i.e., the state court refuses to hear the merits of the claim because either (1) the defendant waived a PCRA claim she could have raised in an earlier proceeding but failed to do so; or (2) some other procedural bar exists, such as a statute of limitations. Doctor, 96 F.3d at 681. Moreover, a federal habeas court may excuse exhaustion because of a procedurally barred claim in state court “only when state law ‘clearly fore-closets] state court review of [the] unexhaust-ed claims.’ Toulson, 987 F.2d at 987.” Doctor, 96 F.3d at 681. We further explained: If the federal court is uncertain how a state court would resolve a procedural default issue, it should dismiss the petition for failure to exhaust state remedies even if it is unlikely that the state court would consider the merits to ensure that, in the"
},
{
"docid": "11268665",
"title": "",
"text": "— the state prisoner could refile the petition at any time following exhaustion of his federal claims. AEDPA changed matters. Its one-year statute of limitations “has rendered outright dismissal perilous to some litigants, because petitioners ... may find themselves time-barred when they attempt to resubmit their exhausted claims to the district court.” Anthony v. Cambra, 236 F.3d 568, 573 (9th Cir.2000). Recognizing the risks attendant to dismissal in the post-AEDPA world, several courts have concluded that a stay is “the right step to take” in cases involving mixed petitions. Newell v. Hanks, 283 F.3d 827, 834 (7th Cir.2002); Zarvela v. Artuz, 254 F.3d 374, 379-80 (2d Cir.2001) (concluding that “the enactment of AEDPA warrants some adjustment in the pre-AEDPA requirement of Rose v. Lundy that mixed petitions be dismissed in their entirety,” and that, “[i]n many cases, a stay will be preferable”); see also Duncan, 533 U.S. at 182-83 (Stevens, J., concurring) (“[I]n our post-AED-PA world there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies.”). But see Graham v. Johnson, 168 F.3d 762, 779-80 (5th Cir.1999) (disapproving of open-ended stays of mixed petitions). Indeed, there is a growing consensus that a stay is required when dismissal could jeopardize the petitioner’s ability to obtain federal review. See, e.g., Zarvela, 254 F.3d at 380 (holding that a stay “will be the only appropriate course” where outright dismissal could jeopardize the timeliness of any subsequent petition); Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000) (“[Dismissal is not appropriate when that step could jeopardize the timeliness of a collateral attack.”); see also Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002) (noting that the Second Circuit’s approach in Zarvela “is eminently reasonable”). Although none of our cases has turned on the question of stay versus dismissal, we have indicated that district courts presented with mixed petitions should take seriously any request for a stay. In Neverson v. Bissonnette, 261 F.3d 120, 126 n. 3 (1st Cir.2001), we noted that “the petitioner could have improved his"
},
{
"docid": "732460",
"title": "",
"text": "the state appellate proceedings reveals that those issues have never been presented to either the Michigan Court of Appeals or the Michigan Supreme Court. IV A In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that 28 U.S.C. § 2254(b) and (c) requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts, “leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.” 455 U.S. at 510, 102 S.Ct. at 1199. Because Petitioner’s application for a writ of habeas corpus contains two unexhausted claims, the Court cannot now consider the merits of the issues presented. B However, in accordance with Rose v. Lundy, the petitioner will be granted leave to amend the petition so as to raise only those claims for which state court remedies have been exhausted. In granting leave to amend, this Court in no way suggests that Petitioner must or should amend his petition. The choice between: (1) amending the petition, deleting the unexhausted claims, or (2) returning to state court to exhaust his other claims is for Petitioner alone. If an amended petition raising only the exhausted claims is not timely filed, the Court will assume that Petitioner intends to seek further relief in the state courts, and will therefore enter a judgment dismissing the petition without prejudice. C I am aware that the recent en banc decision of the Sixth Circuit in Bowen v. State of Tennessee, 698 F.2d 241 (6th Cir.1983) might be construed as implicitly disapproving the practice of granting a habeas petitioner leave to amend a “mixed” petition before dismissing the petition pursuant to Rose v. Lundy. In Bowen, a district court confronted with a mixed petition dismissed the unexhausted issue, but adjudicated the merits of the exhausted claims and denied relief. While the petitioner’s appeal from that decision was pending in the Sixth Circuit,"
},
{
"docid": "23427052",
"title": "",
"text": "of limitations had expired, was voluntarily dismissed without prejudice to allow exhaustion of state remedies, could return to federal court following exhaustion provided that the petitioner filed for state court relief and returned to federal court within “a brief, reasonable time limit.” See id. at 781. We suggested that the petitioner should file in state court within a time period of “ ‘normally 30 days’ ” after the federal dismissal and should return to federal court within “'30 days’ ” of exhaustion. See id. at 781 (quoting and relying on Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, — U.S. -, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001)); see also Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (suggesting that equitable tolling should be available “when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period”). The petitioner in Palmer had neither conformed to the “normal” thirty-day period for returning to federal court nor explained his delay, so this court affirmed the district court’s dismissal. See Palmer, 276 F.3d at 782. Under this analysis, first adopted in Palmer and subsequently applied in Hargrove v. Brigano, 300 F.3d 717, 2002 WL 1842218 (6th Cir.2002), we must determine whether the petitioner is entitled to equitable tolling of the statute of limitations following dismissal to permit exhaustion by examining the petitioner’s subsequent diligence in exhausting state remedies and returning to federal court. As in Palmer, 276 F.3d at 779, and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1, we are faced with a petitioner whose petition was dismissed without prejudice for failure to exhaust state remedies. As in Palmer and Hargrove, we are reviewing a district court’s disposition of such a case prior to our clarification that ordinarily, a district court should stay such unexhausted claims pending exhaustion rather than dismiss them without prejudice for that same purpose. Whether the district court dismissed the petition for failure to exhaust, with an explicit (as in this case and Hargrove, 300 F.3d 717, 2002 WL 1842218, at *1) or implicit (as in Palmer, 276 F.3d"
},
{
"docid": "22170672",
"title": "",
"text": "(quoting Lundy, 455 U.S. at 518, 102 S.Ct. 1198). The court went on to state that “[s]taying the exhausted claims would be a traditional way to ‘defer’ to another court ‘until’ that court has had an opportunity to exercise its jurisdiction over a habeas petitioner’s unexhausted claims.” Id.; see also Duncan v. Walker, 533 U.S. 167, 182-83, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (Stevens, J., with whom Souter, J., joins, concurring in part and in the judgment) (“[Tjhere is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies.”). Similarly, we recently instructed that when dismissal could jeopardize claims potentially barred by AED-PA’s statute of limitations, the district court must so notify the petitioner in order to guarantee the fully informed exercise of his rights. See Valerio v. Crawford, 306 F.3d 742, 771 (9th Cir.2002) (en banc). Specifically, the district court must inform the petitioner that he may amend his petition to delete unexhausted claims, seek a stay of the fully exhausted petition, and then amend his petition to include the deleted claims once they have been fully exhausted in the state courts. See Ford v. Hubbard, 305 F.3d 875, 884 (9th Cir.2002). Furthermore, the district court must inform the petitioner of the status under the statute of limitations of any claims to be dismissed purportedly “without prejudice.” See id. at 884; Ford v. Hubbard, 305 F.3d at 885-86. The Zarvela court suggested that thirty days is sufficient time for a petitioner to return to federal court following final action by the state courts. See Zarvela, 254 F.3d at 381. This seems reasonable. The judgment of the district court is reversed and the case remanded to the district court. If Petitioner chooses to dismiss the unexhausted claims, the district court shall pass on his petition containing only exhausted claims. In the event that the district court exercises its discretion to stay federal proceedings while Petitioner exhausts his dismissed claims, the district court may require Petitioner to file his new state petition within 30 days."
},
{
"docid": "156492",
"title": "",
"text": "it is ridiculous to contend that it would have been either novel or futile for Ewing to have sought post-conviction relief on the ground that his Sixth Amendment rights were violated by the ineffective assistance of appellate counsel. See Evitts, 105 S.Ct. at 837 and n. 9. . Carrier requires dismissal based on failure to exhaust only when, in adjudicating the question of cause, the federal court is required to adjudicate an unexhausted claim. — U.S. at —, 106 S.Ct. at 2646-48. Accordingly, the mere presence of the unexhausted claim does not require dismissal of the petition. In this case, the unexhausted claim might be avoided if the district court determined that Ewing suffered no prejudice, as elucidated in Wainwright v. Sykes, from the procedural default. . There is no basis for treating the petition with respect to the drug trafficking convictions and the petitions with respect to the weapons convictions as one. Both relate to separate and different crimes and different factual situations. The purpose of the mixed-petition dismissal requirement of Rose v. Lundy is to allow the state court the first opportunity to correct constitutional errors. Accordingly, it would make no sense to dismiss a petition which is entirely exhausted because a separate petition dealing with different convictions of the same petitioner contains unexhausted claims. Accordingly, only dismissal of the petition relating to the drug trafficking charges is necessary due to Ewing’s failure to exhaust the issue of ineffective assistance of appellate counsel. If this exhaustion problem is solved, the district court may need to address the existence of cause and prejudice with respect to petitioner’s failure to appeal his denial of post-conviction relief. . We have reached this conclusion in an unpublished disposition with no precedential effect, Sixth Circuit Rule 24, extending the reasoning oi Payne v. Rees, 738 F.2d 118 (6th Cir.1984), to failures to appeal denials of post-conviction relief. Boykins v. Davis, 765 F.2d 144 (6th Cir.1985). Our decision in Payne v. Rees involved a similar fact pattern in which Payne failed to raise issues on direct appeal and then subsequently failed to appeal the"
},
{
"docid": "7611454",
"title": "",
"text": "all of the federal court claims.”). It is true, as Graham points out, that in Brewer, 139 F.3d at 493 (5th Cir.1998), we stated, citing Johnson v. Texas, 878 F.2d 904 (5th Cir.1989), that district courts may either hold an unexhausted petition in abeyance or dismiss it without prejudice. In Brewer, however, the prisoner had been appointed counsel, but had not yet filed a federal habeas application, at the time he sought to have his federal proceeding held in abeyance. See 139 F.3d at 492. Thus, despite its citation to Johnson, the court was not squarely confronted with a situation in which a prisoner seeks to abate an application containing unexhausted claims. Similarly, several other circuits have concluded that district courts should dismiss without prejudice, and not hold in abeyance, habeas applications containing unexhausted claims. See Calderon v. United States Dist. Ct., 144 F.3d 618, 620 (9th Cir.1998) (stating that “a petition with exhausted and unexhausted claims must be dismissed or the unexhausted claims' stricken from the petition,” but permitting amendment of applications to delete unexhausted claims and holding amended petition containing only exhausted claims in abeyance pending exhaustion of deleted claims); Christy v. Horn, 115 F.3d 201, 206-08 (3d Cir.1997); Victor, 90 F.3d at 280-83; see also Morris v. Bell, 124 F.3d 198, No. 96-5510, 1997 WL 560055, *2-*3 (6th Cir. Sept. 5, 1997) (unpublished table decision) (affirming dismissal of federal habeas application for failure to exhaust even where prisoner argued that district court should have abated proceedings so as to prevent application of AEDPA upon post-exhaustion return to federal court), cert. denied, — U.S.-, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998). Thus, there is no general consensus that dismissing a federal habeas application for non-exhaustion is the equivalent of holding it in abeyance pending exhaustion. Certainly the Texas courts have acknowledged a fundamental difference between the two. A district court that holds a habeas petition in abeyance but does not dismiss it retains jurisdiction over the case. See Ex parte Powers, 487 S.W.2d 101, 102 (Tex.Crim.App.1972). Therefore, as a matter of comity, the Texas courts will not consider"
}
]
|
591378 | the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law&emdash; Fed.R.Crim.P. 11(c)(1). Rule 11(c)(1) imposes upon a district court the obligation and responsibility to conduct a searching inquiry into the voluntariness of a defendant’s guilty plea. United States v. Stitzer, 785 F.2d 1506, 1513 (11th Cir.), cert. denied, 479 U.S. 823, 107 S.Ct. 93, 93 L.Ed.2d 44 (1986). Three core concerns underlie this rule: (1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know and understand the consequences of his guilty plea. United States v. Hourihan, 936 F.2d. 508, 511 n. 4 (11th Cir.1991); REDACTED cert. denied, 477 U.S. 904, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986); United States v. Dayton, 604 F.2d 931, 935 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). If one of the core concerns is not satisfied, then the plea of guilty is invalid. Stitzer, 785 F.2d at 1513. Thus, “A court’s failure to address any one of these three core concerns requires automatic reversal.” Id.; Bell, 776 F.2d at 968 (citing McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)); see also Buckles, 843 F.2d at 473. Any variances or deviations from the procedures mandated by Rule 11 which do not affect a defendant’s substantial rights, however, constitute | [
{
"docid": "18774885",
"title": "",
"text": "934 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), this court’s predecessor made a “clear and definitive statement of how trial courts should conduct guilty plea hearings.” Dayton recognized that three core concerns underlie Rule 11: (1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of his plea. 604 F.2d at 939. A court’s failure to address any one of these three core concerns requires automatic reversal. Id. (citing McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969)). In this appeal, Bell claims that the district court “complete[ly]” failed to establish that he understood the nature of the charges against him. He argues that this failure requires automatic reversal and entitles him to replead. We disagree with Bell’s assertion that the district court completely failed to establish Bell’s understanding of the nature of the charges and find no violation of Rule 11. It is well established that the nature of the inquiry required by Rule 11 will vary from case to case. McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. 1166, 1171 n. 20. Courts have declined to set forth a simple or mechanical rule for determining whether or not a defendant is informed of and understands the nature of the charges against him. Dayton, 604 F.2d at 937-938. See also McCarthy, 394 U.S. at 467 n. 20, 89 S.Ct. 1166, 1171 n. 20. Instead, this inquiry is committed to “the good judgment of the court, [and] to its calculation of the relative difficulty of comprehension of the charges and of the defendant’s sophistication and intelligence.” Dayton, 604 F.2d at 938 (footnote omitted). In the present case, Bell had the benefit of a written plea agreement which clearly and concisely set forth the charges. The charges to which Bell pled guilty were “simple” ones. Accord Dayton, 604 F.2d at 942 (possession of marijuana with intent to distribute found to be a “simple charge”). Before accepting the guilty plea,"
}
]
| [
{
"docid": "12918152",
"title": "",
"text": "the factors relevant to that determination so as “to eliminate any need to resort to a later factfinding proceeding in this highly subjective area.” McCarthy, 394 U.S. at 469, 89 S.Ct. at 1172 (quoting in part Heiden v. United States, 353 F.2d 53, 55 (9th Cir.1965)); see also United States v. Daniels, 821 F.2d 76, 80 (1st Cir.1987). Consequently, Rule 11(c) provides that: (c) Advice to Defendant. Before accepting a plea of guilty ... the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... (1) The nature of the charge to which the plea is offered.... Fed.R.Crim.P. 11(c). The plain language of the rule requires the court both to inform the defendant of the nature of the charge and make a determination that he understands it. Mack v. United States, 635 F.2d 20 (1st Cir.1980). The effect of a failure to comply with the requirements of Rule 11 depends upon the nature of the failure. Mere technical violations of its procedural requirements do not warrant setting aside a plea. That is especially true if the defendant was not misled or the omission did not affect his decision. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); United States v. Darling, 766 F.2d 1095, 1098 (7th Cir.), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985); United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Indeed, Rule 11 was amended in 1983 to expressly provide that variances from procedural requirements that do not affect substantial rights constitute harmless error and are to be disregarded. Rule 11(h). On the other hand, a violation that implicates one of the rule’s “core concerns” mandates that the plea be set aside. McCarthy, 394 U.S. at 471-72, 89 S.Ct. at 1173-74; United States v. Cantor, 469 F.2d 435, 437 (3rd Cir.1972). See also ABA Standards for Criminal Justice, Pleas of Guilty §§ 14-1.4 and 14-2.1 (2d ed. 1980 & Supp.1986). It cannot be"
},
{
"docid": "22350753",
"title": "",
"text": "and several other medications containing codeine. Buckles testified that he had informed the judge he was taking cough syrup but had said nothing about the pain killers. Buckles contended that he had only a hazy recollection of the rest of the plea hearing and could not remember what else the judge had asked or told him. Buckles now argues that the district court should have allowed him to withdraw his plea because without the Rule 11 hearing transcript to refute his allegations there was no other evidence for the court to consider. Buckles contends that the absence of a verbatim transcript mandates a reversal and an opportunity for Buckles to “plead anew.” When a defendant decides to plead guilty, Fed.R.Crim.P. 11 requires that a colloquy take place between the judge and the defendant, personally, to ensure the plea is intelligently and voluntarily made, and there is a factual basis for the plea. See United States v. Dayton, 604 F.2d 931, 935 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Rule 11 explicitly directs the district judge not to accept a plea without determining these “core concerns.” Therefore, on review we “are warranted in regarding the court’s acceptance of the plea as a positive finding on each [component of the Rule]_” Dayton, 604 F.2d at 940-41. A verbatim record must be made of the colloquy between the district judge and the defendant at the time of plea proceedings. Fed.R.Crim.P. 11(g). In the case at bar, a verbatim record was made of the Rule 11 proceeding as attested to by the available tape recording. Buckles contends, however, that because the district court could not produce a transcript of the proceeding, his plea should be automatically thrown out. In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), where the district judge completely failed to personally inquire whether the defendant understood the nature of the charge, the Supreme Court held that any noncompliance with Rule 11 constituted reversible error. At that time, however, Rule 11 was a relatively short and"
},
{
"docid": "16205755",
"title": "",
"text": "district court’s upward departure was not reasonable in length. Because we reverse the conviction based upon the court’s noncompliance with the requirements of Federal Rule of Criminal Procedure 11(c)(1), we do not reach the issues on sentencing set forth in part B above. II. Hekimain argues that his guilty plea is invalid and his conviction must be reversed because the district court failed to comply with the requirements of Fed.R.Crim.P. 11(c)(1). Rule 11 reads, in pertinent part, as follows: (c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the Defendant understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term, the fact that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances ... (emphasis added). This circuit has identified three “core concerns” under Rule 11: (1) whether the guilty plea was coerced; (2) whether the defendant understands the nature of the charges; and (3) whether the defendant understands the consequences of the plea. See United States v. Shacklett, 921 F.2d 580, 582 (5th Cir.1991); United States v. Bernal, 861 F.2d 434, 436 (5th Cir.1988). When a district court completely fails to address one of these concerns, the defendant’s substantial rights have been affected and Rule 11 requires automatic reversal, Bernal, 861 F.2d at 436; United States v. Corbett, 742 F.2d 173, 178 (5th Cir.1984). If the core concerns are met, however, an “inadequate address” or less than “letter-perfect” compliance with Rule 11 may be excused under a harmless error standard. Bernal, 861 F.2d at 436; see also United States v. Dayton, 604 F.2d 931, 939-40 (5th Cir.1979) (en banc). cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). A. District Courts Failure to Inform Hekimain Personally of the Maximum Penalty for the"
},
{
"docid": "1073446",
"title": "",
"text": "made and that a full record will be available in the event that a challenge is made to the plea.” United States v. Adams, 634 F.2d 830, 837 (5th Cir.1981). To this end, Rule 11 specifies a long list of substantive and procedural requirements to be observed before a guilty plea is accepted. This Court does not, however, require “letter-perfect” compliance with all of these requirements. See United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Indeed, in 1983 Rule 11(h) was added to ensure application of a harmless error rule in appeals based on noncompliance. In Dayton, we held en banc that if the three core concerns of Rule 11 are met— that the guilty plea is free from coercion, that the accused understands the nature of the charges against him, and that the accused knows the direct consequences of his guilty plea — there is no violation of the body or spirit of Rule 11. Dayton, supra, at 939-40. We found that reversible error exists only when there is an “entire failure” to address any of the three core concerns of Rule 11. Id. at 939-40. However, an “inadequate address,” or less than “letter-perfect” compliance with Rule 11, is harmless error if the three core concerns are met and the accused has shown a desire “to come to terms with the legal system, and to admit his fault.” Id. at 940. We noted that an earlier intimation by the Supreme Court that “prejudice inheres in a failure to comply with Rule 11,” McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 1173, 22 L.Ed.2d 418 (1969), concerned a much simpler version of Rule 11 than the Rule at issue in Dayton. Dayton, supra, at 939-40. McCarthy, we found, was concerned with the core values of Rule 11 and should not be extrapolated to require strict compliance with the “punctil-ios” of a now greatly expanded and more detailed Rule 11. Id. at 940. The dissent in Dayton disagreed with this analysis, observing that"
},
{
"docid": "9638945",
"title": "",
"text": "charge to which the plea is offered. Fed.R.Crim.P. 11(c)(1). In United States v. Dayton, 604 F.2d 931 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), this Court set out a number of clear and definite guidelines governing the conduct of guilty plea hearings, and the standards for reviewing these hearings on appeal. In Dayton, we stated that: (1) The requirement that the judge personally inform the defendant of the nature of the charge against him, and determine that he understands it, is a “core concern” of Fed.R.Crim.P. 11. (2) The entire failure by the court to address this core concern requires automatic reversal under McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). (3) In some cases, mere failure to adequately address this core concern may authorize further examination of the alleged omission in light of the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). (4) For simple charges, “a reading of the indictment, followed by an opportunity given the defendant to ask questions about it, will usually suffice” to discharge the judge of his obligation to personally inform the defendant of the nature of the charge against him. (5) Charges of a more complex nature may require further explanation. Dayton, 604 F.2d at 939. In Dayton, defendants pleaded guilty to charges of possessing a controlled substance with intent to distribute. The district court judge in that case read them the relevant counts of the indictment: [COUNT 19] That on or about August 15, 1976, in the Western District of Texas, [defendant] did unlawfully, knowingly and intentionally possess with intent to distribute approximately six hundred pounds of marihuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section 841(a)(1). [COUNT 28] That on or about December 7,1976, in the Western District of Texas, [defendant] did unlawfully, knowingly and intentionally possess with intent to distribute approximately one thousand pounds of marihuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section"
},
{
"docid": "17373505",
"title": "",
"text": "him to plead guilty. Finally, Gomez testified he entered the guilty plea voluntarily and willingly. Gomez now asserts the court failed to comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure during the plea hearing. The issue of whether a district court has complied with Rule 11 before accepting a guilty plea is primarily a question of law subject to de novo review. See United States v. Rhodes, 913 F.2d 839, 843 (10th Cir.1990) (to be reported at 913 F.2d 839); United States v. Jamarillo-Suarez, 857 F.2d 1368, 1369 (9th Cir.1988). A defendant’s guilty plea must be knowing and voluntary. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969). Rule 11 prescribes procedures designed to ensure that pleas are entered knowingly and voluntarily. We agree with the Fifth Circuit that “the values lying at the heart of the rule’s concerns [are] absence of coercion, understanding of the accusation, and knowledge of the direct consequences of the plea.” United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en bane), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 and cert. denied sub nom. Flanagan v. United States, 445 U.S. 971, 100 S.Ct. 1665, 64 L.Ed.2d 249 (1980). These three concerns guide us as we review Gomez’ allegations of error in light of the harmless error analysis required by Rule 11(h). See, e.g., United States v. Barry, 895 F.2d 702, 704 (10th Cir.) (court need not vacate appellant’s conviction and sentence unless substantial rights affected), cert. denied, — U.S. -, 110 S.Ct. 3222, 110 L.Ed.2d 669 (1990); United States v. Vance, 868 F.2d 1167, 1172 (10th Cir.1989) (when record does not show that court’s failure to inform defendant of possible restitution affected his decision to plead guilty, error is harmless). First, Gomez argues that the district court failed to advise him fully of the nature of the charge, as Rule 11(c)(1) requires. In Stinson v. Turner, 473 F.2d 913, 916 (10th Cir.1973), this court held a district court may satisfy Rule 11 and the Constitution by explaining"
},
{
"docid": "15657734",
"title": "",
"text": "v. United States, 604 F.2d at 372; Lambert v. United States, 600 F.2d 476, 477 (5th Cir. 1979). Before it was amended in 1966 and in 1975, Rule 11 provided that a federal court shall not accept the plea [of guilty] without first determining that the plea is made [1] voluntarily [2] with understanding of the nature of the charge. The court was also required to determine [3] that the defendant entered the plea with comprehension of its consequences. Kercheval v. United States, 274 U.S. 220, 223-24, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). See United States v. Dayton, 604 F.2d 931, 934-35 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). A 1966 amendment required the court to address the defendant personally in making these determinations. Three years later, the Supreme Court ruled in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), that on direct review the court must reverse a defendant’s guilty plea and accord the defendant another opportunity to plead if the trial court did not personally ask the defendant whether these three requirements were met. Id. at 463-64, 89 S.Ct. at 1169. McCarthy was based on the application of Rule 11, not on constitutional grounds, and the Supreme Court refused to apply it retroactively. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). A 1975 amendment added numerous requirements to the rule, but the McCarthy rule of automatic plea reversal on direct review for violation of the three “core” considerations of the rule does not extend to harmless noncompliance with those technical requirements. United States v. Caston, 615 F.2d 1111, 1115 (5th Cir. 1980); United States v. Dayton, 604 F.2d at 939. Wright pleaded guilty in 1965 to count 5 of the indictment against him. He now asserts that the court did not determine whether he entered his plea voluntarily. Before McCarthy and the amendments to Rule 11, this court “repeatedly stated that determination by the trial court that the plea was made voluntarily need not"
},
{
"docid": "12918153",
"title": "",
"text": "not warrant setting aside a plea. That is especially true if the defendant was not misled or the omission did not affect his decision. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); United States v. Darling, 766 F.2d 1095, 1098 (7th Cir.), cert. denied, 474 U.S. 1024, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985); United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Indeed, Rule 11 was amended in 1983 to expressly provide that variances from procedural requirements that do not affect substantial rights constitute harmless error and are to be disregarded. Rule 11(h). On the other hand, a violation that implicates one of the rule’s “core concerns” mandates that the plea be set aside. McCarthy, 394 U.S. at 471-72, 89 S.Ct. at 1173-74; United States v. Cantor, 469 F.2d 435, 437 (3rd Cir.1972). See also ABA Standards for Criminal Justice, Pleas of Guilty §§ 14-1.4 and 14-2.1 (2d ed. 1980 & Supp.1986). It cannot be disputed that an adequate explanation of the charge and a determination that the defendant understands it are two of those core concerns. McCarthy, 394 U.S. at 467, 471, 89 S.Ct. at 1171, 1173; see United States v. Buckles, 843 F.2d 469, 473 (11th Cir.1988), cert. denied, 490 U.S. 1099, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989); Mack, 635 F.2d at 23. There is no talismanic test for determining whether the core concerns of Rule 11 have been satisfied. The manner in which the charge is explained and the method for determining the defendant’s understanding necessarily vary from case to case depending upon the capacity of the defendant and the attendant circumstances. Dayton, 604 F.2d at 937-38; Rule 11 Advisory Committee Notes; Wright and Miller, Federal Practice and Procedure § 173 at 587-88 (2d ed. 1982 & Supp.1990). In making that determination, the court should not exalt form over substance but should look to the reality of the situation as opposed to the ritual. United States v. Bell, 776 F.2d 965, 971 (11th Cir.1985), reh’g denied,"
},
{
"docid": "23208993",
"title": "",
"text": "and Shisoff forced Agent Bennet onto a bed and tied his hands and feet with duct tape. As they were attempting to tape his mouth shut, other agents broke into the room and arrested Steven DePace, Dellamonica and Shisoff. The agents recovered three loaded firearms in the room. Agents arrested Carlton DePace sitting in a van in the hotel parking lot after he admitted that he was acting as a lookout for the group. He later confessed that his role was to block the parking lot if anything went awry with the plan. II. On this direct appeal, Steven and Carlton DePace contend that the district court failed to comply with Fed.R.Crim.P. 11(c)(1) when it accepted their guilty pleas. Rule 11(c) provides: (e) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands the following: (1) the nature of the charge to which the plea is offered. An appellate court must review the record of the Rule 11 hearing as a whole, and the “district court’s implicit factual finding that the requirements of Rule 11 were satisfied when it accepted the defendants’ pleas is subject to the clearly erroneous standard of review.” United States v. Lopez, 907 F.2d 1096, 1099 (11th Cir.1990); accord United States v. Siegel, 102 F.3d 477, 480 (11th Cir.1996). “Rule 11(c)(1) imposes upon a district court the obligation and responsibility to conduct a searching inquiry into the voluntariness of a defendant’s guilty plea.” Siegel, 102 F.3d at 481 (citing United States v. Stitzer, 785 F.2d 1506, 1513 (11th Cir.1986)). Three core concerns underlie this rule: “(1) the guilty plea must be free of coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of the plea.” United States v. Hourihan, 936 F.2d 508, 511 n. 4 (11th Cir.1991). A “court’s failure to address any one of these three core concerns requires automatic reversal.” United States v. Bell, 776 F.2d 965, 968 (11th Cir.1985). Appellants"
},
{
"docid": "23196045",
"title": "",
"text": "that his conviction is based on mere association and mere presence and that the only evidence produced at trial against him was the testimony of witness Siegel who, according to Stitzer, “testified that he thought Appellant was a source of cocaine due to statements made by Jonathan Scott Baldwin,” and the testimony of witness Mirdjani who “testified that all of his' knowledge of Appellant’s alleged drug dealings came from the statements made by Baldwin.” We agree with the government that appellant distorts the testimony of Siegel. Contrary to Stitzer’s claim that Siegel’s testimony was based on hearsay, Siegel testified that he saw Stitzer bring a tinfoil-wrapped sample of cocaine to Baldwin’s house in late October 1982. Viewing the evidence as a whole, and in the light most favorable to the government, we find that a jury could have found beyond a reasonable doubt that appellant was guilty of conspiracy as charged in the indictment. The judgments are AFFIRMED. . Federal Rule of Criminal Procedure 11(d) provides: Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the attorney for the government and the defendant or his attorney. . The three core concerns of Rule 11 are: (1) the guilty plea must be free from coercion; (2)-the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of his plea. United States v. Dayton, 604 F.2d 931, 935 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). . Appellant filed his motion to withdraw his guilty plea after three of his co-defendants had been sentenced but prior to his own sentencing. . We give considerable weight to this factor. See United States v. Barrett, 514 F.2d"
},
{
"docid": "23119160",
"title": "",
"text": "guilty pleas taken in federal courts will be constitutionally valid and that a complete record will be created for appellate review. McCarthy does not hold that any provision in Rule 11 or any particular remedy for its violation is constitutionally required; the decision is based solely on the Court’s construction of Rule 11 and made pursuant to the Court’s supervisory power over the lower federal courts. 394 U.S. at 464, 89 S.Ct. at 1169-1170. At the time McCarthy was decided, Rule 11 was a relatively short pronouncement aimed at a small number of core concerns, all involving the validity of guilty pleas. McCarthy v. United States, supra at 462 n.4, 89 S.Ct. at 1169 n.4. Thus, the Rule required the district court to (1) personally address the defendant to determine whether the plea was made voluntarily; (2) personally address the defendant to determine whether the plea was made with an understanding of the charges and of the potential consequences; and (3) satisfy itself (not necessarily by addressing the defendant) that a factual basis existed for the plea. Rule 11 has since been expanded, however, to more than ten-fold its length at the time of McCarthy; it now requires not only a general inquiry by the court into the Rule’s core concerns, but prescribes in addition a number of specific statements to be made to the defendant and questions to be asked of him. Fed.R.Crim.P. 11(c), (d) and (f). Only recently, in United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), we considered the applicability of McCarthy to this much expanded form of Rule 11. We determined that only a neglect of one of the Rule’s core concerns (i. e., lack of coercion, comprehension of the charge, and knowledge of the plea’s direct consequences) would mandate a right to replead in the absence of a showing of actual prejudice. 604 F.2d at 940. See United States v. Almaguer, 620 F.2d 557, (5th Cir. 1980); United States v. Caston, 615 F.2d 1111 (5th Cir. 1980). Thus, the"
},
{
"docid": "6319551",
"title": "",
"text": "■ cretion in denying the subsequent motion to withdraw the guilty plea? The basis for the attack under Rule 11 is not that the District Court failed to admonish the appellant as to any specific area required by the Rule. Rather, Rodriguez-DeMaya asserts that based on the overriding language barrier there was an overall lack of understanding on her part because ' she believed that she could not contest the affidavits of the government and was not aware of her right to defend herself. Since she entered her plea based upon a mistake, she argues that under F.R.Crim.P: 32(d) she should have been permitted to withdraw the plea. II. Accepting Guilty Pleas Rule 11 enumerates those warnings that must be given to a defendant before a plea of guilty may be accepted by the trial court. The defendant must understand the nature of the plea and its consequences and such plea must be voluntary. The three core requirements of Rule 11 are: (1) absence of coercion; (2) understanding of the accusation; and (3) knowledge of the direct consequences of the plea. United States v. Dayton, 604 F.2d 931, 939 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). The failure of the District Court to address any one or more of these three considerations generally requires automatic reversal under McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Dayton, supra. In this case, Rodriguez-DeMaya contends that she was not made aware of those rights under Rule 11(c)(3), namely, the right to plead not guilty and the right to confront and cross-examine witnesses. To determine if the District Court complied with the requirements of Rule 11, we look not only at the transcript of the arraignment but also at the transcript of the subsequent hearing to withdraw the plea since at that hearing, the District Court had to determine if the plea of guilty, previously entered, had been knowing and voluntary. Thus the arraignment and the subsequent hearing together reflect what the knowledge and understanding of Rodriguez-DeMaya were."
},
{
"docid": "23042411",
"title": "",
"text": "required by 11(f). We must therefore determine whether the court committed reversible error in accepting her plea. B. Harmless Error. We review a district court’s failure to comply with Rule 11 for harmless error under Rule 11(h). The inquiry is whether any variance from the procedures required by Rule 11 affects the substantial rights of the defendant. United States v. Bernal, 861 F.2d 434, 436 (5th Cir.1988), cert. denied, 493 U.S. 872, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989); United States v. Corbett, 742 F.2d 173, 178 & n. 14 (5th Cir.1984). This circuit has identified three “core concerns” under Rule 11: (1) whether the guilty plea was coerced; (2) whether the defendant understands the nature of the charges; and (3) whether the defendant understands the consequences of the plea. See United States v. Shacklett, 921 F.2d 580, 582 (5th Cir.1991); Bernal, 861 F.2d at 436. When a district court completely fails to address one of these concerns, the defendant’s substantial rights have been affected and Rule 11 requires automatic reversal. Bernal, 861 F.2d at 436; Corbett, 742 F.2d at 178. If the core concerns are met, however, an “inadequate address” or less than “letter-perfect” compliance with Rule 11 may be excused under a harmless error standard. Bernal, 861 F.2d at 436; see also United States v. Dayton, 604 F.2d 931, 939-40 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). We recognize, of course, that the three core concerns are not the sole “substantial rights” that Rule 11 protects. As this court observed in Shacklett, the mere fact that a Rule 11 violation fails to implicate one of the core concerns does not in itself mean that the violation is harmless. 921 F.2d at 582. Even then the question remains whether the violation affects the substantial rights of the defendant,- id.; see also Dayton, 604 F.2d at 940 (violations of technical requirements of Rule 11. are subject to harmless error analysis, but are not always harmless), and the appellate court must conduct an independent examination of the effect of the error on"
},
{
"docid": "23208994",
"title": "",
"text": "the record of the Rule 11 hearing as a whole, and the “district court’s implicit factual finding that the requirements of Rule 11 were satisfied when it accepted the defendants’ pleas is subject to the clearly erroneous standard of review.” United States v. Lopez, 907 F.2d 1096, 1099 (11th Cir.1990); accord United States v. Siegel, 102 F.3d 477, 480 (11th Cir.1996). “Rule 11(c)(1) imposes upon a district court the obligation and responsibility to conduct a searching inquiry into the voluntariness of a defendant’s guilty plea.” Siegel, 102 F.3d at 481 (citing United States v. Stitzer, 785 F.2d 1506, 1513 (11th Cir.1986)). Three core concerns underlie this rule: “(1) the guilty plea must be free of coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of the plea.” United States v. Hourihan, 936 F.2d 508, 511 n. 4 (11th Cir.1991). A “court’s failure to address any one of these three core concerns requires automatic reversal.” United States v. Bell, 776 F.2d 965, 968 (11th Cir.1985). Appellants argue that the district court did not ensure that they understood the nature of the charge of using and carrying a handgun during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(e). Appellants never actually possessed handguns but were charged with aiding and abetting their co-defendants who had used handguns in the attempted theft of the marijuana from the undercover D.E.A. Agent. The government counters that the colloquy satisfied Rule 11 and alternatively that any Rule 11 violation was harmless. A review of the Rule 11 colloquy as a whole reveals that the district court did inquire into the DePaces’ understanding of the charges to which they were pleading guilty. The district court first inquired into the De-paces’ educational background. They responded as follows: MR. C. DePACE: I also finished high school and have about forty college credits. MR. S. DePACE: I graduated High School, and I have college credits and technical school. This inquiry established that the DePaces were intelligent people fully capable of understanding the nature of"
},
{
"docid": "14813124",
"title": "",
"text": "under Rule 11(h). In light of our conclusion that the instant error is not harmless, we need not address an issue which has divided the circuits — i.e., whether Rule 11(h) is applicable in a situation where the district court completely fails to address a “core concern” of Rule 11. The new Fifth Circuit has applied Rule 11(h) in light of the three core concerns of Rule 11 identified in United States v. Dayton, 604 F.2d 931, 935 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), which are: (1) the guilty plea must be free from coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant must know the consequences of the plea. The new Fifth Circuit has held that Rule 11(h) is wholly inapplicable when the district court completely fails to address a core concern. United States v. Pierce, 893 F.2d 669, 678-79 (5th Cir.1990); United States v. Bernal, 861 F.2d 434, 436 (5th Cir.1988), reh’g denied, 871 F.2d 490 (5th Cir.), cert. denied,-U.S.-, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). Other circuits have rejected this approach and simply apply Rule 11(h) to all Rule 11 violations. See, e.g., Young, 927 F.2d at 1062-63; United States v. Lovett, 844 F.2d 487 (7th Cir.1988); United States v. Gonzalez, 820 F.2d 575 (2d Cir.1987); United States v. De Le Puente, 755 F.2d 313 (3d Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 524, 88 L.Ed.2d 456 (1985); United States v. Kearney, 750 F.2d 787 (9th Cir.1984). Although the Tenth Circuit will apparently apply Rule 11(h) to the Rule 11 core concerns identified in Dayton, it will nevertheless use the core concerns to “guide\" is harmless error analysis. United States v. Gomez-Cuevas, 917 F.2d 1521, 1525 (10th Cir.1990). . See also United States v. Dayton, 604 F.2d at 938-39 (“It will be a rare case and one that we cannot presently envisage in which we look beyond the transcript of the arraignment in passing on an appeal after a guilty plea.”) Cases decided by the former Fifth Circuit prior"
},
{
"docid": "23607867",
"title": "",
"text": "before accepting a guilty plea the district court shall address the defendant in open court and inform him of, and determine that he understands “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law....” Fed.R.Crim.P. 11(c)(1). The government concedes that the district court wholly failed to comply with this provision. The government argues, however, that the court’s failure was harmless error because the indictment informed Evans of the minimum and maximum penalties. We disagree. Rule 11(h), the harmless error provision of Rule 11, provides that “[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded.” However, we have previously held that a complete failure of the district court to address one or more of the core requirements of Rule 11 ordinarily requires reversal and will not be treated as harmless error. United States v. Dayton, 604 F.2d 931, 939 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Rule 11(h) does not change this analysis. United States v. Bernal, 861 F.2d 434, 437 (5th Cir.1988), cert. denied, - U.S. -, 110 S.Ct. 203, 107 L.Ed.2d 156 (1989). In this case there has been a complete failure to address Rule ll’s core requirement that the defendant be informed of and understand the direct consequences of his plea. United States v. Dayton, 604 F.2d at 939. The court’s failure to address Evans in open court and inform him of the possible maximum and mandatory minimum sentence provided by law went to the heart of this requirement. See id. at 937; Fed.R.Crim.P. 11 Advisory Committee’s Note to 1974 Amendments. This case stands alongside United States v. Molina-Uribe, 853 F.2d 1193, 1199-1200 (5th Cir.1988), in which we vacated a guilty plea because the trial court did not advise the defendant of the statutory special parole term, which like the mandatory minimum and maximum sentences, is specifically covered by Rule 11(c)(1). Accordingly, the harmless error analysis of Rule 11(h) does not apply in this case, and the district court’s failure to comply with"
},
{
"docid": "23620755",
"title": "",
"text": "his involvement in a drug distribution conspiracy. The test for whether there is a sufficient factual basis for a guilty plea is subjective. United States v. Montoya-Camacho, 644 F.2d 480, 486 (5th Cir.1981), citing United States v. Dayton, 604 F.2d 931, 938 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). Judge Foreman stated that: the Court feels the defendant is fully competent and capable of entering an informed plea, and that he knowingly and voluntarily does so, and that the same is supported by an independent basis of fact not only from his own statements but those representations made by the Assistant U.S. Attorney. And they contain the essential elements of the offense. Plea Tr. 29. The evidence and statements relied on by Judge Foreman, and the procedure he used to establish a sufficient factual basis, clearly conform to the requirements of Rule 11(f). B. Musa also argues that the district judge failed to determine that he understood the nature of the charge, as required by Rule 11(c)(1). Musa contends that because the judge did not read the indictment to him, did not explain to him the elements of conspiracy to ensure he understood the charge, and misstated the statutory minimum sentence under 21 U.S.C. § 841(b), the court accepted his plea in violation of Rule 11(c)(1), and thus his constitutional right to due process. The relevant language of the rule provides: Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following: (1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.... Fed.R.Crim.P. 11(c)(1). The procedure under subsection (c)(1) is designed to ensure that the defendant knowingly and voluntarily enters a plea of guilty, which plea is an admission of all of the elements of the crime charged. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct."
},
{
"docid": "9638944",
"title": "",
"text": "to withdraw the plea. Sentencing was postponed accordingly, and upon his return from vacation, Punch’s lawyer filed a formal motion to withdraw the plea under Fed.R.Crim.P. 32(d). After hearing oral argument, the court denied the motion and sentenced Punch to concurrent four year terms on Counts III and IV. The court relied on its discretionary power to deny the motion, reasoning that: (1) Punch was ably represented by counsel at the Rule 11 proceeding; (2) Punch was afforded every constitutional safeguard; and (3) all of the participants in the proceeding fully understood what was going on. ANALYSIS: Core Concerns Punch argues on appeal that his conviction must be reversed because the district court failed to properly inform him of the elements of the offense to which he pleaded guilty. Rule 11(c)(1) of the Federal Rules of Criminal Procedure provides in pertinent part: Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, ... the nature of the charge to which the plea is offered. Fed.R.Crim.P. 11(c)(1). In United States v. Dayton, 604 F.2d 931 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980), this Court set out a number of clear and definite guidelines governing the conduct of guilty plea hearings, and the standards for reviewing these hearings on appeal. In Dayton, we stated that: (1) The requirement that the judge personally inform the defendant of the nature of the charge against him, and determine that he understands it, is a “core concern” of Fed.R.Crim.P. 11. (2) The entire failure by the court to address this core concern requires automatic reversal under McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). (3) In some cases, mere failure to adequately address this core concern may authorize further examination of the alleged omission in light of the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). (4) For simple charges, “a reading of the"
},
{
"docid": "23428810",
"title": "",
"text": "that he had heard the court’s colloquy with Beru-vides on the RICO count and fully understood the count. B. Discussion The Supreme Court has held that “if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969); see United States v. Dayton, 604 F.2d 931, 934-35 (5th Cir.1979) (en banc) (describing knowledge and volun-tariness requirements as “core considerations ... that manifestly must lie at the heart of any respectable [guilty plea] system”), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). In order to ensure that a defendant’s guilty plea is knowing, Rule 11 requires that the court “address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... the nature of the charge to which the plea is offered” and the potential consequences of the plea. Fed.R.Crim.P. 11(c); see McCarthy, 394 U.S. at 464, 89 S.Ct. at 1170; United States v. Buckles, 843 F.2d 469, 473 (11th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2450, 104 L.Ed.2d 1005 (1989). Here, there is no contention that the defendants’ pleas were involuntary or that they did not understand the consequences of their pleas. The crux of this issue is whether the district judge’s Rule 11 colloquy with the defendants was sufficient to ensure that their pleas were knowingly entered. The district court’s implicit factual finding that the requirements of Rule 11 were satisfied when it accepted the defendants’ pleas is subject to the clearly erroneous standard of review. Frank v. Blackburn, 646 F.2d 873, 881-82; (5th Cir.1980) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981); Dayton, 604 F.2d at 940-41; United States v. Jack, 686 F.2d 226, 229 (5th Cir.1982). Our precedent dictates that we must review the record of the Rule 11 hearing as a whole and affirm the district court if the record provides a basis for the court’s finding that the"
},
{
"docid": "6319552",
"title": "",
"text": "the direct consequences of the plea. United States v. Dayton, 604 F.2d 931, 939 (5th Cir. 1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980). The failure of the District Court to address any one or more of these three considerations generally requires automatic reversal under McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Dayton, supra. In this case, Rodriguez-DeMaya contends that she was not made aware of those rights under Rule 11(c)(3), namely, the right to plead not guilty and the right to confront and cross-examine witnesses. To determine if the District Court complied with the requirements of Rule 11, we look not only at the transcript of the arraignment but also at the transcript of the subsequent hearing to withdraw the plea since at that hearing, the District Court had to determine if the plea of guilty, previously entered, had been knowing and voluntary. Thus the arraignment and the subsequent hearing together reflect what the knowledge and understanding of Rodriguez-DeMaya were. The appellant contends that the acceptance of the guilty plea was defective because she did not comprehend what was happening. In particular, Rodriguez-DeMa-ya relies on the judge’s question whether she was understanding and her response that she was understanding “not very much” and “a little bit”. From this, the appellant contends that since she did not realize the rights that she was waiving, the guilty plea was not knowingly made. This Court has made clear what is required of a District Court under Rule 11. What is necessary is that the trial court, given the nature of the charges and the character and capacities of the defendant, personally participate in the colloquy mandated by Rule 11 and satisfy [itself] fully that, within those limits, the defendant understands what he is admitting and what the consequences of that admission may be, as well as that what he is admit ting constitutes the crime charged, and that his admission is voluntarily made. Dayton, 604 F.2d at 943. We think it is clear that the District Court, aware"
}
]
|
287463 | reliable, and have no basis in scientific principles or method. See Response at 38. The Defendants also argue that the Plaintiffs’ expert, Dr. Lanier, offers statistical evidence only as to annual pay, and that his analysis fails to offer significant proof of a common question amenable to a class-wide resolution. See Response at 39. 30. The Defendants assert that, to establish a prima facie case of disparate impact discrimination, plaintiffs must show that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group, Apsley v. Boeing Co., 691 F.3d 1184, 1206-07 (10th Cir. 2012)(af-firming district court’s conclusion that employees could not show that they had suffered a significant disparate impaet)(citing REDACTED and that Dr. Lanier fails to show causation. See Response at 40. 31. The Defendants assert that the Plaintiffs’ anecdotal evidence of gender discrimination is inadequate to establish class-wide disparate treatment. See Response at 44. The Defendants argue that the Plaintiffs revert to anecdotal evidence of supposed hostility and discrimination toward women through EEOC charges and civil complaints that contain mere allegations and conclusions. See Response at 44. The Defendants argue that this evidence is not amenable to class-wide proof and resolution. See Response at 46. 32. The Defendants argue that the Plaintiffs fail to satisfy rule 23(a)(3)’s requirement that the representative parties’ claims or defenses are typical of the class claims or defenses and rule 23(a)(4)’s requirement that | [
{
"docid": "1033284",
"title": "",
"text": "Court clarified that the “scope of disparate-impact liability under ADEA is narrower than under Title VII.” 125 S.Ct. at 1540, 1544. Indeed, the Court held that while the Civil Rights Act of 1991 expanded an employer’s exposure to liability on a disparate impact theory in Title VII, these 1991 amendments did not affect ADEA or “speak to the subject of age discrimination.” Id. at 1545. Therefore, the Court’s narrower pre-1991 interpretation of disparate impact liability, as articulated in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), “remains applicable to the ADEA.” Smith, 125 S.Ct. at 1545. This Wards Cove framework requires that “[t]o establish a prima facie case of disparate impact discrimination, plaintiffs must show that a specific identifiable employment practice or policy caused a significant disparate impact on a protected group.” Ortega, 943 F.2d at 1242; see also Wards Cove, 490 U.S. at 655-56, 109 S.Ct. 2115. Thus, an employee must point to both a significant disparate impact and to a particular policy or practice that caused the disparity. Moreover, “it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is ‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’ ” Smith, 125 S.Ct. at 1545 (quoting Wards Cove, 490 U.S. at 656, 109 S.Ct. 2115) (emphasis original). In the pre-1991 disparate impact claims under Title VII, once a plaintiff successfully asserted a prima facie case of disparate impact discrimination, the burden of production shifted to the employer to produce evidence of “business necessity” for the challenged practice. Ortega, 943 F.2d at 1243 (quotation omitted). Once such evidence was produced, the plaintiff had the ultimate burden of persuading the factfin-der that “other tests or selection devices, without a similarly undesirable discriminatory effect, would also serve the employer’s legitimate [business] interests” and be “equally effective” in achieving those goals. Id. at 1244 (quotations omitted). However, the ADEA test for disparate impact departs from"
}
]
| [
{
"docid": "5357851",
"title": "",
"text": "bias against women faculty and, in this case, only two women from the entire faculty would have met the criteria for the award, yet many more men would have been eligible.” In order to advance a disparate impact claim, the plaintiff must first establish a prima facie case by proving by a preponderance of the evidence that the employment policy or practice had an adverse disparate impact on women on the basis of their gender. 42 U.S.C. § 2000(e) — 2(k) (1) (A) (i); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-87, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988); Scherr v. Woodland Sch. Cmty. Consol. Dist. No. 50, 867 F.2d 974, 979 (7th Cir.1988). The plaintiff must first “isolate and identify ‘the specific employment practices that are allegedly responsible for any observed statistical disparities’ ”, and second demonstrate causation by offering “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotion because of their membership in protected group.” Bennett v. Roberts, 295 F.3d 687, 698 (7th Cir.2002) (citations omitted); Vitug v. Multistate Tax Comm’n, 88 F.3d 506, 513 (7th Cir.1996). Although Dr. Farrell identifies two practices which she argues have a disparate impact against women faculty, she fails to establish a prima facie case of disparate impact discrimination. Specifically, Dr. Farrell asserts that the eligibility requirements and the candidate evaluation methods for the PEP award have a disparate impact against women faculty members at Butler. With respect to the eligibility requirements, Dr. Farrell has failed to show that she was injured by Butler’s employment practice. To have standing to bring a disparate impact claim, a plaintiff must show that she was personally injured by the defendant’s alleged discriminatory practice. Melendez v. Ill. Bell Tel. Co., 79 F.3d 661, 668 (7th Cir.1996); see also Carpenter v. Bd. of Regents of the Univ. of Wis. Sys., 728 F.2d 911, 915 (7th Cir.1984) (affirming dismissal of disparate impact claim where plaintiff failed to show that the university’s practice of considering candidates for tenure after seven"
},
{
"docid": "3946654",
"title": "",
"text": "likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” 489 U.S. at 390, 109 S.Ct. 1197. As stated above, Appellants fall far short of making this showing. Because Appellants have failed to show deliberate indifference based on lack of training, we affirm summary judgment on their intentional discrimination claim. b. Disparate Impact Appellants contend APS’s policies and failure to train its officers produced a dis parate impact on disabled children. APS argued and the district court determined that Appellants .waived this argument because they failed to include it in their complaint. The district court also concluded the argument failed because Appellants failed to raise a genuine issue of material fact regarding disparate impact. We agree on both grounds. “Unlike a claim for disparate treatment, a claim for disparate impact doesn’t require proof of intentional discrimination.” Cinnamon Hills, 685 F.3d at 922; see also Raytheon Co. v. Hernandez, 540 U.S. 44, 52, 124 S.Ct. 513, 157 L.Ed.2d 357, (2003). “To prove a case of disparate impact discrimination, the plaintiff must show that ‘a specific policy caused a significant disparate effect on a protected group.’ ” Cinnamon Hills, 685 F.3d at 922 (quoting Reinhart v. Lincoln Cty., 482 F.3d 1225, 1229 (10th Cir.2007)). “This is generally shown by statistical evidence involving the appropriate comparables necessary to create a reasonable inference that any disparate effect identified was caused by the challenged policy and not other causal factors.” Id. (quotation and alterations omitted). Moreover, a disparate impact claim must allege a pattern or practice of discrimination, not merely an isolated instance of it. Apsley v. Boeing Co., 691 F.3d 1184, 1200 (10th Cir.2012). Appellants waived this basis for ADA liability by omitting it from their complaint. Moreover, despite Appellants’ assertion that APS’s failure to train led to “disabled children, like C.V., [being] handcuffed and restrained for manifestations of their disabilities,” Aplt. Br. at 42, Appellants provided no evidence showing any disabled children besides C.V. were ever handcuffed. We therefore affirm the district court’s determination that APS"
},
{
"docid": "17881020",
"title": "",
"text": "opposing party (usually the Defendant) to be responsible for the claims of class members. The Court’s responsibility is to make sure that the common bond between the class representatives’ claims and those of the class is strong-enough so that it is fail- for the fortunes of the class members to rise or fall with the fortunes of the class representatives. That is the very purpose of Rule 23(a). Plaintiffs argue that common factual and legal issues exist which would be significantly dispositive of the issue of liability as to all class members. They argue that their evidence is strong enough to establish a presumption or pattern and practice of discrimination common to all class members as well as themselves. Plaintiffs specifically argue that the evidence of Defendants’ promotion and compensation practices (e.g., use of subjective criteria for promotions, non-posting of some job openings) coupled with the expert testimony of Dr. Madden and that of Dr. Murphy proves that Defendants’ personnel and compensation practices as a whole have adversely impacted all African-Americans in the class. They also argue that when the statistical evidence is coupled with evidence of numerous acts and statements of racial hostility within the Defendant companies, plus evidence that many African-American employees have not received deserved promotions, a “pattern and practice” of racial discrimination is revealed which is common to all Named Plaintiffs and class members. Defendants argue that the statistical, anecdotal and other evidence is insufficient in quantity and quality to raise a presumption of discrimination or to show a pattern and practice of discrimination common to all class members. Defendants argue that the statistical proof is seriously flawed in numerous respects. Plaintiffs seek to proceed under two different substantive theories recognized by the law in discrimination cases: disparate treatment and disparate impact. A plaintiff generally establishes disparate treatment by showing that the employer intentionally treated him less favorably than similarly-situated white employees because of his race. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). A three part inquiry established by the Supreme Court in McDonnell Douglas"
},
{
"docid": "5796010",
"title": "",
"text": "plaintiffs here present a protracted history of repeated discovery misconduct by a defendant warranting a severe preclusion sanction. Moreover, in a pattern and practice case, a plaintiff class seeking to carry its prima facie burden of offering evidence adequate to create an inference of discrimination will usually provide statistical evidence showing a disparity between the position of the class members and other similarly-situated individuals, and may also present anecdotal evidence to show that the statistical disparity is the result of unlawful discrimination. Segar, 738 F.2d at 1267; Arnold, 863 F.2d at 999-1000. Once plaintiffs have established their prima facie case of discrimination, there are two ways an employer-defendant can seek to rebut the plaintiffs’ case. First, “[t]he employer can endeavor to refute the plaintiffs’ claim that a disparity exists” by “[e]hallenging the accuracy or significance” of the plaintiffs’ statistical showing. Segar, 738 F.2d at 1267-68. Alternatively, a defendant can present an “explanatory defense” “to show that any observed disparities between plaintiffs and [another] group did not result from discrimination violative of Title VII.” Id. at 1267-68. Under a disparate treatment theory, the defendant will offer “a legitimate, nondiscriminatory explanation for the disparity” such as “some additional job qualification ... that the plaintiff class lacks.” Id. at 1268. Un der a disparate impact theory where the plaintiffs have linked the alleged disparity to a particular business practice, the defendant will seek to prove “the business necessity of the practices causing the disparity.” Id. at 1270. Although the defendant will be precluded from offering a legitimate, nondiscriminatory reason for any discriminatory nonpromotion that the individual named plaintiffs establish that they suffered, she may defend against the plaintiffs’ statistical showing by either attacking the accuracy of the plaintiffs’ statistical showing or presenting competing statistical evidence to refute the significance of the plaintiffs’ showing. CONCLUSION AND ORDER Based on all of the evidence presented, it was not clearly erroneous for the magistrate judge to find that the defendant violated the discovery order compelling the defendant to conduct a reasonable search for and produce responsive documents. Furthermore, the defendant has shown neither that the magistrate"
},
{
"docid": "7419980",
"title": "",
"text": "to “bridge the gap” between her individual claim and “the existence of a class of persons who have suffered the same injury as that individual.]” Falcon, 457 U.S. at 157, 102 S.Ct. 2364. In cases where the plaintiffs allege systemic disparate treatment, plaintiffs may demonstrate commonality by providing “ ‘significant proof that an employer operated under a general policy of discrimination ... if the discrimination manifested itself in ... promotion practices in the same general fashion!)]’ ” Wal-Mart, 131 S.Ct. at 2553 (quoting Falcon, 457 U.S. at 159 n. 15, 102 S.Ct. 2364); see also Love v. Johanns, 439 F.3d 723, 728 (D.C.Cir.2006) (explaining that in cases where plaintiffs allege disparate treatment of a class, plaintiffs seeking class certification must “show (i) discrimination (ii) against a particular group (iii) of which the plaintiff is a member, plus (iv) some additional factor that permits the court to infer that members of the class suffered from a common policy of discrimination” (internal quotation marks omitted)). Regarding a complaint of “class-wide discriminatory impact, [plaintiffs] must make a showing sufficient to permit the court to infer that members of the class experienced discrimination as a result of the disparate effect of a facially neutral policy.” Garcia, 444 F.3d at 632 (internal quotation marks omitted). To satisfy Rule 23(a)’s commonality requirement, plaintiffs may put forth statistical and anecdotal evidence to support the inference that the defendant-employer operated under a general policy of discrimination and that the discrimination manifested itself in the defendant’s challenged policies and procedures. See McReynolds v. Sodexho Marriott Servs., Inc. (McReynolds I), 208 F.R.D. 428, 441 (D.D.C.2002) (citing Wagner v. Taylor, 836 F.2d 578, 592 (D.C.Cir.1987)); see also Wal-Mart, 131 S.Ct. at 2555-56. Here, the plaintiffs offer both statistical and anecdotal evidence, a. Statistical evidence The plaintiffs rely on Dr. Mann’s report to show that the “MPP promotions policy operates to adversely impact class members[.]” Pis.’ Mem. for Class Cert, at 49. As is discussed above, Dr. Mann found that for the class period and the four-year background period, the difference between African-American SAs expected to reach a best qualified list in"
},
{
"docid": "14841735",
"title": "",
"text": "to make a prima facie case of a pattern or practice of company-wide discrimination with respect to promotions. In this regard, Sodexho asserts that the only proper mode of analysis, as both a factual and legal matter, is to disaggregate to the “RVP” (Regional Vice President) level. Defendant therefore argues that plaintiffs’ aggregated statistics must be rejected because statistically significant results occurred in only 9 of 155 purported RVPs. (Def.’s Mot. at 2.) Defendant also challenges plaintiffs’ nonstatistical evidence as being too limited and therefore not probative of company-wide discrimination. (Id.) Second, defendant claims that even if plaintiffs have demonstrated a statistically significant disparity, it cannot be attributed to race. Defendant’s rebuttal consists of a double-barreled attack: (1) it offers its own multiple regression analysis by its statistical expert, Dr. Joan Haworth, to argue that any disparities in promotions are due to factors other than race; and (2) it argues that the analyses done by plaintiffs’ expert, Dr. Bernard Siskin, are inaccurate and lacking in probative value primarily because he failed to take account of the major variables of education and experience, which must, according to defendant, be controlled for both as a matter of law and fact. (Id.) Third, defendant attacks plaintiffs’ disparate impact claim, arguing that plaintiffs have failed to identify a particular employment practice that caused significant racial disparities in promotions. (Id. at 3.) Before addressing these three arguments, the Court will first review the governing principles of law regarding a disparate treatment claim (Section 1(A)). It will then address defendant’s arguments attacking the validity of plaintiffs’ statistical evidence in support of their prima facie case (Section 1(B)) and their anecdotal evidence (Section 1(C)). Next, it will consider the rebuttal evidence presented by defendant from its own expert, as well as its criticisms of plaintiffs’ statistician (Section 1(D)). Finally, the arguments relating to the disparate impact claim will be discussed. (Section II(A)-(D).) ANALYSIS I. Disparate Treatment Claim A. Legal Principles Plaintiffs’ disparate treatment claim, raised under both Title VII and § 1981, finds its genesis in the Supreme Court’s decision of Int’l Bhd. of Teamsters v. United"
},
{
"docid": "8362915",
"title": "",
"text": "reflected in other DOC’s practices such as the removal of EEO officers. Falcon, 457 U.S. at 158, 102 S.Ct. at 2371. The wide gap between an individual’s claim of discrimination and the existence of a class of persons who have suffered the same injury cannot be bridged by conclusory allegations of several instances of discrimination in a single DOC facility. The anecdotal evidence here does not come from a statistically significant number of aggrieved persons in the putative class. See Bishop, 141 F.R.D. at 237; Ross v. Nikko Securities Co. Intern., Inc., 133 F.R.D. at 97 (“The testimonial proof must identify a sta tistically significant number of aggrieved persons....”). The plaintiffs offer no statistics that upper-level positions in the DOC’s facilities are held by a disproportionate number of men considering the relevant makeup of all qualified employees. See Churchill v. Intern. Bus. Machines, Inc., 759 F.Supp. 1089, 1101 (D.N.J.1991); Gonzalez v. Brady, 136 F.R.D. at 331 (“Statistics generally are offered at the certification stage of litigation to show that a class-wide problem exists.”) The plaintiffs’ testimonial proof fails to establish the existence of an aggrieved class, and this is a requirement that applies to both disparate treatment and disparate impact Title VII claims. See Boss v. Nikko Securities Co. Intern., Inc., 133 F.R.D. at 97, 98. Without statistics or at least anecdotal evidence from a statistically significant group, the court is left to assume that the selection process created by IMPPs has a significant disparate impact on an identifiable group of female employees. Assumptions cannot substitute for the rigorous analysis required by Rule 23. See Falcon, 457 U.S. at 161, 102 S.Ct. at 2372. Promotion decisions at DOC are decentralized. With each promotion, an interview board is created unique to the facility and the position. Though the plaintiffs expressed disenchantment with much of the promotion selection process, they generally do not attack the interview boards as a discriminatory vehicle. The focus of their attack is on the final hiring authority vested generally with the warden of that facility. Consequently, the issue whether discrimination has occurred will depend on the specific"
},
{
"docid": "22204394",
"title": "",
"text": "the plaintiffs must: (1) show a significant disparate impact on a protected class or group; (2) identify the specific employment practices or selection criteria at issue; and (3) show a causal relationship between the challenged practices or criteria and the disparate impact. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1482 (9th Cir.1987) (en banc). The plaintiffs sought to demonstrate that the subjective processes for awarding promotions, benefits, and salaries had a disparate impact on the two women. Dr. Polis-sar’s statistical conclusions about the large disparities in salaries and the lack of women in upper management, as well as the anecdotal testimony by multiple witnesses about the subjective promotion processes and award of salary and benefits, is sufficient to support the jury’s conclusion that the plaintiffs established a case of disparate impact discrimination. The plaintiffs also had to show three elements to establish a prima facie case of disparate treatment discrimination: (1) membership in a protected class; (2) qualification for the position at issue; and (3) an adverse employment action. See Morgan, at 1016. The jury only found disparate treatment of Lamphiear. The jury heard the testimony of a former store manager that Lamphiear’s gender affected the company’s treatment of her, and that she received significantly lower pay than her male counterparts. Tidyman’s’ own internal study found that Lamphiear was underpaid for her position. Multiple witnesses, including the plaintiffs, testified to gender-based discriminatory comments made by Tidyman’s’ male managers to, and about, the plaintiffs. This combined testimony is sufficient to support the jury finding of intentional discrimination against Lamphiear. To meet their prima facie burden of establishing retaliation, Hemmings and Lamphiear needed to demonstrate: (1) they engaged in a protected activity; (2) they suffered an adverse employment action; and (3) the existence of a causal link between the activity and adverse action. See Morgan v. Nat'l R.R. Passenger Corp., 232 F.3d 1008, 1017 (9th Cir.2000). Testimony by Hemmings that she was denied promotion opportunities and pay raises, excluded from meetings, and otherwise shunned at work following her complaint letter concerning sex discrimination constitutes substantial evidence to support a"
},
{
"docid": "12589987",
"title": "",
"text": "(D.C.Cir.2006) (“Establishing commonality for a disparate treatment class is particularly difficult where, as here, multiple decisionmakers with significant local autonomy exist.”). A plaintiff who brings a class-wide charge of discrimination must traverse a “wide gap” between his claim of individual mistreatment and a class-wide harm. Falcon, 457 U.S. at 157, 102 S.Ct. 2364. The plaintiff could do so in one of two ways. See Wal-Mart, 131 S.Ct. at 2553. First, he might identify a “biased testing procedure” that is used to evaluate applicants and employees. Id. By all accounts, Plaintiffs do not identify that sort of procedure here. Second, a plaintiff might offer “significant proof’ that an employer “operated under a general policy of discrimination ... [that] manifested itself in hiring and promotion practices in the same general fashion.” Id. This second route forms the focus of this case. Plaintiffs offer two types of evidence that they say bridge the gap between individual and class-wide claims: statistical evidence and anecdotal evidence. Whether examining these two categories of evidence separately or together, the district court did not abuse its discretion in deeming the Plaintiffs’ case insufficient. A. Statistical Evidence 1. Plaintiffs first present a statistical study comparing a hypothesized, weighted benchmark of black bidders for promotions to the number of black employees that they assumed Nucor promoted during the relevant period. This evidence performs a double duty, as it goes to Plaintiffs’ disparate impact claim and their disparate treatment claim. As to the disparate impact claim, this sort of statistical evidence should identify disparities that are “sufficiently substantial” to raise “an inference of causation.” Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 281 (4th Cir.2005). Without “substantial” disparities, we cannot be confident that a challenged policy produced an injury common to the class. See Wal-Mart, 131 S.Ct. at 2551. As to the disparate treatment claim, “gross statistical disparities” “may in a proper case constitute prima facie proof of a pattern or practice of discrimination.” Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-08, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977); accord Ardrey v. United Parcel Sen., 798 F.2d 679,"
},
{
"docid": "10367318",
"title": "",
"text": "to come forward with evidence sufficient to prove that intentional discrimination was Defendants’ “standard operating procedure.” Joe’s Stone Crab, 220 F.3d at 1274-75. Accordingly, the Defendants’ motion for summaiy judgment with respect to Plaintiffs pattern or practice claim is GRANTED. B. Disparate Im,pact Finally, Defendants argue that Plaintiff has failed to establish a claim of disparate impact under Title VII. To establish a claim under a theory of disparate impact, Plaintiff must show 1) the existence of a statistically significant disparity among members of different groups affected by employment decisions; 2) the existence of a specific, facially neutral employment practice; and 3) the existence of a causal nexus between the specific, facially neutral employment practice and the statistically significant disparity. 42 U.S.C. § 2000e-2(k); Joe’s Stone Crab, 220 F.3d at 1274; In re: Alabama, 198 F.3d at 1311-14. Defendants contend that Plaintiffs statistics, wThich are not adjusted to account for differences among various positions and the respective skill and education levels required, are insufficient to establish a statistically significant disparity required to state a claim. Plaintiff argues in response that his statistical evidence is sufficient to create a genuine issue of material fact precluding summary judgment. As evidence of a facially neutral policy, Plaintiff points to Defendants’ use of subjective criteria in determining which applicants to interview and thus which applicants to hire. While Plaintiff has failed to identify in his response to Defendants’ motion for summary judgment a specific policy which has had an impermissibly discriminatory impact on him, Plaintiff provided evidence in his motion for class certification to support his claim that Defendants allowed the use of subjective criteria by decisionmakers in each of its subsidiaries. However, showing that Plaintiff was subject to subjective policies does establish a prima facie case of disparate impact. Plaintiff must also show the existence of a causal nexus between these specific, facially neutral employment practices and a statistically significant disparity. “ ‘[Pjlaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their"
},
{
"docid": "927622",
"title": "",
"text": "put forth reliable statistical proof that either HSP procedure had a statistically significant adverse impact on minorities or women, plaintiffs, as a matter of law, have failed to establish a prima facie case of disparate impact discrimination on the basis of race or gender. Defendant is entitled to summary judgment as a matter of law. Although the statistical analysis reveals that the written test had a statistically significant adverse impact on persons forty or older, the HSP was properly validated and job-related. Plaintiffs failed to show that the HSP was not job-related or that a viable alternative exists which would not have an adverse impact on the plaintiff class. Because plaintiffs failed to carry their burden of production, as relates to the disparate impact age discrimination claim, summary judgment will be entered in favor of Pepsi. A. Identification of the Speciñc Employment Practice or Procedure. To establish a prima facie case of disparate impact discrimination, plaintiffs must first identify the specific facially neutral employment practice which they allege had a statistically significant adverse effect on them as members of various protected groups. Id. at 645-46, 109 S.Ct. at 2118-19. Because each phase of the HSP acts as a pass/fail barrier, it must be analyzed separately for adverse impact. See also Taylor v. James River Corp, 51 Fair Empl.Prac.Cas. (BNA) 893, 898, 1989 WL 165953 (S.D.Ala. 1989) (written test and structured interview analyzed separately for disparate impact). Plaintiffs attack the HSP and its individual components. Plaintiffs challenge: (1) the written test as having a disparate impact as to age; (2) the GAE as having a disparate impact as to age, race and gender under the 80% Rule on Exeter and outside candidates combined; and (3) the GAE as having a disparate impact as to age, race, and gender on Exeter candidates only, also applying the 80% Rule. Plaintiffs have met the first requirement of their prima facie case by identifying the specific employment practice responsible for the alleged adverse impact. B. Statistically Siynifícant Adverse Impact. To meet the next requirement of their prima facie case, plaintiffs must demonstrate a statistical disparity"
},
{
"docid": "927621",
"title": "",
"text": "impact discrimination, plaintiffs must (1) identify a specific employment practice and (2) offer reliable statistical evidence of deficiencies sufficiently substantial to show that the practice has caused the exclusion of applicants because of their membership in a protected group. Wards Cove, 490 U.S. at 657, 109 S.Ct. at 2124-25. It is not enough for plaintiffs to identify a statistical disparity; they must link the disparity to the specific practices or procedures claimed to have caused the disparity. Id. After plaintiffs make such a showing, the burden of production shifts to defendant to show that each challenged practice “serves, in a significant way, [its] legitimate employment goals.” Id. at 659, 109 S.Ct. at 2126. If defendant meets this burden of production, plaintiffs can only rebut such evidence by coming forward with an equally effective alternative selection process that would result in a less disparate impact or proving that specific HSP procedures are not job-related. Id. at 660-61, 109 S.Ct. at 2126-27. The burden of persuasion remains with the plaintiff at all times. Because plaintiffs have not put forth reliable statistical proof that either HSP procedure had a statistically significant adverse impact on minorities or women, plaintiffs, as a matter of law, have failed to establish a prima facie case of disparate impact discrimination on the basis of race or gender. Defendant is entitled to summary judgment as a matter of law. Although the statistical analysis reveals that the written test had a statistically significant adverse impact on persons forty or older, the HSP was properly validated and job-related. Plaintiffs failed to show that the HSP was not job-related or that a viable alternative exists which would not have an adverse impact on the plaintiff class. Because plaintiffs failed to carry their burden of production, as relates to the disparate impact age discrimination claim, summary judgment will be entered in favor of Pepsi. A. Identification of the Speciñc Employment Practice or Procedure. To establish a prima facie case of disparate impact discrimination, plaintiffs must first identify the specific facially neutral employment practice which they allege had a statistically significant adverse effect on"
},
{
"docid": "3928913",
"title": "",
"text": "Henningsgard during the hiring period. As was discussed supra, the standard deviation of the disparity in female hiring was 1.12. Accordingly, under Craik, the disparity of female hires alone does not support an inference that women were not hired for reasons other than their representation in the applicant pool. The Court also concludes that Plaintiffs’ anecdotal evidence of discrimination, when considered in light of the lack of statistical proof of discrimination, did not establish by a preponderance of the evidence a pattern or practice of discriminating against women in hiring. The relative absence of testimony concerning specific instances of discrimination is consistent with the relatively weak statistical proof. In addition, Plaintiffs’ references to Eveleth Mines’ reliance on word-of-mouth advertising and subjective criteria does not make Eveleth Mines’ hiring practices discriminatory. Rather, they are considered with the other facts and circumstances of the case. EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 332 (7th Cir.1988). The Court views the alleged statements by Eveleth Mines’ personnel employees in the same vein. In this case, this evidence does not support a finding of disparate treatment. b. disparate impact Under a disparate impact theory, “plaintiff is ... responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (citation omitted). Plaintiffs have identified Eveleth Mines’ reliance on word-of-mouth hiring, nepotism, and a “sloppy system for accepting and retaining applications” as the facially neutral policies which discriminate against women. (Plfs’ Post-Trial Brief, at 29.) The Court has concluded that Plaintiffs failed to offer statistical proof showing a meaningful disparity in hiring women for purposes of their disparate treatment theory of recovery. Because Plaintiffs have relied on this same proof for their disparate impact theory, the Court concludes that Plaintiffs have not established class-wide liability on the basis of a disparate impact analysis. In summary, the evidence in this case shows that Plaintiffs have failed to meet then-burden of establishing by a preponderance of the evidence a pattern or practice"
},
{
"docid": "21154603",
"title": "",
"text": "test, simply because the conclusion he reached seemed unpersuasive absent certain corroborating evidence, is misplaced. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (“The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”). While a jury may ultimately agree with Wal-Mart that, in the absence of a specific discriminatory policy promulgated by Wal-Mart, it is hard to believe, based solely on Dr. Bielby’s social science analysis, that Wal-Mart engaged in actual gender discrimination, that question must be left to the merits stage of the litigation. At the class certification stage, it is enough that Dr. Bielby presented properly-analyzed, scientifically reliable evidence tending to show that a common question of fact — i.e., “Does Wal-Mart’s policy of decentralized, subjective employment decision making operate to discriminate against female employees?” — exists with respect to all members of the class. This he did and, thus, we find no error in the district court’s acceptance of Dr. Bielby’s evidence to support its finding of commonality. (3) Statistical Evidence It is well-established that commonality may be established by raising an inference of class-wide discrimination through the use of statistical analysis. See Candad, 191 F.3d at 292, overruled on other grounds by In re IPO, 471 F.3d at 39-42; see also Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 278 (4th Cir.1980) (recognizing that statistical data showing comparable disparities experienced by protected employees may raise an inference of a policy or practice of discrimination). Dr. Richard Drogin, Plaintiffs’ statistician, analyzed data at a regional level. He ran separate regression analy-ses for each of the forty-one regions containing Wal-Mart stores. He concluded that “there are statistically significant disparities between men and women at Wal-Mart in terms of compensation and promotions, that these disparities are widespread across regions, and that they can be explained only by gender discrimination.” Dukes I, 222 F.R.D. at 154. Dr. Marc Bendick, Plaintiffs’ labor economics expert, conducted a “bench-marking” study comparing Wal-Mart with twenty of its competitors and concluded that Wal-Mart promotes a smaller percentage of women than its competitors. See"
},
{
"docid": "22346359",
"title": "",
"text": "intent through either direct or indirect evidence; to establish a prima facie case of intentional discrimination using circumstantial evi dence, plaintiffs may use the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Again, in a “pattern and practice” disparate treatment case, “the plaintiff must prove, normally through a combination of statistics and anecdotes, that discrimination is the company’s ‘standard operating procedure.’ ” Joe’s Stone Crab, 220 F.3d at 1274 (citation omitted). “To meet this burden of proof, a plaintiff must ‘prove more than the mere occurrence of isolated or accidental or sporadic discriminatory acts. It ha[s] to establish by a preponderance of the evidence that ... discrimination [is] ... the regular rather than unusual practice.’ ” Id. at 1286-87 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. at 1843). To state a claim under a disparate impact theory, in contrast, a plaintiff need not establish that he suffered intentional discrimination. Rather, “disparate impact theory prohibits neutral employment practices which, while non-discriminatory on their face, visit an adverse, disproportionate impact on a statutorily-protected group.” Id. at 1274. We have noted that the disparate impact theory is “a doctrinal surrogate for eliminating unprovable acts of intentional discrimination hidden innocuously behind facially-neutral policies or practices.” Id. Thus, to state a prima facie case of disparate impact discrimination, a plaintiff must establish that (1) there is a significant statistical disparity among members of different racial groups; (2) there is a specific, facially-neutral employment policy or practice; and (3) there is a causal nexus between the specific policy or practice and the statistical disparity. Id. Moreover, in order to satisfy the third, critical requirement, a plaintiff “must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Id. at 1274-75 (citation and internal quotation marks omitted). In general terms, disparate impact cases are more amenable than other types of discrimination claims to class treatment, since they arise out of specific policies"
},
{
"docid": "12589875",
"title": "",
"text": "the plaintiffs had failed to present a “common contention” of employment discrimination capable of “classwide resolution,” as required by Rule 23(a)(2). Wal-Mart, 131 S.Ct. at 2551. Given the diffuse class and number of employment decisions at issue, the Supreme Court observed that “[without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Id. at 2552 (emphasis in original). The plaintiffs, Wal-Mart concluded, failed to meet that standard when they premised liability on a company policy of decentralized subjective decision-making by local managers, combined with statistics showing gender-based employment disparities, limited anecdotal evidence, and expert testimony about a corporate culture that allowed for the transmission of bias. See id. at 2551, 2554-55. On September 11, 2012, the district court relied on Wal-Mart to decertify the workers’ promotions class, invoking the court’s authority under Rule 23(c)(1)(C) to amend a certification order at any time before final judgment. Wal-Mart, the court observed, clarified and heightened the commonality requirement of Rule 23(a)(2), requiring the workers to present “significant proof’ that Nucor “operated under a general policy of discrimination” and that they suffered a common injury. J.A. 10934 (quoting Wal-Mart, 131 S.Ct. at 2553). Under that standard, the district court concluded that decertification of the promotions class was required because: (1) this Court’s examination of the workers’ statistical analysis in Brown I was not sufficiently “rigorous” to assess whether it raised questions common to the class under Rule 23(a)(2); (2) the workers’ statistical and anecdotal evidence failed to establish such commonality because it did not provide “significant proof’ that there existed both a “general policy of discrimination” and a “common injury”; (3) the delegation of subjective decision-making to Nucor supervisors was not, without more, a sufficiently .uniform policy to present “ ‘common’ issues appropriate for resolution on a class-wide basis”; and (4) even if the workers had identified a common question of law or fact satisfying Rule 23(a)(2), they failed to independently satisfy Rule 23(b)(3)’s"
},
{
"docid": "22233455",
"title": "",
"text": "discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, satisfy the commonality and typicality requirements”). And, it is beyond dispute that the disparate impact analysis may be applied to subjective, as well as objective, employment practices. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). We see no reason to limit this principle to individual claims of disparate impact. Other courts have reached the same conclusion. See, e.g., Barefield v. Chevron U.S.A., Inc., No. C 86-2427 TEH, 1987 WL 65054, at *3-*4 (N.D.Cal. Sept.9,1987) (commonality found where managers made subjective employment decisions but were “controlled by uniform, centralized management organization” that oversaw a uniform promotion system and evaluation process). Of course, class certification would not be warranted absent some showing that the challenged practice is causally related to a pattern of disparate treatment or has a disparate impact on African-American employees at Metro-North. Where the decision-making process is difficult to review because of the role of subjective assessment, significant statistical disparities are relevant to determining whether the challenged employment practice has a class-wide impact. See Bare-field, 1987 WL 65054, at *3 (citing cases); cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (“Statistics showing racial or ethnic imbalance are probative ... because such imbalance is often a telltale sign of purposeful discrimination.... In many cases, the only available avenue of proof is the use of racial statistics ....”) (citations and internal quotation marks omitted). Regardless of their ultimate persuasiveness on the issue of liability, the statistical report and anecdotal evidence submitted by the Class Plaintiffs are sufficient to demonstrate common questions of fact regarding the discriminatory implementation and effects of Metro-North’s company-wide policies regarding promotion and discipline. The District Court relied on the report of Metro-North’s statistical expert, Dr. Evans, to conclude that the Class Plaintiffs’ statistics were inadequate because they failed to take into account the fact that various Metro-North positions have materially different rates of discipline and promotion. Though"
},
{
"docid": "13177733",
"title": "",
"text": "it did indicate that “[significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Id. at 159 n. 15, 102 S.Ct. 2364; see also Caridad, 191 F.3d at 292 (affirming certification of a company-wide class where role of subjective assessment was difficult to assess but plaintiffs had shown “significant statistical disparities” “sufficient to demonstrate common questions of fact regarding the discriminatory implementation and effects of Metro-North’s company-wide policies regarding promotion and discipline”). Following Falcon, courts in this and other Circuits have required that plaintiffs produce some quantum of evidence to satisfy the commonality and typicality requirements, usually in the form of affidavits, statistical evidence, or both, tending to show the existence of a class of persons affected by a company-wide policy or practice of discrimination. In Caridad, the Second Circuit stated: “Of course, class certification would not be warranted absent some showing that the challenged practice is causally related to a pattern of disparate treatment or has a disparate impact on African-American employees at Metro-North.” 191 F.3d at 292 (emphasis added) (finding commonality and typicality requirements met based on plaintiffs’ proffered statistical report and anecdotal evidence, although without any inquiry into the ultimate persuasiveness of plaintiffs’ evidence). See, e.g., Sheehan v. Purolator, Inc., 839 F.2d 99, 102 (2d Cir.1988) (affirming district court’s “denial of class certification on the ground of lack of class-wide proof of an aggrieved class,” where plaintiffs’ one affidavit and statistics on (1) the number of employees who complained of discrimination, (2) the relative number of men and women at various job titles, and (3) the salaries/fringe benefits received by male and female employees were insufficient evidence of an aggrieved class); Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 596 (2d Cir.1986) (affirming district court’s holding that plaintiff had “failed to prove the existence of any class of employees suffering from such discrimination”); Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476,"
},
{
"docid": "8362916",
"title": "",
"text": "testimonial proof fails to establish the existence of an aggrieved class, and this is a requirement that applies to both disparate treatment and disparate impact Title VII claims. See Boss v. Nikko Securities Co. Intern., Inc., 133 F.R.D. at 97, 98. Without statistics or at least anecdotal evidence from a statistically significant group, the court is left to assume that the selection process created by IMPPs has a significant disparate impact on an identifiable group of female employees. Assumptions cannot substitute for the rigorous analysis required by Rule 23. See Falcon, 457 U.S. at 161, 102 S.Ct. at 2372. Promotion decisions at DOC are decentralized. With each promotion, an interview board is created unique to the facility and the position. Though the plaintiffs expressed disenchantment with much of the promotion selection process, they generally do not attack the interview boards as a discriminatory vehicle. The focus of their attack is on the final hiring authority vested generally with the warden of that facility. Consequently, the issue whether discrimination has occurred will depend on the specific facts of each promotion at the facility, in particular, the role, involvement and motives of the particular warden. Facing this hurdle, the plaintiffs offer the conclusory allegation that discrimination occurs as a result of no central office review of the wardens’ promotion decisions. The plaintiffs, however, make no showing of a causal connection between the lack of central office review and the alleged acts of discrimination, and, without that, the court cannot find common questions of fact or law sufficient to justify class certification. See Rosenberg v. University of Cincinnati, 118 F.R.D. 591, 595 (S.D.Ohio 1987). There is nothing from which the court can infer that the discriminatory practices at the Ellsworth facility pervade all the DOC facilities. In sum, the plaintiffs have utterly failed to show that an aggrieved class exists and that the claims of the putative aggrieved class share common questions of law and fact with the representatives’ claims. E. Typicality Rule 23(a)(3) requires that the claims or defenses of the class representative be typical of the class. This requirement is met"
},
{
"docid": "22125586",
"title": "",
"text": "detailed in Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 286-90 (2d Cir.1999) (“Candad ”) (reversing the denial of class certification, see Robinson v. Metro-North Commuter R.R., 175 F.R.D. 46 (S.D.N.Y.1997) (“Robinson I”)). Only those facts relevant to this appeal are recited below. The Class Plaintiffs are present and former Metro North employees who are African American. They bring this putative class action against defendant Metro North on behalf of “all African American employees of Metro North for the period from 1985 through 1996 — an estimated 1,300 persons.” Caridad, 191 F.3d at 286. Metro North is a public benefit corporation responsible for providing commuter rail transportation between New York City and its northern suburbs. It has approximately 5,700 employees in 220 different occupations spread over 37 departments. The Class Plaintiffs assert both pattern- or-practice disparate treatment and disparate impact claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Specifically, they challenge Metro North’s company-wide policy of delegating to department supervisors discretionary authority to make employment decisions related to discipline and promotion. Relying on statistical and anecdotal evidence, the Class Plaintiffs argue that this delegated authority has been “exercised in a racially discriminatory manner and has a disparate impact on African American employees.” Caridad, 191 F.3d at 286; see Robinson I, 175 F.R.D. at 47. In their prayer for relief, the Class Plaintiffs seek “injunctive and equitable relief for the class as a whole,” including back and front pay, and also “compensatory damages for individual members of the class who were allegedly the victims of individual acts of intentional discrimination.” Robinson II, 197 F.R.D. at 87. No request for punitive damages was made. B. The Earlier Appeal In August 1997, the district court denied an earlier request for class certification because it held that the Class Plaintiffs had failed to satisfy the prerequisites for a class action set out in Rule 23(a)(2), (3). Specifically, the district court found that the Class Plaintiffs had failed to demonstrate commonality and typicality. See Robinson I, 175 F.R.D. at 47-49. “The commonality requirement"
}
]
|
539100 | "the obstruction-of-justice statutes in Chapter 73 and the Obstruction Provision. Accordingly, the dissent's cited cases—none of which relate to the Obstruction Provision, Denis, or the INA—are unavailing. See Op. of Shwartz, J. at 300. . 18 U.S.C. § 1512(c)(2). . Denis, 633 F.3d at 213. . 732 F.3d 241 (3d Cir. 2013). . Id. at 249-50 (citing Arthur Andersen LLP v. United States, 544 U.S. 696, 708, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005)). . See id. (favorably citing cases that apply the nexus requirement to § 1512(c)(2)). . Our sister circuits have also applied a nexus requirement to § 1512(c)(2). See United States v. Petruk, 781 F.3d 438, 445 (8th Cir. 2015) (applying the nexus requirement to § 1512(c)(2)); REDACTED vacated on other grounds, 567 U.S. 950, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th Cir. 2011) (same); United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009) (same); United States v. Carson, 560 F.3d 566, 584 (6th Cir. 2009) (assuming arguendo that the “nexus requirement” applies to § 1512(c)(2)); United States v. Reich, 479 F.3d 179, 186 (2d Cir. 2007) (Sotomayor, J.) (applying the nexus requirement to § 1512(c)(2)). . See James v. United States, 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (noting that the Court is ""engaging in statutory interpretation” by employing the categorical approach), overruled on other grounds by Johnson v. United" | [
{
"docid": "7908067",
"title": "",
"text": "therefore it is likely that the district court would still have denied Dalton’s motion to suppress. Moreover, because Moore did not testify at trial and likely would have exercised his right to avoid self-incrimination had he had been called to testify, the outcome of the trial would probably not have been different had Dalton and the other Defendants known that the FBI was currently investigating Moore for filing false police reports. Thus, the district court did not err in denying Dalton’s motion for acquittal or a new trial. 3. Lance’s Motion for Acquittal or a New Trial Lance argues that there was insufficient evidence to convict him of conspiring to obstruct a federal proceeding. In particular, he argues that the Government failed to offer any evidence showing a nexus between Lance’s agreement to sign the false affidavit taking responsibility for the handgun and crack in the truck and the federal charges brought against Dalton. Under 18 U.S.C. § 1512(c)(2), it is a crime to “corruptly ... obstruct[ ], influence[], or impede[] any official proceeding, or attempt[ ] to do so.” The “official proceeding need not be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(f)(1). The government must, however, prove beyond a reasonable doubt some “nexus” between the obstruction and the official proceeding. See Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005). In a phone call the morning after Dalton was arrested, Dalton told Lance: “I need you to take this charge, bro. You ain’t gonna get nothin’ but provation [sic], bro. I’m a get Jason Williams for your lawyer, and I’m a bond you out and you gonna fight this shit on the street bro.” Lance responded, “I’m a do it.” Dalton then told Lance: “But, uh, man, y’all gotta go, y’all go, you got to find [Miller] and, and go down there with Jason Williams and try to take this, this bro, before the feds accept it bro cause, which you they ain’t gonna fuck which you like that, bro.” That phone"
}
]
| [
{
"docid": "22494477",
"title": "",
"text": "reading of \"due administration of this title\" is supported by three decisions interpreting other obstruction statutes, though it admits that the \"language and history\" of the Omnibus Clause \"differ somewhat\" from those other obstruction provisions. Ante, at 1108 - 1109 (citing United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995) ; Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) ; Yates v. United States, 574 U.S. ----, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) (plurality opinion)). \"[D]iffer somewhat\" is putting it lightly. The differences between the Omnibus Clause and those other obstruction statutes demonstrate why the former does not contain the Court's proceeding requirement. Aguilar interpreted 18 U.S.C. § 1503. The omnibus clause of § 1503 forbids corruptly endeavoring to obstruct \"the due administration of justice.\" The Court concluded that this language requires the prosecution to prove a \"nexus\" between the defendant's obstructive act and \"judicial proceedings.\" 515 U.S., at 599-600, 115 S.Ct. 2357. But this nexus requirement was based on the specific history of § 1503. The predecessor to that statute prohibited obstructing \"the due administration of justice\" \"in any court of the United States.\" Pettibone v. United States, 148 U.S. 197, 202, 13 S.Ct. 542, 37 L.Ed. 419 (1893) (citing Rev. Stat. § 5399). Based on this statutory history, the Court assumed that § 1503 continued to refer to the administration of justice in a court. Aguilar, supra, at 599, 115 S.Ct. 2357. None of that history is present here. Arthur Andersen is even further afield. There the Court interpreted 18 U.S.C. § 1512(b)(2)(A), which prohibits \"knowingly ... corruptly persuad[ing] another person ... with intent to ... cause or induce [that] person to ... withhold testimony, or withhold a record, document, or other object, from an official proceeding.\" Relying on Aguilar, the Court concluded that § 1512(b)(2)(A) required the Government to show a \"nexus\" with \"[a] particular proceeding.\" 544 U.S., at 707-708, 125 S.Ct. 2129. But this nexus requirement came from the statutory text, which expressly included \"an official proceeding.\" If anything, then, § 1512(b)(2)(A)"
},
{
"docid": "408933",
"title": "",
"text": "impede, the due administration of justice.’ ” 515 U.S. at 598, 115 S.Ct. 2357 (quoting 18 U.S.C. § 1503). The Court construed the provision as requiring the charged conduct to “have a relationship in time, causation, or logic with the judicial proceedings.” Id. at 599, 115 S.Ct. 2357. To satisfy this requirement, the defendant’s conduct must have the “ ‘natural and probable effect’ of interfering with the due administration of justice.” Id. (quoting United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993)). This nexus requirement, the Court stated, ensures a certain degree of “metes and bounds on the very broad language of the catchall provision.” Id. In Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129, the Court extended the nexus requirement to certain provisions of 18 U.S.C. § 1512 which make it a crime to “knowingly use[ ] intimidation, threaten! ], or corruptly persuade!] another person ... with intent to ... cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” 18 U.S.C. §§ 1512(b)(2)(A) and (B). The Court reasoned that it is “one thing to say that a proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and quite another to say a proceeding need not even be foreseen.” Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129. The Court concluded that a defendant cannot be convicted under §§ 1512(b)(2)(A) and (B) unless he or she “contémplateos]” a “particular official proceeding” in which the documents at issue might be material. Id. at 708; 125 S.Ct. 2129. Relying on Aguilar and Arthur Andersen, many of our sister circuits have applied the nexus requirement to 18 U.S.C. § 1512(c)(2). See, e.g., United States v. Tyler, 732 F,3d 241, 249-50 (3d Cir.2013) (applying the nexus requirement to “any prosecution brought under a § 1512 provision charging obstruction of justice involving an ‘official proceeding’ ”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S.-, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v."
},
{
"docid": "22952146",
"title": "",
"text": "that § 1512(c)(2) also contains a nexus requirement as articulated in Aguilar. See Phillips, 583 F.3d at 1264; United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007); see also United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that Aguilar nexus requirement applies to § 1512(c)(2)). Aguilar relied on the principle that “a person lacking knowledge of a pending proceeding necessarily lack[s] the evil intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362 (discussing Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546-47, 37 L.Ed. 419 (1893)). That principle applies equally to § 1512(c)(2), because without knowledge of the forfeiture proceeding, Friske could not know that his actions were likely to affect it. We recognize that § 1512(f)(1) provides that “[f]or the purposes of [§ 1512] ... an official proceeding need not be pending or about to be instituted at the time of the offense.” But, as the Supreme Court observed in Arthur Andersen, “[i]t is ... one thing to say that a proceeding need not be pending or about to be instituted at the time of the offense, and quite another to say a proceeding need not even be foreseen.” 544 U.S. at 707-08, 125 S.Ct. at 2137 (quotation marks omitted). Thus, in this case, the government was required to prove that Friske knew of, or at least foresaw, the forfeiture proceeding. In support of his motion for judgment of acquittal before the District Court, Friske conceded that “there [was] plenty of evidence [from which] the jury can conclude that he went under the deck to retrieve three items for Mr. Erickson,” but insisted that “there [was] not one scintilla of evidence that he knew he was obtaining something that was subject to forfeiture.” We agree. Although Friske was certainly acting suspiciously in his attempts to recover the three sealed PVC pipes from under the pool deck, more is required to prove a violation of § 1512(c)(2). Specifically, the government had to prove beyond a reasonable doubt that Friske knew that the natural and probable result of his actions would"
},
{
"docid": "408935",
"title": "",
"text": "Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) (same); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that the nexus requirement applies to § 1512(c)(2)); United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007) (applying nexus requirement to § 1512(c)(2)). Further, we are aware of no circuit that has considered and rejected application of the nexus requirement to § 1512(c)(2). Considering the similarity of statutory language between § 1512(c)(2) and the catchall provision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen to another provision of § 1512, and other circuits’ application of the nexus requirement to § 1512(c)(2), we hold that § 1512(c)(2) incorporates the nexus requirement set forth in Aguilar and Arthur Andersen. In other words, we hold that a successful prosecution under § 1512(c)(2) requires proof beyond a reasonable doubt that the defendant contemplated a particular, foreseeable proceeding, and that the contemplated proceeding constituted an “official proceeding,” which is defined under § 1515(a)(1)(A) to include a proceeding before a federal judge, court, or grand jury, but not a state proceeding. Turning to the facts presented at trial, we conclude that the evidence is insufficient to convict Petruk of Count 2 of the federal indictment for attempting to secure statements from false alibi witnesses while incarcerated on state charges. The transcripts of the telephone calls between Petruk and Peterson in December 2012 show that Petruk’s efforts were directed at securing false statements to use in his upcoming proceedings in Minnesota state court. On December 18, 2012, Petruk asked Peterson to secure alibi statements and told her he would need copies of the statements within the week. On December 26, 2012, Petruk stated that he would “need [the statements] in court tomorrow, or on Friday.” In making this statement, Petruk referred only to his pending state court proceedings. His federal prosecution was not initiated until June 2013. The facts of this case are analogous to those in United States v. Shavers, 693 F.3d 363, 379-81 (3d Cir.2012), vacated on other"
},
{
"docid": "408932",
"title": "",
"text": "from false alibi witnesses while incarcerated on state charges relating to the theft of the truck. With respect to this conviction, Petruk argues that the evidence was insufficient to prove his intent to impair an “official proceeding.” Petruk relies primarily on the Supreme Court’s decisions in United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), and Arthur Andersen, LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), in arguing that the Government was required to prove that he contemplated a particular, foreseeable federal proceeding at the time he engaged in his obstructive conduct in order to convict him under 18 U.S.C. § 1512(c)(2). We have never decided whether the nexus requirement articulated in Aguilar and Arthur Andersen applies to § 1512(c)(2). . At issue in Aguilar was the catchall provision of a jury tampering statute, which makes it a crime to “ ‘corruptly or by threats or force, or by any threatening letter or communication, influence!], obstruct!], or impede!], or endeavor!] to influence, obstruct, or impede, the due administration of justice.’ ” 515 U.S. at 598, 115 S.Ct. 2357 (quoting 18 U.S.C. § 1503). The Court construed the provision as requiring the charged conduct to “have a relationship in time, causation, or logic with the judicial proceedings.” Id. at 599, 115 S.Ct. 2357. To satisfy this requirement, the defendant’s conduct must have the “ ‘natural and probable effect’ of interfering with the due administration of justice.” Id. (quoting United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993)). This nexus requirement, the Court stated, ensures a certain degree of “metes and bounds on the very broad language of the catchall provision.” Id. In Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129, the Court extended the nexus requirement to certain provisions of 18 U.S.C. § 1512 which make it a crime to “knowingly use[ ] intimidation, threaten! ], or corruptly persuade!] another person ... with intent to ... cause” that person to “withhold” documents from, or “alter” documents for use in, an “official proceeding.” 18 U.S.C. §§ 1512(b)(2)(A) and (B)."
},
{
"docid": "3211535",
"title": "",
"text": "Tineo that the results were negative. Ivan Paulino, who had gone to the Dominican Republic in September 2008, testified that if the searches had revealed any arrest warrants in his name he would have remained in the Dominican Republic rather than come back to the United States. There was .evidence that Tejada continued to conduct such searches throughout early 2009, and he ran several searches for his own name in January 2010. Tejada, testifying in his own defense, admitted, inter alia, that he had searched through law enforcement databases for the names of Tineo and the Paulinos and had communicated the results of his searches to Tineo. (See Tejada First Trial Transcript, November 13, 2013 (“Tejada 2013 Tr.”), at 2580-82). Section § 1512 provides in pertinent part that (c) Whoever corruptly— (2) ... obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. (k) Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy- 18 U.S.C. §§ 1512(c)(2), (k) (emphasis added). “For the purposes of this section ... an official proceeding need not be pending or about to be instituted at the time of the offense.Id. § 1512(f)(1). However, the government must prove that such a proceeding was reasonably foreseeable to the defendant, see, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005); United States v. Binday, 804 F.3d 558, 590-91 (2d Cir. 2015) (“Binday”), cert. denied, — U.S. -, 136 S.Ct. 2487, 195 L.Ed.2d 823 (2016). In addition, to prove obstruction of justice in violation of § 1512(c)(2), the government must show that there was a “nexus” between the defendant’s conduct and the pending, or foreseeable, official proceeding, see, e.g., United States v. Reich, 479 F.3d 179, 185-86 (2d Cir.) (“Reich”), cert. denied, 552 U.S. 819, 128 S.Ct. 115, 169 L.Ed.2d 26 (2007); id. (holding the “ ‘nexus requirement’ ” applied"
},
{
"docid": "3211536",
"title": "",
"text": "same penalties as those prescribed for the offense the commission of which was the object of the conspiracy- 18 U.S.C. §§ 1512(c)(2), (k) (emphasis added). “For the purposes of this section ... an official proceeding need not be pending or about to be instituted at the time of the offense.Id. § 1512(f)(1). However, the government must prove that such a proceeding was reasonably foreseeable to the defendant, see, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 707-08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005); United States v. Binday, 804 F.3d 558, 590-91 (2d Cir. 2015) (“Binday”), cert. denied, — U.S. -, 136 S.Ct. 2487, 195 L.Ed.2d 823 (2016). In addition, to prove obstruction of justice in violation of § 1512(c)(2), the government must show that there was a “nexus” between the defendant’s conduct and the pending, or foreseeable, official proceeding, see, e.g., United States v. Reich, 479 F.3d 179, 185-86 (2d Cir.) (“Reich”), cert. denied, 552 U.S. 819, 128 S.Ct. 115, 169 L.Ed.2d 26 (2007); id. (holding the “ ‘nexus requirement’ ” applied to 18 U.S.C. § 1503 by United States v. Aguilar, 515 U.S. 593, 599-600, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), equally applicable to a charge of obstruction in violation of § 1512(c)(2)). Elements of corruption and attempt of course require proof of some knowledge on the part of the defendant of an ongoing or foreseeable official proceeding. See generally Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 93 L.Ed. 919 (1949) (aiding and abetting theory supports liability when the defendant “consciously shares in” the underlying criminal act); United States v. Kumar, 617 F.3d 612, 621 (2d Cir. 2010) (“Kumar”) (to establish that an act was done corruptly, government must prove wrongful intent), cert. denied, 563 U.S. 1028, 131 S.Ct. 2931, 180 L.Ed.2d 238 (2011); Direct Sales Co. v. United States, 319 U.S. 703, 711-12, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943) (“knowledge is the foundation of intent”). However, the existence of a nexus between his action and the proceeding does not depend on the defendant’s knowledge. See generally Binday,"
},
{
"docid": "23394476",
"title": "",
"text": "plain error analysis); accord United States v. Thomas, 274 F.3d 655, 667 (2d Cir.2001) (en banc). To be sure, 18 U.S.C. § 1512(f)(1) states that “[f]or purposes of this section,” which includes § 1512(b), “an official proceeding need not be pending or about to be instituted at the time of the offense.” See United States v. Gonzalez, 922 F.2d 1044, 1055-56 (2d Cir.1991) (holding that § 1512 reaches conduct intended to prevent communication of information during investigatory stage). Nevertheless, in Arthur Andersen LLP v. United States, a § 1512(b) case, the Supreme Court ruled that there was a difference between saying that a judicial proceeding “need not be pending or about to be instituted” and saying that a proceeding “need not even be foreseen.” 544 U.S. 696, 707-08, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) (internal quotation marks omitted). The Court ruled that a defendant could not act with the mens rea necessary to violate § 1512(b) if, when engaging in the obstructive conduct “he does not have in contemplation any particular official proceeding in which [the obstructed information] might be material.” Id. at 708, 125 S.Ct. 2129. Following Arthur Andersen, this court in United States v. Quattrone, 441 F.3d 153, 180-81 (2d Cir.2006), identified error in an instruction that told a jury that it need not find any nexus between the defendant’s actions and the pending investigations to convict him of obstruction pursuant to § 1512(b). The trial record indicates that the challenged language in this case was proposed by the government, endorsed by the defendant, and included in the charge by the district court in order specifically to ensure the nexus finding specified in Arthur Andersen. To the extent the charge may have imposed an intent requirement beyond that strictly required by Arthur Andersen — a point we need not conclusively decide on this appeal — Hertular does not even attempt to show that he was prejudiced by the district court placing a heavier burden on the government, see United States v. Kaplan, 490 F.3d 110, 124 (2d Cir.2007) (noting that “defendant asserting plain error” generally “bears the"
},
{
"docid": "17352015",
"title": "",
"text": "drug operations. II. PROCEDURAL HISTORY Willie Tyler is no stranger to this Court. After Tyler’s state trial in which he was acquitted of murdering a witness and convicted of intimidating a witness, Tyler was federally charged with witness tampering by murder and by intimidation in connection with Proctor’s death, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and (C) and 18 U.S.C. §§ 1512(b)(1), (2), and (3), respectively. In August 1996, following a jury trial, Tyler was convicted of witness tampering, and on appeal, we reversed the conviction and granted a new trial based on grounds not relevant here. United States v. Tyler (Tyler I), 164 F.3d 150, 159 (3d Cir.1998); see also United States v. Tyler (Tyler II), 281 F.3d 84, 89 (3d Cir.2002). Tyler was re-tried, and in August 2000, a jury found Tyler guilty of two counts of tampering with a witness — by murder and by intimidation. He was later sentenced to life imprisonment, and on direct appeal, we affirmed the conviction. Tyler II, 281 F.3d at 101. In December 2009, Tyler filed a pro se motion, arguing that Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), had rendered his conduct non-criminal. The Supreme Court had held in Arthur Andersen that certain official proceeding provisions of § 1512’s witness intimidation subsection, § 1512(b)(2)(A) and (B), require that the Government prove a “nexus” between the defendant’s conduct and a particular federal proceeding. 544 U.S. at 707-08, 125 S.Ct. 2129. While his motion was pending, the Supreme Court decided Fowler v. United States, — U.S. -, 131 S.Ct. 2045, 2052, 179 L.Ed.2d 1099 (2011), holding that an investigation-related communication provision of § 1512’s witness murder subsection, § 1512(a)(1)(C), required that there be a reasonable likelihood that a witness’s murder was intended to prevent communication with a federal law enforcement officer or judge. Tyler later supplemented his pro se motion to address Fowler. The District Court construed his motions as a petition for relief under 28 U.S.C. § 2241, which it denied in March 2012. Tyler appealed. III. ANALYSIS A. Availability of"
},
{
"docid": "14149237",
"title": "",
"text": "Section 1512(c)(2)’s Mens Rea Element Under § 1512(c)(2), any person who “corruptly ... obstructs, influences, or impedes any official proceeding or attempts to do so, shall be fined under this title or imprisoned not more than 20 years or both.” 18 U.S.C. § 1512(c)(2). In this case, the jury was properly instructed that an “official proceeding” includes proceedings before a grand jury. Id. § 1515(a)(1)(A). In United States v. Aguilar, 515 U.S. 593, 599, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), the Supreme Court considered the intent element under 18 U.S.C. § 1503, which is phrased similarly to § 1512(c)(2). See 18 U.S.C. § 1503(a) (stating that “[wjhoever corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice” may be punished). In an effort to “place metes and bounds on the very broad language” of § 1503, the Court held that to be convicted under that section a defendant must act with the intent that his actions will influence a proceeding. Accordingly, the Court determined that § 1503 requires that a defendant’s obstructive conduct have a nexus in time, causation, or logic with the proceeding the defendant is charged with obstructing. Id. In other words, interference with the proceeding must be the natural and probable effect of the defendant’s conduct under § 1503. Id. In this way, we have explained that “[t]he nexus limitation is best understood as an articulation of the proof of wrongful intent that will satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir. 2009) (quotations omitted). In Arthur Andersen LLP v. United States, 544 U.S. 696, 708, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Court extended the Aguilar nexus requirement to prosecutions under § 1512(b), which prohibits (among other acts) intentionally and corruptly persuading another person to withhold documents from an official proceeding. In that case, the Court relied on Aguilar to determine that although a proceeding need not be pending under the statute, it must be at least foreseeable to the defendant, because a defendant who “"
},
{
"docid": "22952144",
"title": "",
"text": "United States v. Mintmire, 507 F.3d 1273, 1289 (11th Cir.2007) (quotation marks and alterations in original omitted). Friske argues that the district court erred in denying his motion for judgment of acquittal because the government did not offer evidence sufficient to support a finding that he knew of the forfeiture proceeding. As an initial matter, we must decide whether the government was required to prove that Friske knew of the forfeiture proceeding. In United States v. Aguilar, 515 U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), the Supreme Court held that a similar statute, 18 U.S.C. § 1503, which prohibits “corruptly or by threats of force, ... influencing], obstructing], or impeding], or endeavoring] to influence, obstruct, or impede, the due administration of justice,” contains “a ‘nexus’ requirement — that the act must have a relationship in time, causation, or logic with the judicial proceedings.” Id. at 599, 115 S.Ct. at 2362. As our sister circuits have explained, “[t]he nexus limitation is best understood as an articulation of the proof of wrongful intent that will satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir.2009) (quotation marks omitted); see also United States v. Quattrone, 441 F.3d 153, 170 (2d Cir.2006) (using same language to describe nexus requirement as applied to § 1503). In Aguilar, the Supreme Court stated that “if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362. In Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Supreme Court extended this requirement — that there be “a ‘nexus’ between the obstructive act and the proceeding”— to another similar statute, 18 U.S.C. § 1512(b)(2), which prohibits, among other things, “knowingly ... corruptly persuading] another person ... with intent to ... cause or induce any person to ... withhold testimony ... or ... document[s] ... from an official proceeding.” Id. at 708, 125 S.Ct. at 2137. We now join our sister circuits in concluding"
},
{
"docid": "17352028",
"title": "",
"text": "we expressly held that the nexus requirement for official proceedings extends to § 1512(b)(1) and implied that the nexus requirement would apply likewise to other obstructive conduct involving an official proceeding proscribed by § 1512. We similarly conclude here that in any prosecution brought under a § 1512 provision charging obstruction of justice involving an “official proceeding,” the government is required to prove a nexus between the defendant’s conduct and a particular official proceeding before a judge or court of the United States that the defendant contemplated. Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129. This holding is in line with our sister Circuits that have all concluded that the nexus requirement applies to other § 1512 provisions qualified by an official proceeding. See United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S. —, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); Phillips, 583 F.3d at 1263-64 (same); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (same); Matthews, 505 F.3d at 707-08 (applying nexus requirement to § 1512(c)(1)); United States v. Kaplan, 490 F.3d 110, 126 (2d Cir.2007) (applying nexus requirement to § 1512(b)(1)). Having considered the effect of Arthur Andersen on the § 1512 official proceeding provisions, we now must examine whether the evidence in the record is consistent with Tyler’s claim that he is actually innocent of violating § 1512’s official proceeding provisions. We emphasize that our review “does not amount to a determination of whether there is sufficient evidence to convict,” but only considers whether the evidence supports Tyler’s actual innocence claim “such that remand is required to allow [him] an opportunity to establish his actual innocence.” Garth, 188 F.3d at 110. We believe that it does. In Shavers, we considered the evidence presented at trial and concluded that it was insufficient as a matter of law to satisfy the official proceedings requirement because the defendant’s conduct was directed at preventing a witness from testifying in a state court proceeding"
},
{
"docid": "5214746",
"title": "",
"text": "(citing Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129). While the Court in Arthur Andersen interpreted § 1512(b)(2)(A) and (B) only, the Court’s analysis and application of the “nexus” requirement applies with equal force to § 1512(b)(1). All three subsections qualify the prohibited conduct by requiring that the defendant target testimony or evidence in an “official proceeding.” Consistency demands that we apply the Arthur Andersen nexus requirement to § 1512(b)(1). See United States v. Matthews, 505 F.3d 698, 708 (7th Cir.2007) (holding that Arthur Andersen applies to prosecutions under § 1512(c)(1) because that subsection also “speaks in terms of the relationship between obstructive acts and a proceeding.”); Kaplan, 490 F.3d at 126 (noting that the jury instructions on the § 1512(b)(1) charge “undoubtedly needed to comply with the nexus requirement discussed in Arthur Andersen ”). Accordingly, the Government in a § 1512(b)(1) prosecution is tasked with proving that the defendant contemplated a particular “official proceeding” that was foreseeable when he or she engaged in the proscribed conduct. As part of that requirement, the Government must demonstrate beyond a reasonable doubt that the contemplated proceeding met the definition of “official proceeding” articulated in § 1515(a)(1)(A). The VWPA is clear, however, that the Government is not required to show that the defendant knew that the contemplated proceeding was federal in nature: In a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance ... that the official proceeding ... is before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a Federal grand jury, or a Federal Government agency.... 18 U.S.C. § 1512(g)(1). The parties dispute whether the United States Supreme Court’s recent decision in Fowler v. United States affects our analysis. - U.S. -, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011). In Fowler, the Court considered the federal nature requirement in § 1512(a)(1)(C), which proscribes the murder of a person with the intent to “prevent the communication by any person to a law enforcement officer or judge of the United States of information relating"
},
{
"docid": "17352026",
"title": "",
"text": "it would apply to an official proceeding provision, § 1512(b)(1). We concluded that for the same reasons that Arthur Andersen’s nexus requirement does not apply to the investigation-related communication provisions, it would be “illogical” to apply Fowler’s reasonable likelihood requirement in the context of prosecutions under the official proceeding provisions. Id. at 379. Instead, we recognized that each of the § 1512 categories was subject to a different set of requirements, concluding that “there are at least two lines of jurisprudence developing separately under the VWPA: one for the investigation-related provisions, such as § 1512(b)(3) and (a)(1)(C), and one for the ‘official proceeding’ provisions, such as § 1512(b)(1) and (b)(2).” Id. D. Effect of Intervening Supreme Court Decisions on Tyler’s Convictions 1. Official Proceeding: Nexus Requirement Tyler contends that his conduct has been rendered non-criminal by the Supreme Court’s decision in Arthur Andersen because there was no evidence from which the Government could establish a nexus with an official proceeding. The District Court, though, held that Arthur Andersen did not establish that Tyler was actually innocent of his witness tampering offenses. It recognized that other Circuits have held that Arthur Andersen’s nexus requirement applies to other VWPA provisions containing the official proceedings language. United States v. Tyler, No. 1:96-CR-106, 2012 WL 951479, at *9 (M.D.Pa. Mar. 20, 2012) (citing United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) and United States v. Matthews, 505 F.3d 698, 707-08 (7th Cir.2007)). However, it reasoned that because the conduct at issue in Arthur Andersen was “by itself not inherently wrong,” a nexus requirement was necessary to ensure that “innocent conduct is not punished,” whereas Tyler’s conduct involved “consciousness of wrongdoing” so no such nexus requirement was necessary. Id., at *9-10. Thus, it disagreed with the holdings of these Circuits and held that ArtI J,r Andersen’s nexus requirement does not apply to § 1512(a)(1)(A) and (C) and § 1512(b)(1) and (b)(3), because “Arthur Andersen has not altered the legal landscape for all section 1512 offenses.” Id., at *10. The District Court’s holding is in sharp contrast with our subsequent holding in Shavers. There"
},
{
"docid": "5214745",
"title": "",
"text": "of the offense.” Id. § 1512(f)(1). There does, however, need to be a connection between the defendant’s conduct and the official proceeding. In Arthur Andersen LLP v. United States, the United States Supreme Court reviewed convictions under § 1512(b)(2)(A) and (B). 544 U.S. 696, 698, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005). The Court held that to satisfy the. “official proceeding” requirement, under those subsections, the Government must show a “nexus” between the defendant’s conduct and a particular proceeding. Id. at 707-08, 125 S.Ct. 2129. To meet that nexus requirement, the Government must prove that the defendant “ha[d] in contemplation [a] particular official proceeding” when he or she attempted to interfere with evidence or a witness. Id. at 708, 125 S.Ct. 2129. The proceeding need not have been pending or about to be instituted, but it must have been foreseeable. Id. at 707-08, 125 S.Ct. 2129. Thus, the defendant “must believe that his actions are likely to affect a particular, existing or foreseeable official proceeding.” United States v. Kaplan, 490 F.3d 110, 125 (2d Cir.2007) (citing Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129). While the Court in Arthur Andersen interpreted § 1512(b)(2)(A) and (B) only, the Court’s analysis and application of the “nexus” requirement applies with equal force to § 1512(b)(1). All three subsections qualify the prohibited conduct by requiring that the defendant target testimony or evidence in an “official proceeding.” Consistency demands that we apply the Arthur Andersen nexus requirement to § 1512(b)(1). See United States v. Matthews, 505 F.3d 698, 708 (7th Cir.2007) (holding that Arthur Andersen applies to prosecutions under § 1512(c)(1) because that subsection also “speaks in terms of the relationship between obstructive acts and a proceeding.”); Kaplan, 490 F.3d at 126 (noting that the jury instructions on the § 1512(b)(1) charge “undoubtedly needed to comply with the nexus requirement discussed in Arthur Andersen ”). Accordingly, the Government in a § 1512(b)(1) prosecution is tasked with proving that the defendant contemplated a particular “official proceeding” that was foreseeable when he or she engaged in the proscribed conduct. As part of that requirement, the Government"
},
{
"docid": "14149239",
"title": "",
"text": "‘lacks knowledge that his actions are likely to affect [a] judicial proceeding ... lacks the requisite intent to obstruct.’ ” Id. (quoting Aguilar, 515 U.S. at 599, 115 S.Ct. 2357). The Supreme Court has not determined whether the Aguilar nexus requirement extends to § 1512(c)(2). Two circuits, however, have applied the Aguilar nexus requirement to § 1512(c)(2), see United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007) (Sotomayor, J.); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that the Aguilar nexus requirement applies to § 1512(c)(2)), and we are aware of no court that has explicitly rejected this approach. Considering the similar statutory language of §§ 1503 and 1512(c)(2), the Supreme Court’s recent extension of the Aguilar nexus requirement to another subsection of § 1512, and other circuits’s application of the Aguilar nexus requirement to § 1512(c)(2), we hold that § 1512(c)(2) incorporates the nexus requirement as articulated by the Supreme Court in Aguilar. B. Sufficiency of the Evidence We now turn to the evidence adduced at trial. We review the sufficiency of the evidence to support a jury verdict de novo and examine only whether taking the evidence, both direct and circumstantial, “in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.1999) (quotations omitted). Therefore, the evidence supporting a jury verdict must be substantial, but “it need not conclusively exclude every other reasonable hypothesis and it need not negate all possibilities except guilt.” United States v. Burkley, 513 F.3d 1183, 1188 (10th Cir.2008) (quotations omitted). In this case, Mr. Phillips contends that the evidence only demonstrates he was aware Officer Bice was a policeman, not that he was aware of an ongoing or future federal grand jury investigation. He argues that this is insufficient to establish the requisite mens rea under § 1512(c)(2). We disagree with Mr. Phillips’s assessment of both the law and the evidence adduced at trial. First, § 1512(c)(2) does not require that the defendant know of the existence of an"
},
{
"docid": "22952145",
"title": "",
"text": "satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v. Phillips, 583 F.3d 1261, 1264 (10th Cir.2009) (quotation marks omitted); see also United States v. Quattrone, 441 F.3d 153, 170 (2d Cir.2006) (using same language to describe nexus requirement as applied to § 1503). In Aguilar, the Supreme Court stated that “if the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362. In Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Supreme Court extended this requirement — that there be “a ‘nexus’ between the obstructive act and the proceeding”— to another similar statute, 18 U.S.C. § 1512(b)(2), which prohibits, among other things, “knowingly ... corruptly persuading] another person ... with intent to ... cause or induce any person to ... withhold testimony ... or ... document[s] ... from an official proceeding.” Id. at 708, 125 S.Ct. at 2137. We now join our sister circuits in concluding that § 1512(c)(2) also contains a nexus requirement as articulated in Aguilar. See Phillips, 583 F.3d at 1264; United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007); see also United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that Aguilar nexus requirement applies to § 1512(c)(2)). Aguilar relied on the principle that “a person lacking knowledge of a pending proceeding necessarily lack[s] the evil intent to obstruct.” 515 U.S. at 599, 115 S.Ct. at 2362 (discussing Pettibone v. United States, 148 U.S. 197, 207, 13 S.Ct. 542, 546-47, 37 L.Ed. 419 (1893)). That principle applies equally to § 1512(c)(2), because without knowledge of the forfeiture proceeding, Friske could not know that his actions were likely to affect it. We recognize that § 1512(f)(1) provides that “[f]or the purposes of [§ 1512] ... an official proceeding need not be pending or about to be instituted at the time of the offense.” But, as the Supreme Court observed in Arthur Andersen, “[i]t is ... one thing to say that a proceeding need not"
},
{
"docid": "408934",
"title": "",
"text": "The Court reasoned that it is “one thing to say that a proceeding ‘need not be pending or about to be instituted at the time of the offense,’ and quite another to say a proceeding need not even be foreseen.” Arthur Andersen, 544 U.S. at 707-08, 125 S.Ct. 2129. The Court concluded that a defendant cannot be convicted under §§ 1512(b)(2)(A) and (B) unless he or she “contémplateos]” a “particular official proceeding” in which the documents at issue might be material. Id. at 708; 125 S.Ct. 2129. Relying on Aguilar and Arthur Andersen, many of our sister circuits have applied the nexus requirement to 18 U.S.C. § 1512(c)(2). See, e.g., United States v. Tyler, 732 F,3d 241, 249-50 (3d Cir.2013) (applying the nexus requirement to “any prosecution brought under a § 1512 provision charging obstruction of justice involving an ‘official proceeding’ ”); United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S.-, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) (same); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that the nexus requirement applies to § 1512(c)(2)); United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007) (applying nexus requirement to § 1512(c)(2)). Further, we are aware of no circuit that has considered and rejected application of the nexus requirement to § 1512(c)(2). Considering the similarity of statutory language between § 1512(c)(2) and the catchall provision at issue in Aguilar, the application of the nexus requirement in Arthur Andersen to another provision of § 1512, and other circuits’ application of the nexus requirement to § 1512(c)(2), we hold that § 1512(c)(2) incorporates the nexus requirement set forth in Aguilar and Arthur Andersen. In other words, we hold that a successful prosecution under § 1512(c)(2) requires proof beyond a reasonable doubt that the defendant contemplated a particular, foreseeable proceeding, and that the contemplated proceeding constituted an “official proceeding,” which is defined under § 1515(a)(1)(A)"
},
{
"docid": "14149238",
"title": "",
"text": "1503 requires that a defendant’s obstructive conduct have a nexus in time, causation, or logic with the proceeding the defendant is charged with obstructing. Id. In other words, interference with the proceeding must be the natural and probable effect of the defendant’s conduct under § 1503. Id. In this way, we have explained that “[t]he nexus limitation is best understood as an articulation of the proof of wrongful intent that will satisfy the mens rea requirement of ‘corruptly’ obstructing.” United States v. Erickson, 561 F.3d 1150, 1159 (10th Cir. 2009) (quotations omitted). In Arthur Andersen LLP v. United States, 544 U.S. 696, 708, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), the Court extended the Aguilar nexus requirement to prosecutions under § 1512(b), which prohibits (among other acts) intentionally and corruptly persuading another person to withhold documents from an official proceeding. In that case, the Court relied on Aguilar to determine that although a proceeding need not be pending under the statute, it must be at least foreseeable to the defendant, because a defendant who “ ‘lacks knowledge that his actions are likely to affect [a] judicial proceeding ... lacks the requisite intent to obstruct.’ ” Id. (quoting Aguilar, 515 U.S. at 599, 115 S.Ct. 2357). The Supreme Court has not determined whether the Aguilar nexus requirement extends to § 1512(c)(2). Two circuits, however, have applied the Aguilar nexus requirement to § 1512(c)(2), see United States v. Reich, 479 F.3d 179, 186 (2d Cir.2007) (Sotomayor, J.); United States v. Carson, 560 F.3d 566, 584 (6th Cir.2009) (assuming arguendo that the Aguilar nexus requirement applies to § 1512(c)(2)), and we are aware of no court that has explicitly rejected this approach. Considering the similar statutory language of §§ 1503 and 1512(c)(2), the Supreme Court’s recent extension of the Aguilar nexus requirement to another subsection of § 1512, and other circuits’s application of the Aguilar nexus requirement to § 1512(c)(2), we hold that § 1512(c)(2) incorporates the nexus requirement as articulated by the Supreme Court in Aguilar. B. Sufficiency of the Evidence We now turn to the evidence adduced at trial. We review"
},
{
"docid": "17352027",
"title": "",
"text": "innocent of his witness tampering offenses. It recognized that other Circuits have held that Arthur Andersen’s nexus requirement applies to other VWPA provisions containing the official proceedings language. United States v. Tyler, No. 1:96-CR-106, 2012 WL 951479, at *9 (M.D.Pa. Mar. 20, 2012) (citing United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) and United States v. Matthews, 505 F.3d 698, 707-08 (7th Cir.2007)). However, it reasoned that because the conduct at issue in Arthur Andersen was “by itself not inherently wrong,” a nexus requirement was necessary to ensure that “innocent conduct is not punished,” whereas Tyler’s conduct involved “consciousness of wrongdoing” so no such nexus requirement was necessary. Id., at *9-10. Thus, it disagreed with the holdings of these Circuits and held that ArtI J,r Andersen’s nexus requirement does not apply to § 1512(a)(1)(A) and (C) and § 1512(b)(1) and (b)(3), because “Arthur Andersen has not altered the legal landscape for all section 1512 offenses.” Id., at *10. The District Court’s holding is in sharp contrast with our subsequent holding in Shavers. There we expressly held that the nexus requirement for official proceedings extends to § 1512(b)(1) and implied that the nexus requirement would apply likewise to other obstructive conduct involving an official proceeding proscribed by § 1512. We similarly conclude here that in any prosecution brought under a § 1512 provision charging obstruction of justice involving an “official proceeding,” the government is required to prove a nexus between the defendant’s conduct and a particular official proceeding before a judge or court of the United States that the defendant contemplated. Arthur Andersen, 544 U.S. at 708, 125 S.Ct. 2129. This holding is in line with our sister Circuits that have all concluded that the nexus requirement applies to other § 1512 provisions qualified by an official proceeding. See United States v. Bennett, 664 F.3d 997, 1013 (5th Cir.2011) (applying nexus requirement to § 1512(c)(2)), vacated on other grounds by — U.S. —, 133 S.Ct. 71, 183 L.Ed.2d 708 (2012); United States v. Friske, 640 F.3d 1288, 1292 (11th Cir.2011) (same); Phillips, 583 F.3d at 1263-64 (same); United States"
}
]
|
82136 | "of failure-to-appear offense at issue here — -a defendant’s failure to appear in response to a police citation without having first been arrested and released by the court. See U.S.S.G. § 2J1.5 (addressing a material witness's failure to appear); U.S.S.G. § 2J1.6 (addressing a defendant's failure to appear after being released). But, more importantly, the contempt of court guideline instructs courts to apply the guideline of an analogous crime. See U.S.S.G. § 2J1.1 (instructing courts to apply § 2X5.1 which in turn directs courts to apply ""the most analogous offense guideline”). In looking for such an ""analogous” guideline, several courts have applied those for failure to appear. See United States v. Jones, 278 F.3d 711, 716 (7th Cir.2002); see also REDACTED Thus, on examination, this argument only provides further support for the conclusion that the two offenses are indeed ""similar.”" | [
{
"docid": "20996901",
"title": "",
"text": "direct the Court to the guideline which the Court determines, under all the circumstances, to be the most analogous to the defendant’s offense. This question — the most analogous guideline — is the central issue in the sentencing of Mr. Ryan. II. ANALYSIS The starting point of analysis is U.S.S.G. § 2J1.1 (Contempt), which directs a court to what can only be described as the miscellaneous guideline, § 2X5.1, labelled “Other Offenses.” Section 2X5.1 calls for the application of the guideline most analogous to the defendant’s offense. The application note to § 2J1.1 explains why contempt is treated in this fashion: Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the Commission has not provided a specific guideline for this offense. A. The Case Law Framing The Most Analogous Offense The ease law describes a continuum for evaluating the range of “contemptuous conduct” covered by 18 U.S.C. § 401: At one end is obstruction of justice (§ 2J1.2); at the other is failure to appear as a material witness (§ 2J1.5); in the middle is misprision of a felony (§ 2X4.1). The continuum is defined by the defendant’s conduct and his intent. On the least culpable end is the defendant who acted in good faith; this could include a defendant who may have feared reprisals, and who, consequently, did not intend to obstruct justice. See United States v. Underwood, 880 F.2d 612, 620 (1st Cir.1989) (applying the failure to appear as a material witness sentencing guideline). At the other end is a defendant who not only intended to avoid testifying, but who also sought in bad faith to interfere with an ongoing investigation or prosecution. See United States v. Remini, 967 F.2d 754 (2d Cir.1992) (applying the obstruction of justice sentencing guideline). In between is the defendant who simply refuses to testify without providing a reason for his refusal. See United States v. Cefalu, 85"
}
]
| [
{
"docid": "18849334",
"title": "",
"text": "and is not addressed by the commentary to the Sentencing Guidelines.” United States v. Alpert, 989 F.2d 464, 457 (11th Cir.1993) (emphasis added), vacated on grant of rehearing en banc, 10 F.3d 753 (11th Cir.1993). Thus, this case presents a first-impression issue for our circuit. Analogy to Burton or other flight from arrest cases is inappropriate. Additionally, I find commentary from our court, the Sentencing Guidelines, and analogous cases in other circuits that encompass the situation of absconding during plea negotiations. Although “traditionally obstruction of justice only relates to post-offense conduct occurring during the pendency of some judicial proceeding,” we specifically have found “no such limiting principle in the Guidelines.” United States v. Cain, 881 F.2d 980, 982 (11th Cir.1989) (per curiam). Under section 3C1.1, “[ijfthe defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.” U.S.S.G. § 3C1.1 (emphasis added). By including the important qualification of “willfully,” the Guidelines explicitly state a mens rea requirement. The Guidelines further note that “[ojbstruetive conduct can vary widely in nature, degree of planning, and seriousness.” Id. comment, (n. 2). The section 3C1.1 commentary, providing specific examples where the obstruction of justice enhancement does and does not apply, is “non-exhaustive.” Id. comment, (nn. 3 & 4). “[Ejseaping or attempting to escape from custody before trial or sentencing; or willfully failing to appear, as ordered, for a judicial proceeding” are examples where the obstruction of justice enhancement applies, and they are analogous in their willful or purposeful planning requirement. Id. at comment, (n. 3(e)). Accordingly, the enhancement has been applied in instances of failure to appear, including nonjudicial settings. See United States v. Draper, 996 F.2d 982, 984-87 (9th Cir.1993) (failure to report to community corrections center during pretrial release); United States v. Teta, 918 F.2d 1329, 1332-1335 (7th Cir.1990) (failure to appear at arraignment); United States v. Perry, 908 F.2d 56, 59 (6th Cir.) (failure to report to probation officer while on bond pending sentencing), cert. denied, 498 U.S. 1002, 111"
},
{
"docid": "11184554",
"title": "",
"text": "court concluded that these exhibits were irrelevant because whether Remini intended to violate the statute “is immaterial, if he intended knowingly and consciously to violate [Jjudge Weinstein’s order.” The defense subsequently rested without presenting evidence and summations followed. The court instructed the jury that “willfully” means that the defendant understood the court order and consciously refused to obey it, adding that it would not be a defense if the defendant acted on the advice of counsel. The court then denied defense counsel’s motion for a mistrial based on the manner in which the court had addressed him during his summation. In June 1991, the jury found Remini guilty as charged. Sentencing Remini’s sentencing hearing was held in January 1992. Section 2J1.1 of the Guidelines, which applies to violations of 18 U.S.C. § 401, states that the court should apply § 2X5.1. Section 2X5.1 states that the court is to apply “the most analogous offense guideline.” The Probation Department concluded in its Presentence Report that the most analogous Guideline was U.S.S.G. § 2J1.2, for Obstruction of Justice, and the government agreed with the Presentence Report. Remini, on the other hand, contended that the appropriate Guideline was § 2J1.5, for Failure to Appear by a Material Witness. The court agreed with the Probation Department and the government and applied section 2J1.2, the Guideline for Obstruction of Justice. The court had earlier determined that “[tjhere was an intent to obstruct justice,” basing this determination on a taped conversation that the government had presented to the court in which John Gotti told a third party that he had instructed his lawyers to “[gjet my cell ready, get Joe Butch’s cell ready; and get Fat Georgie’s [Remini’s] cell ready. And nobody is taking the stand. Tell them to go fight! Don’t worry about it.” Judge Bartels found specifically that “the electronic intercepted conversations between John Gotti and Mr. Remini indicates a lack of good faith on the part of Mr. Remini.” The judge did reject, however, the Probation Department and government recommendation of a three-level increase under U.S.S.G. § 2J1.2(b)(2) for substantial interference with the"
},
{
"docid": "17664618",
"title": "",
"text": "appear under 18 U.S.C. § 3146(a)(1). He pleaded guilty and was sentenced by the district court (Judge Strand) to 5 months on the charge. Jernigan now appeals that sentence on the ground that he was already punished for his failure to appear by the enhancement applied to his earlier sentence. He claims that the subsequent sentence is barred by the sentencing guidelines and double jeopardy principles. We disagree. II. Standard of Review We review de novo the district court’s application of the sentencing guidelines. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, 504 U.S. 978, 112 S.Ct. 2954, 119 L.Ed.2d 576 (1992). Double jeopardy claims are also reviewed de novo. United States v. Blount, 34 F.3d 865, 867 (9th Cir.1994). III. Discussion A. Guidelines Application We are called upon to address the proper manner of sentencing under the sentencing guidelines when a defendant has been convicted in separate proceedings of both an underlying offense and of failure to appear for trial. The guidelines instruct that a conviction for failure to appear and a conviction on the underlying offense must be grouped together for sentencing purposes. U.S.S.G. § 2J1.6, comment, (n. 3). The offense level for that group of closely-related counts will be the offense level for the underlying offense increased by the two level adjustment ..., or the offense level for the obstruction offense, whichever is greater. U.S.S.G. § 3C1.1, comment, (n. 6). These “grouping” rules apply even in cases, like this one, where the defendant is sentenced at different times for the two separate crimes. Where the sentences are not imposed at the same time, the goal is to arrive at an appropriate incremental punishment for the latter offense “that most nearly approximates the sentence that would have been imposed had all the sentences been imposed at the same time.\" See U.S.S.G. § 5G1.3(e), comment, (n. 3) (emphasis added); United States v. Lechuga, 975 F.2d 397, 400-01 (7th Cir.1992) (when a defendant is convicted in separate trials of crimes that would be grouped if they had been consolidated in a one trial, the second trial"
},
{
"docid": "11184568",
"title": "",
"text": "§ 6002 include prosecution for misleading but literally true testimony, then he could appropriately have been prosecuted had he taken the stand and given misleading but literally true testimony. Either way, whether Remini could have ultimately been prosecuted for giving misleading testimony is immaterial in assessing the validity of Judge Weinstein’s order to Remini to testify because his order referred only to the statute, “§ 6002.” Because it is not relevant to the evaluation of Remini’s particular grant of immunity, we decline on this appeal to reach the issue of the scope of § 6002, and we find that the order in question satisfied both § 6002 and the Constitution. See Kastigar v. United States, 406 U.S. 441, 460-61, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972); cf. United States v. Gallo, 859 F.2d 1078, 1090 (2d Cir.1988) (Van Graafeiland, J., concurring), cert, denied, 490 U.S. 1089, 109 S.Ct. 2428, 104 L.Ed.2d 986 (1989). Appropriate Sentencing Guideline We next must calculate whether Remini was sentenced under the appropriate Guideline. The Guideline Index indicates that section 2J1.1 is the appropriate Guideline for violations of 18 U.S.C. § 401. This section, however, does not provide a Guideline for criminal contempt. Instead, it gives a cross reference that requires the application of Guideline 2X5.1, a Guideline which states that “[i]f ... no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control.” The district court found that the Obstruction of Justice Guideline, U.S.S.G. § 2J1.2, was the most analogous, and it therefore rejected Remini’s claim that the most analogous Guideline was 2J1.5, the Guideline for Failure to Appear by a Material Witness. Remini argues on appeal that we should adopt the First Circuit’s holding in United States v. Underwood, 880 F.2d 612 (1st Cir.1989), that in a case of criminal contempt for failure to testify at a criminal trial, the most analogous Guideline is 2J1.5. Remini continues that since Obstruction of Justice requires proof of bad faith while criminal contempt — according to the district"
},
{
"docid": "11069121",
"title": "",
"text": "— is already taken into account in setting the base offense level of the charged crime. We review de novo a district court’s interpretation of the Guidelines. See United States v. Meskini, 319 F.3d 88, 91 (2d Cir.2003). We reach the double counting issue notwithstanding the fact that the Guidelines are now only-advisory, see Booker, 125 S.Ct. at 756-57, because the district court on remand remains under an obligation to consider “the sentence that would have been imposed under the Guidelines.” Crosby, 397 F.3d at 113; see id. at 111 (“In order to fulfill [its] statutory duty to ‘consider’ the Guidelines, a sentencing judge will normally have to determine the applicable Guidelines range.”). Our resolution of Maloney’s double counting objection on appeal will assist the district court in fulfilling that obligation. Though no Guidelines provision has been promulgated specifically for violations of a child support obligation, Appendix A of the Guidelines provides that sentences for offenses under 18 U.S.C. § 228 should be determined in accordance with U.S.S.G. § 2J1.1. Section 2J1.1, entitled “Contempt,” provides that courts should apply U.S.S.G. § 2X5.1, entitled “Other Offenses.” Section 2X5.1, in turn, instructs courts to apply the “most analogous offense guideline.” Pursuant to Application Note 2 of § 2J1.1, the most analogous guideline for offenses involving violations of 18 U.S.C. § 228 is U.S.S.G. § 2B1.1, the section that encompasses crimes involving theft, property destruction and fraud. Importantly, the Guidelines also provide that the incorporation of a guideline by cross-reference requires incorporation of the “entire” cross-referenced guideline, including “the base offense level, specific offense characteristics, cross references, and special instructions.” U.S.S.G. § 1B1.5. Thus, through these various provisions, the Guidelines unmistakably provide that courts imposing sentences for offenses involving the willful failure to pay court-ordered child support under 18 U.S.C. § 228 should apply the general fraud guideline, § 2B1.1, including its enhancement provisions. Maloney argues that application of the two-point enhancement under § 2Bl.l(b)(7)(C) is nevertheless inappropriate because the conduct justifying that enhancement is already considered in setting the base offense level under § 2Bl.l(a). That is, because violation of the child"
},
{
"docid": "15367357",
"title": "",
"text": "base offense level under that section should be “6 levels lower than the offense level for the underlying offense ...” Application Note 1 to U.S.S.G. § 2X3.1 defines “underlying offense” as “the offense as to which the defendant is convicted of being an accessory.” Obviously, this does not fit Mr. Renteria who was not “convicted of being an accessory.” Indeed, the Court of Appeals for the Tenth Circuit has ruled that when U.S.S.G. § 2X3.1 is applied by way of the cross-reference in U.S.S.G. § 2J1.3(c), the Application Notes are not relevant. See United States v. Glover, 52 F.3d 283, 285 (10th Cir.1995). The section of the United States Sentencing Guidelines that relates to “the underlying offense” referred to in U.S.S.G. § 2X3.1 appears to be U.S.S.G. § 2Dl.l(a)(3) which directs the Court to offense levels specified in the Drug Quantity Table of the Guidelines Manual. The Drug Quantity Table appears in Section 2Dl.l(c). However, it seems- questionable that the Drug Quantity Table would apply in the face of the Court’s finding that the government failed to prove any drug quantity attributable to Mr. Renteria. The only sub-paragraph that could conceivably apply under this finding would be U.S.S.G. § 2D.l(c)(17), which describes the lowest quantities of various drugs in the Drug-Quantity Table and refers to “Less than 250G of Marihuana.” An offense level 6 attaches to U.S.S.G. § 2Dl.l(c)(17). An offense level of 6 with Mr. Renteria’s criminal history category of III establishes a guideline imprisonment range of 0-6 months, the upper limit of which is much shorter than the time Mr. Renteria has already served in federal prison. Hence, it seems illogical at this point to apply the guidelines in this manner, i.e., starting with Section 2J1.3(c) and following them through Section 2X3.1 to Section 2Dl.l(c)(17). Under these circumstances, another approach to fashioning the proper sentence would be to follow the direction of U.S.S.G. § 2X5.1 which states that if the offense is one “for which no guideline expressly has been promulgated, apply the most analogous offense guideline.” Where, as here, the failure to establish a drug quantity attributable"
},
{
"docid": "11580718",
"title": "",
"text": "history score. Fisher asserts that the district court erred in sentencing him on the conviction for felon in possession of a firearm. We review de novo the district court’s interpretation of the Sentencing Guidelines. United States v. Newland, 116 F.3d 400, 402 (9th Cir.1997). We conclude that the district court correctly increased Fisher’s criminal history score by two points pursuant to U.S.S.G. § 4A1.1(d), which provides for such an increase “if the defendant committed the instant offense while under any criminal justice sentence, including ... escape status.” The government provided the court with evidence indicating that, at the time Fisher violated § 922(g), California had outstanding a bench warrant for Fisher’s arrest because he had failed to report to begin serving a sentence in connection with a previous conviction. The Sentencing Guidelines provide that “[f]or the purposes of § 4Al.l(d) and (e), failure to report for service of a sentence of imprisonment shall be treated as an escape from such sentence.” U.S.S.G. § 4A1.2(n) (1996). Therefore, Fisher was under a criminal justice sentence for the purposes of the Sentencing Guidelines. b. Computation of sentence Fisher notes that the contempt of court indictment charged him with violating several conditions of his release, including failure to report for urinalysis and failure to appear at all proceedings as required. Fisher then complains that the district court erred because it did not explain whether it based the imposition of a 33 month sentence on the former or the latter violation. In the circumstances of this case, there was no need for the district court to differentiate between the two violations. The Sentencing Guidelines do not provide a general base offense level for contempt of court. Instead, they require district courts to apply the base offense level for the most analogous offense. The most analogous offense will vary depending on the circumstances of a particular case. See U.S.S.G. §§ 2J1.1, 2X5.1. Here, the district court applied the base offense level for failure to appear. We agree that failure to appear is the most analogous offense in this case, whether the analogy is applied to a"
},
{
"docid": "11184569",
"title": "",
"text": "2J1.1 is the appropriate Guideline for violations of 18 U.S.C. § 401. This section, however, does not provide a Guideline for criminal contempt. Instead, it gives a cross reference that requires the application of Guideline 2X5.1, a Guideline which states that “[i]f ... no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control.” The district court found that the Obstruction of Justice Guideline, U.S.S.G. § 2J1.2, was the most analogous, and it therefore rejected Remini’s claim that the most analogous Guideline was 2J1.5, the Guideline for Failure to Appear by a Material Witness. Remini argues on appeal that we should adopt the First Circuit’s holding in United States v. Underwood, 880 F.2d 612 (1st Cir.1989), that in a case of criminal contempt for failure to testify at a criminal trial, the most analogous Guideline is 2J1.5. Remini continues that since Obstruction of Justice requires proof of bad faith while criminal contempt — according to the district court — does not, it would be unfair to apply § 2J1.2. Such application, Remini claims, penalizes the contemnor as though she or he had evidenced a level of intent that the government was not required to prove and that the defendant was not given the opportunity to contest. Appellant's argument has a surface appeal that disappears on further analysis. First, we note that the Commentary to section 2J1.1 explicitly states that “[i]n certain cases, the offense conduct will be sufficiently analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply.” Clearly, then, the Guidelines contemplate application of the Obstruction of Justice Guideline to criminal contempt in some instances. In Underwood, moreover, the First Circuit did not hold that whenever a contemnor has disobeyed an order to testify, the appropriate Guideline is the one reserved for failure of a material witness to appear. Quite to the contrary, Underwood was a special case. “Underwood, according to the district court’s express findings, did not intend to ‘obstruct justice;’ he simply intended not to testify.” 880"
},
{
"docid": "11069122",
"title": "",
"text": "that courts should apply U.S.S.G. § 2X5.1, entitled “Other Offenses.” Section 2X5.1, in turn, instructs courts to apply the “most analogous offense guideline.” Pursuant to Application Note 2 of § 2J1.1, the most analogous guideline for offenses involving violations of 18 U.S.C. § 228 is U.S.S.G. § 2B1.1, the section that encompasses crimes involving theft, property destruction and fraud. Importantly, the Guidelines also provide that the incorporation of a guideline by cross-reference requires incorporation of the “entire” cross-referenced guideline, including “the base offense level, specific offense characteristics, cross references, and special instructions.” U.S.S.G. § 1B1.5. Thus, through these various provisions, the Guidelines unmistakably provide that courts imposing sentences for offenses involving the willful failure to pay court-ordered child support under 18 U.S.C. § 228 should apply the general fraud guideline, § 2B1.1, including its enhancement provisions. Maloney argues that application of the two-point enhancement under § 2Bl.l(b)(7)(C) is nevertheless inappropriate because the conduct justifying that enhancement is already considered in setting the base offense level under § 2Bl.l(a). That is, because violation of the child support obligation is precisely what triggers application of the base offense level provision, Maloney contends that the district court engaged in impermissible double counting by adding a two-point enhancement for the same conduct. We have repeatedly held, however, that a district court calculating a Guidelines sentence may apply multiple Guidelines provisions based on the same underlying conduct where that is the result clearly intended by Congress and the Sentencing Commission. While such calculations may involve “double counting” in a literal sense, they do not involve impermissible double counting. See, Meskini, 319 F.3d at 91 (“This court has repeatedly recognized that it is within the Sentencing Commission’s and Congress’s prerogative to adopt double counting.... Impermissible double counting is the judicial augmentation of a defendant’s sentence in contravention of the applicable statute or Sentencing Guideline.” (citations and internal quotation marks omitted)); United States v. Aska, 314 F.3d 75, 78 (2d Cir.2002); United States v. Torres-Echavarria, 129 F.3d 692, 699 (2d Cir.1997); see also United States v. Pedragh, 225 F.3d 240, 247 (2d Cir.2000) (explaining that “double counting"
},
{
"docid": "20996917",
"title": "",
"text": "conditions, that the defendant be under home confinement without electronic monitoring, and that the defendant be prohibited from possessing a firearm or other dangerous weapon. SO ORDERED. . A bench trial was held on October 16, 1996, at which Ryan stipulated to all material facts. Ryan's sole purpose in exercising his right to trial was to preserve certain constitutional claims. Ryan alleged that the criminal contempt prosecution following a civil contempt finding and imprisonment violated his rights under the Double Jeopardy Clause of the Constitution. These claims were rejected in a decision dated November 6, 1996. . § 2X5.1 provides in pertinent part: If the offense is a felony or Class A misdemean- or for which no guideline expressly has been promulgated, apply the most analogous offense guideline. . U.S.S.G. § 2X5.1 provides that if there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control. Section 3553(b) requires that \"the court ... impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2)” which includes \"the need for the sentence to be imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant ...” . There is a parallel to wartime offenses. On one end is a conscientious objector who chooses not to participate in a war. On the other is someone who affirmatively tries to disrupt the war effort. In between is someone who simply declines to participate. . See also United States v. Ortiz, 84 F.3d 977 (7th Cir.), cert. denied, -U.S. -, 117 S.Ct. 250, 136 L.Ed.2d 177 (1996). In Ortiz, the court followed Underwood in upholding a sentence imposed by the district court pursuant to § 2J1.5 (failure to appear by material witness). The court reasoned that although the defendant Hurtado’s refusal to testify despite a grant of immunity was somewhat analogous to obstruction of justice, failure to appear by material witness was \"a much better"
},
{
"docid": "6282187",
"title": "",
"text": "Guideline specifies that “[f]or offenses involving the willful failure to pay court-ordered child support (violations of 18 U.S.C. § 228), the most analogous guideline is § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft). The amount of the loss is the amount of child support that the defendant willfully failed to pay.” U.S.S.G. § 2J1.1, appl. n. 2. Appellant’s principal argument against application of the larceny guideline is that it does not apply to misappropriation of one’s own property. However, Application Note 2 specifically contemplates using the guideline for such misappropriation. Furthermore, the larceny guideline has been used to sentence those convicted of theft of property held in trust for another. United States v. Nolan, 136 F.3d 265, 267-68, 273 (2d Cir.1998) (embezzlement of pension funds by pension fund manager); United States v. Arjoon, 964 F.2d 167, 168-69 (2d Cir.1992) (embezzlement by bank employee of stock held by bank as collateral for loan). But see United States v. Tankersley, 296 F.3d 620, 621-22 (7th Cir.2002) (applying obstruction of justice guideline to a criminal contempt offense where the defendant sold his own yacht, which was subject to freeze order in underlying civil case, and hid proceeds of sale). Although the obstruction of justice Guideline is frequently used as the Guideline most analogous to a contempt offense, the application note to Section 2J1.1 states only that “[i]n certain cases, the [contemptuous] offense conduct will be sufficiently analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply.” U.S.S.G. § 2J1.1, appl. n. 1. “[C]ourts cannot be bound to sentence under the Obstruction of Justice Guideline any time they find an intent to obstruct justice.” Cefalu, 85 F.3d at 968. Rather, a court may consider, inter alia, (i) whether the contumacious conduct resembles the offenses listed in the obstruction guideline and (ii) whether the lack of flexibility of the obstruction guideline is suited to adequately punishing the contempt offense. See id. at 967. The Background section of the obstruction of justice guideline describes the “[njumerous offenses of varying seriousness” that may constitute obstruction of justice as follows: using threats or force to"
},
{
"docid": "11580719",
"title": "",
"text": "purposes of the Sentencing Guidelines. b. Computation of sentence Fisher notes that the contempt of court indictment charged him with violating several conditions of his release, including failure to report for urinalysis and failure to appear at all proceedings as required. Fisher then complains that the district court erred because it did not explain whether it based the imposition of a 33 month sentence on the former or the latter violation. In the circumstances of this case, there was no need for the district court to differentiate between the two violations. The Sentencing Guidelines do not provide a general base offense level for contempt of court. Instead, they require district courts to apply the base offense level for the most analogous offense. The most analogous offense will vary depending on the circumstances of a particular case. See U.S.S.G. §§ 2J1.1, 2X5.1. Here, the district court applied the base offense level for failure to appear. We agree that failure to appear is the most analogous offense in this case, whether the analogy is applied to a failure to report for urinalysis or to a failure to appear at other proceedings. The failure to report for urinalysis is therefore sufficient to support the district court’s selection of the base offense level. c. Acceptance of responsibility. The Sentencing Guidelines provide for a two-point offense level reduction if “the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1. We review for clear error the district court’s decision to deny Fisher an acceptance of responsibility reduction. See United States v. Thompson, 80 F.3d 368, 370 (9th Cir.1996). The transcript of the sentencing hearing indicates that the trial judge denied the two-point reduction because “[Fisher’s] defense was a denial of the charges.” The trial transcript, however, reveals that Fisher acknowledged his guilt on the contempt of court charge. The prosecutor stated in her closing argument that Fisher’s attorney had acknowledged Fisher’s guilt on the contempt charge. Moreover, Fisher’s attorney explained to the jury in his closing argument that: I told you at the beginning of the trial that [Fisher] was guilty of Count"
},
{
"docid": "15231713",
"title": "",
"text": "Simmons, 215 F.3d 737, 743 (7th Cir.2000) (upholding upward departure based on Guideline § 5K2.0 for defendant’s failure to comply with plea agreement requiring him to testify in future proceedings). On January 4, 2001, the district court entered an order stating that as in Simmons, 215 F.3d at 743, Jones’ actions warranted an upward departure in the amount necessary to take away the benefit conferred upon Jones in 1996. The district court calculated that the benefit of the 1996 downward departure was 66 months, and it added this amount to the 10 month sentence that was the upper end of the applicable range. Thus, the district court sentenced Jones to 76 months imprisonment on each of the three criminal contempt counts, to be served concurrently. II. Analysis A. Standard of Review On appeal, Jones alleges that: 1) the district court’s grounds for applying the upward departure were improper and 2) the extent of the upward departure in this case was unreasonable. We review a district court’s decision to depart from the Sentencing Guidelines for abuse of discretion and accept the findings of fact underlying the departure unless they are clearly erroneous. See id. at 741. Jones does not contend that the district court’s findings of fact were in error. Further, we review the district court’s determination of the extent of the departure for abuse of discretion, and “will uphold the extent of the departure taken as long as it is reasonable and adequately reflects the structure of the Guidelines.” Id. (quotation omitted). B. Appropriateness of Grounds for Departure The Sentencing Guidelines direct district courts to apply Guideline § 2X5.1 when sentencing defendants for criminal contempt. See U.S.S.G. § 2J1.1. In turn, Guideline § 2X5.1 directs courts to apply the “most analogous guideline,” U.S.S.G. § 2X5.1, because “misconduct constituting contempt varies significantly.” U.S.S.G. § 2J1.1. In this case, the district court chose to sentence Jones under Guideline § 2J1.5 (Failure to Appear by Material Witness) because Jones’ criminal contempt consisted of failing to testify before Scott’s grand jury and at Scott’s trials, as he was required to do under the Agreement."
},
{
"docid": "12096737",
"title": "",
"text": "other hand, a sentence “imposed as a result of an incorrect application of the sentencing guidelines” must be reversed even if reasonable. 18 U.S.C. § 3742(e)(2). Findings of fact that underlie the district court’s sentence are reviewed under a clearly erroneous standard. 18 U.S.C. § 3742(d). In the case before us, Gabay was convicted of criminal contempt. Within the scope of the sentencing guidelines, the guideline applicable to criminal contempt (18 U.S.C. § 401) is § 2J1.1. That provision stated, “the court shall impose a sentence based on stated reasons and the purpose for sentencing set forth in 18 U.S.C. § 3553(a)(2).” The Application Note to § 2J1.1 expounds: Because misconduct constituting contempt varies significantly and the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct has on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent, the commission has not provided a specific guideline for this offense. See, however, § 2X5.1. Section 2X5.1 instructs the district court to look to analogous guidelines. The district court reported during the sentencing hearing that, “there is no analogous guideline and the court must base its sentence on the reasons and purposes as set forth in section 2(J)1.1 of the guidelines, and the court has considered the commission notes that misconduct constituting contempt varies significantly.” Gabay argues that § 2J1.6, Failure to Appear by Defendant, is an analogous guideline. Whether a guideline is or is not analogous to a defendant’s criminal activity is a question of law. Therefore, this court reviews the district court’s finding de novo. The trial court determined that Gabay’s actions were much more abhorrent than just failing to appear. We do not find the trial court’s determination to be erroneous. The videotape, the extensive effort required for recapture, and the fact that Gabay’s flight resulted in two trials, are sufficient aggravating circumstances to find that this was not a simple “failure to appear.” The question still remains before this court whether the 60 months sentence for contempt was proper. Since there is no"
},
{
"docid": "5399191",
"title": "",
"text": "of his breach of secrecy, on November 6, 1991, Mr. Holloway was indicted on two counts of criminal contempt in violation of 18 U.S.C. § 401. Pursuant to a plea agreement in which the government agreed to drop Count One of the indictment, Mr. Holloway pled guilty to Count Two on January 14, 1992. B. District Court Proceedings The district court accepted Mr. Holloway’s guilty plea and calculated his sentence under the Sentencing Guidelines. Because Mr. Holloway does not contest the actual calculation of his sentence, we shall not address the district court’s findings on that issue. Instead, we shall set forth the facts pertinent to the district court’s decision to sentence Mr. Holloway to probation and home confinement. In determining Mr. Holloway’s sentence, the district court initially looked to U.S.S.G. § 2J1.1, the sentencing guideline for contempt convictions. However, § 2J1.1 makes clear that, because of the widé variety of circumstances in which contempt can occur, the Sentencing Commission provided no specific guideline calculation for this offense. U.S.S.G. § 2J1.1, Application Note. Instead, the section refers a sentencing court to § 2X5.1. Section 2X5.1 states, inter alia, that, for any offense for which no specific guideline has been promulgated, the most analogous offense guideline should be applied. Following this directive, the district court applied § 2J1.2, the obstruction of justice guideline, as the most analogous. This section does not provide for a situation in which the defendant lacks the intent to obstruct justice. Therefore, the district court departed downward from the stated sentencing range because Mr. Holloway had not intended to obstruct justice or to hamper a federal investigation when he broke his oath of secrecy. 789 F.Supp. 957. The court also reduced Mr. Holloway’s offense level on the basis of his acceptance of responsibility. The .foregoing steps produced an offense level of four and criminal history category of I; therefore, while incarceration was not required under the Guidelines, a sentencing range of zero to six months’ imprisonment was appropriate. The district court believed that, under the contempt statute, the punishments listed are disjunctive. Thus, the court thought it"
},
{
"docid": "1559332",
"title": "",
"text": "it contained a misstatement of the law. See United States v. Johnson, 767 F.2d 1259, 1269 (8th Cir.1985). . United States v. McQuarry, 726 F.2d 401 (8th Cir.1984) (per curiam), provides support. McQuarry held that the district court did not abuse its discretion in refusing to instruct the jury to consider evidence of the defendant’s failure to flee from the site of the crime as evidence of his innocence. Id. at 402. And, in a concurrence, Judge McMillian stated that, in his opinion, \"instructions on flight should be eliminated.\" Id. at 403. . Hankins's conviction for use of a firearm was exempted from application of the multiple count rules. See U.S.S.G. § 3D1.1, Application Note 1 (effective November 1, 1989). . The parties emphasize a line of cases, illustrated by United States v. Jimenez, 897 F.2d 286 (7th Cir.1990) and United States v. Bell, 716 F.Supp. 1207 (D.Minn.1989), as part of their arguments on this issue. These cases are not analogous to the case at hand and therefore do not apply. . This application note was amended effective November 1, 1990, to include two additional offenses: § 2J1.5 (Failure to Appear by Material Witness); and § 2J1.6 (Failure to Appear by Defendant). See U.S.S.G. § 3C1.1, Application Note 6 (effective November 1, 1990). . The second paragraph of Application Note 5 in § 3D 1.2 provides an example analogous to the present case: A cross-reference to another offense guideline does not constitute \"a specific offense characteristic ... or other adjustment” within the meaning of subsection (c). For example, the guideline for bribery of a public official contains a cross-reference to the guideline for accessory after the fact for the offense that the bribe was to facilitate. Nonetheless, if the defendant were convicted of one count of securities fraud and one count of bribing a public official to facilitate the fraud, the two counts would not be grouped together by virtue of the cross-reference. If, however, the bribe was given for the purpose of hampering a criminal investigation into the offense, it would constitute obstruction and under § 3C1.1 would result"
},
{
"docid": "23387071",
"title": "",
"text": "is § 2B1.1, see U.S.S.G. App’x A, § 2B1.1 is also the “most analogous offense guideline” for 49 U.S.C. § 46306(b)(7). U.S.S.G. § 2X5.1; cf. Crawford, 185 F.3d at 1027 (“[T]he Statutory Index identifies section 2D1.1 as the appropriate guideline for violations of section 841(a).... Thus, for Crawford, section 2D1.1 — relating to drug trafficking — and not section 2D1.2 — relating to protected locations or individuals— is presumptively the guideline ‘most applicable to the offense of conviction.’ ”) (quoting U.S.S.G. § 1B1.2(a) (1998)). United States v. Fisher, 137 F.3d 1158 (9th Cir.1998), cited by the government, is not to the contrary. Although Fisher notes that “[t]he most analogous offense will vary depending on the circumstances of a particular case,” it addresses a different context from the present one. Id. at 1167. As a catchall provision, § 2X5.1 can apply in situations other than the initial selection of a Chapter Two guideline, a situation that is governed by Crawford and Takahashi. For example, it also applies in some instances in which the relevant guideline, chosen pursuant to § lB1.2(a), requires a look to § 2X5.1 and a resultant search for an analogous guideline. Fisher involves such a case. In Fisher, the defendant was convicted of contempt of court. 137 F.3d at 1161. Contempt has its own assigned Chapter Two guideline, § 2J1.1. That guideline provides, in full, that district judges should “[a]pply § 2X5.1 (Other Offenses).” U.S.S.G. § 2J1.1. The commentary to § 2J1.1 explicitly invites the sentencing court to consider offense conduct in applying that guideline, noting that “the nature of the contemptuous conduct, the circumstances under which the contempt was committed, the effect the misconduct had on the administration of justice, and the need to vindicate the authority of the court are highly context-dependent.” U.S.S.G. § 2J1.1 cmt. 1. Because the requirements of § lB1.2(a) are already satisfied by the selection of § 2J1.1, however, different rules apply to § 2X5.1 in that context. Finally, the government suggests for the first time in a 28(j) letter that the district court’s error was harmless. That argument, however, was available"
},
{
"docid": "15231714",
"title": "",
"text": "of discretion and accept the findings of fact underlying the departure unless they are clearly erroneous. See id. at 741. Jones does not contend that the district court’s findings of fact were in error. Further, we review the district court’s determination of the extent of the departure for abuse of discretion, and “will uphold the extent of the departure taken as long as it is reasonable and adequately reflects the structure of the Guidelines.” Id. (quotation omitted). B. Appropriateness of Grounds for Departure The Sentencing Guidelines direct district courts to apply Guideline § 2X5.1 when sentencing defendants for criminal contempt. See U.S.S.G. § 2J1.1. In turn, Guideline § 2X5.1 directs courts to apply the “most analogous guideline,” U.S.S.G. § 2X5.1, because “misconduct constituting contempt varies significantly.” U.S.S.G. § 2J1.1. In this case, the district court chose to sentence Jones under Guideline § 2J1.5 (Failure to Appear by Material Witness) because Jones’ criminal contempt consisted of failing to testify before Scott’s grand jury and at Scott’s trials, as he was required to do under the Agreement. We conclude that the district court correctly chose the most analogous Guideline. See Simmons, 215 F.3d at 742 (stating that Guideline § 2J1.5 defines the “most closely analogous [behavior] to [a] refusal to comply with an order to testify”). The district court then noted that the applicable sentencing range under Guideline § 2J1.5 was 4 to 10 months imprisonment. After choosing the applicable sentencing range, the district court could apply an upward departure if it found that Jones’ behavior was outside of the “heartland” of conduct embodied by Guideline § 2J1.5. See Simmons, 215 F.3d at 742. In other words, if Jones’ behavior was more egregious than the behavior normally punished under Guideline § 2J1.5, then the district court was permitted to apply an upward departure. See id. Here, the district court applied an upward departure because Jones’ refusals to testify amounted to a breach of the Agreement. Further, the benefit of the Agreement had already been conferred to Jones in the form of a downward departure applied to his drug sentence. We addressed the"
},
{
"docid": "6282186",
"title": "",
"text": "loss amount finding. 1. Use of Larceny Guideline We generally review a district court’s selection of an applicable guideline de novo. United States v. Cefalu, 85 F.3d 964, 968 n. 6 (2d Cir.1996). “However, the determination under USSG § 2X5.1 as to whether there is a single ‘most analogous offense guideline,’ and, if not, how to proceed under 18 U.S.C. § 3553(b), involves the application of a guideline to the facts of a case, and 18 U.S.C. § 3742(e) mandates that we give ‘due deference’ to such applications by the district court, rather than review them de novo.” Id; see also United States v. Versaglio, 96 F.3d 637, 638 (2d Cir.1996) (determination of most analogous offense guideline is “predominantly an application of a guideline to the facts, a decision to which we should give due deference”). The court applied the larceny Guideline because it found that appellant’s contumacious conduct amounted to stealing money from the Palm Beach Princess that should have gone to his victims or creditors. We agree. An application note to the contempt Guideline specifies that “[f]or offenses involving the willful failure to pay court-ordered child support (violations of 18 U.S.C. § 228), the most analogous guideline is § 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft). The amount of the loss is the amount of child support that the defendant willfully failed to pay.” U.S.S.G. § 2J1.1, appl. n. 2. Appellant’s principal argument against application of the larceny guideline is that it does not apply to misappropriation of one’s own property. However, Application Note 2 specifically contemplates using the guideline for such misappropriation. Furthermore, the larceny guideline has been used to sentence those convicted of theft of property held in trust for another. United States v. Nolan, 136 F.3d 265, 267-68, 273 (2d Cir.1998) (embezzlement of pension funds by pension fund manager); United States v. Arjoon, 964 F.2d 167, 168-69 (2d Cir.1992) (embezzlement by bank employee of stock held by bank as collateral for loan). But see United States v. Tankersley, 296 F.3d 620, 621-22 (7th Cir.2002) (applying obstruction of justice guideline to a criminal contempt offense"
},
{
"docid": "6282185",
"title": "",
"text": "This argument is entirely mer-itless and is irrelevant in any case, because the massive fraud underlying the SEC Action itself certainly constitutes “a similar instance of large scale fraudulent misconduct established by an adjudication in a Securities and Exchange Commission enforcement proceeding” sufficient to merit an upward departure. U.S.S.G. § 4A1.3. Because we do not have before us the issue of the reasonableness of the extent of any upward departure — to be determined on remand — we need not address it, other than to say that nothing in this opinion necessarily precludes a reimposition of the original sentence. This issue can be reviewed if and when it arises. See United States v. Cox, 299 F.3d 143, 146 (2d Cir.2002) (reviewing extent of departure for reasonableness). c) Application of the Larceny Guideline and Calculation of Loss Amount The Sentencing Guidelines direct that courts “apply the most analogous guideline” to criminal contempt offenses. U.S.S.G. §§ 2J1.1, 2X5.1. We affirm the district court’s determination that the larceny Guideline was the most analogous, as well as the court’s loss amount finding. 1. Use of Larceny Guideline We generally review a district court’s selection of an applicable guideline de novo. United States v. Cefalu, 85 F.3d 964, 968 n. 6 (2d Cir.1996). “However, the determination under USSG § 2X5.1 as to whether there is a single ‘most analogous offense guideline,’ and, if not, how to proceed under 18 U.S.C. § 3553(b), involves the application of a guideline to the facts of a case, and 18 U.S.C. § 3742(e) mandates that we give ‘due deference’ to such applications by the district court, rather than review them de novo.” Id; see also United States v. Versaglio, 96 F.3d 637, 638 (2d Cir.1996) (determination of most analogous offense guideline is “predominantly an application of a guideline to the facts, a decision to which we should give due deference”). The court applied the larceny Guideline because it found that appellant’s contumacious conduct amounted to stealing money from the Palm Beach Princess that should have gone to his victims or creditors. We agree. An application note to the contempt"
}
]
|
438540 | a bankrupt for approval or disapproval, votes that are not cast in “good faith” are not to be counted. Congress intentionally left “good faith” undefined. 5 Collier on Bankruptcy paragraph 1126.05 [1] (1988). It is well settled, however, that good faith in casting a vote does not require of the creditor a selfless disinterest. Each creditor is expected to cast his vote in accordance with his perception of his own self-interest, but he may not act with an ulterior or coercive purpose. One who casts his vote with a purpose of coercing payment to him of more than he might reasonably perceive as his fair share of the debtor’s estate, does not cast his vote in good faith. See, e.g., REDACTED In re Featherworks Corp., 36 B.R. 460, 463 (E.D.N.Y.1984); In re P-R Holding Corp., 147 F.2d 895, 897-98 (2d Cir.1945); 5 Collier on Bankruptcy paragraph 1126.05[1] (1988); see also H.R.Rep. No. 595, 95th Cong., 1st Sess. 411, reprinted in 1978 U.S. Code Cong. & Admin. News 5787, 5963, 6367. No one suggests that Insinger cast its negative votes with an intention or expectation that some one else purchase Insinger’s interest at a price that would give Insinger an unfair advantage over other creditors. In the good faith inquiry, however, there is a broader rule of disqualification. A creditor may not cast his vote for an ulteri- or purpose | [
{
"docid": "22097516",
"title": "",
"text": "944. In re Keystone Realty Holding Co., 117 F. 2d 1003; Dana v. S. E. C., 125 F. 2d 542; cf. Amick v. Mortgage Security Corp., 30 F. 2d 359. Boese v. King, 108 U. S. 379, 385-386; Sampsell v. Imperial Paper Corp., 313 U. S. 215, 219; cf. Case v. Los Angeles Lumber Co., 308 U. S. 106. See also 66 Pa. L. Rev. 224; Senate Document No. 65, 72nd Cong., 1st Sess., 6,10,49-93. “See. 203. If the acceptance or failure to accept a plan by the holder of any claim or stock is not in good faith, in the light of or irrespective of the time of acquisition thereof, the judge may, after hearing upon notice, direct that such claim or stock be disqualified for the purpose of determining the requisite majority for the acceptance of a plan.” 52 Stat. 894. A year before the House Committee on the Judiciary held its extensive hearings on the Chandler Act, a Circuit Court of Appeals held that a creditor could not be denied the privilege of voting on a reorganization plan under § 77B, although he bought the votes for the purpose of preventing confirmation unless certain demands of his should be met. Texas Hotel Corp. v. Waco Development Co., 87 F. 2d 395. The hearings make clear the purpose of the Committee to pass legislation which would bar creditors from a vote who were prompted by such a purpose. To this end they adopted the “good faith” provisions of § 203. Its purpose was to prevent creditors from participating who “by the use of obstructive tactics and hold-up techniques exact for themselves undue advantages from the other stockholders who are cooperating.” Bad faith was to be attributed to claimants who opposed a plan for a time until they were “bought off”; those who “refused to vote in favor of a plan unless . . . given some particular preferential advantage.” Hearings on Revision of the Bankruptcy Act before the Committee on the Judiciary of the House of Representatives, 75th Cong., 1st Sess., on H. R. 6439, Serial 9, pp."
}
]
| [
{
"docid": "1100193",
"title": "",
"text": "Boat Co., 8 B.R. 432, 434 (Bankr.W.D.Mo.1981) (quoting Young v. Higbee Co., 324 U.S. 204, 210-11, 65 S.Ct. 594, 598, 89 L.Ed. 890 (1945)). Mere selfishness does not rise to the level of bad faith, however, and self-dealing and good faith are not mutually exclusive. In re Frank Fehr Brewing Co., 268 F.2d 170, 180 (6th Cir.1959); see also In re Gilbert, 104 B.R. at 216 (citing In re Featherworks Corp., 36 B.R. 460, 462 (E.D.N.Y.1984). The Code does not require, nor could it reasonably expect, creditors to act with “selfless disinterest”; each creditor is expected to cast his vote “in accordance with his perception of his own self-interest.” See In re Federal Support Co., 859 F.2d at 19; see also In re Gilbert, 104 B.R. at 216. “If a selfish motive were sufficient to condemn reorganization policies of interested parties, very few, if any, would pass mustard [sic, muster].” In re A.D.W., Inc., 90 B.R. 645, 651 (Bankr.D.N.J.1988). If a creditor sufficiently manifests a proper motive for the questioned activity, courts have been unwilling to second-guess the wisdom of the creditor’s exercise of business judgment. See id. However, if the creditor fails to convince the court that the questioned activity was motivated by business judgment, then the court must inquire into the creditor’s motives. Id. The standard is both inherently fact-intensive and difficult to apply, for what appears to be enlightened self-interest to a creditor may well appear to be an ulterior motive to the debtor. In an attempt to brighten the line between ulterior motives and self-interest, some courts have analyzed the specific interest being benefitted by the questioned activity. See In re P-R Holding Corp., 147 F.2d 895, 897 (2d Cir.1945); see also In re MacLeod Co., Inc., 63 B.R. at 655 and In re Featherworks Corp., 36 B.R. at 463 (both citing P-R Holding Corp. with approval). In P-R Holding Corp., the court stated that “when the [questioned activity] is in aid of an interest other than an interest as a creditor, [it] may amount to bad faith_” In re P-R Holding Corp., 147 F.2d at"
},
{
"docid": "6399141",
"title": "",
"text": "F.2d 170, 180 (6th Cir.1959), In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989) and In re Feather-works Corp., 36 B.R. 460, 462 (E.D.N.Y. 1984). Debtor argues that, objectively viewed, Sweetwater’s rejection of the Plan does not make economic sense, so it must have another, improper purpose in rejecting it. It is for Sweetwater, however, and Sweet-water alone, to decide what is in its economic interest. In re Fed. Support Co., 859 F.2d 17, 20 (4th Cir.1988) (“It was for [the creditor] to decide its own self-interest.”); accord, Landing Assoc., 157 B.R. at 803 (“each creditor is expected to cast his vote ‘in accordance with his perception of his own self-interest’ ”), quoting Fed. Support, 859 F.2d at 19; see also In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989) (“Good faith voting does not require, nor can it expect, a creditor to act with selfless disinterest.”). In In re Landau Boat Co., 8 B.R. 432 (Bankr.W.D.Mo.1981), the court rejected the debtor’s contention that a creditor’s vote should be designated as cast in bad faith because, among other things, the creditor’s rejection made no economic sense. In so deciding, the court pointed out that “the purely selfish or self-interested reasons by which men judge what is best for themselves, even though they may seem unreasonable to others, do not necessarily amount to bad faith.” Id. at 436, citing 6 Collier on Bankruptcy, ¶ 9.21 at 1676 (14th Ed.) and Pine Hill Collieries, supra. The Debtor’s complaint that Sweetwater has not negotiated in good faith is essentially this same argument — that Sweetwa-ter’s having refused a “good deal” is evidence that it is rejecting the Plan for some non-creditor, improper reason. This argument fails because, again, only Sweetwater can decide what is a “good deal” for it. See Landau Boat Co., 8 B.R. at 436 (including in its analysis of the debtor’s argument regarding the lack of “economic sense” of the creditor’s rejection of the plan, the creditor’s refusal to settle with the debtor for even more than the plan proposed to pay). As the court in Landing Associates noted: Too, what debtors"
},
{
"docid": "5483141",
"title": "",
"text": "holding a disputed claim is not entitled to vote upon a plan unless the court allows the vote provisionally. 1. Whether SunAmerica’s Vote was in Good Faith SunAmerica claims that the bankruptcy court erroneously deprived it of its right to vote its unsecured claim on the ground that SunAmerica’s vote against the plan was not in good faith within the meaning of section 1126(e). Although the Bankruptcy Code does not define “good faith,” the Supreme Court defined the term in Young v. Higbee Co., 324 U.S. 204, 65 S.Ct 594, 89 L.Ed. 890 (1945). The Young court held that the prohibition against votes cast in bad faith was intended to apply to claim holders who “by the use of obstructive tactics and hold-up techniques exact for themselves undue advantages from the other stockholders who are cooperating.” Bad faith was to be attributed to claimants who opposed a fair plan for a time until they were “bought off”; those who “refused to vote in favor of a plan unless ... given some particular preferential advantage.” Young, 324 U.S. at 211, 65 S.Ct. at 598 (quoting Hearings on Revision of the Bankruptcy Act Before the Committee on the Judiciary of the House of Representatives, 75th Cong., 1st Sess. (1937)). The test is whether a vote is cast for the ulteri- or purpose of securing some advantage to which the creditor would not otherwise have been entitled. Ulterior motives which have been held to constitute bad faith include “pure malice, ‘strikes/ and blackmail, and the purpose to destroy an enterprise in order to advance the interests of a competing business ...” In re Pine Hill Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa.1942). Thus, section 1126(e) has been used to prevent minority creditors from extorting, and debtors from making, preferential payments in exchange for votes; it has also been used to prevent a competitor from advancing a competing business by blocking reorganization. See, e.g., In re MacLeod Co., Inc., 63 B.R. 654 (Bktcy.S.D.Ohio 1986). However, this case does not involve any of the scenarios which have been held to constitute bad faith. A vote"
},
{
"docid": "1134975",
"title": "",
"text": "voting process was to prevent the use of “obstructive tactics and hold up techniques” to procure an unfair advantage over other creditors in the confirmation process. Young v. Higbee Co., 324 U.S. 204, 210-11, 65 S.Ct. 594, 597-98, 89 L.Ed. 890 (1945) (discussion of Section 203 of Chapter X of the Bankruptcy Act, the predecessor statute to Section 1126(e)). “One who casts his vote with a purpose of coercing payment to him of more than he might reasonably receive as his fair share of the debtor’s estate does not cast his vote in good faith.” In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988). A creditor also may not cast his vote for an ulterior motive, such as “pure malice, ‘strikes’ and blackmail, [or] ... to destroy an enterprise in order to advance the interests of a competing business” and expect to have it counted. In re Federal Support Co., 859 F.2d at 19 (quoting In re Pine Hill Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa.1942); In re MacLeod Co., Inc., 63 B.R. 654, 655-56 (Bankr.S.D.Ohio 1986)). To be sure, good faith voting and solicitation does not demand selfless disinterest. In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988) (cited with approval in In re First Humanics Corp., 124 B.R. 87 (Bankr.W.D.Mo.1991)). The court in Allegheny International observed, however, that even though [t]he mere fact that a purchase of creditors’ interests is for ... securing the approval or rejection of a plan does not of itself amount to ‘bad faith[,]’ [w]hen that purchase is in aid of an interest other than an interest of a creditor, such purchases may amount to bad faith ... [a]nd certainly there is ‘bad faith’ when those purchases result in discrimination in favor of creditors selling their interests. In re Allegheny Intern., Inc., 118 B.R. 282, 289 (Bankr.W.D.Pa.1990) (quoting In re P-R Holding Corp., 147 F.2d 895, 897 (2nd Cir.1945)); In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989) (citing this language with approval). Here, the blocking position obtained by Daseke was in aid of the debtor’s interest in defeating the RTC"
},
{
"docid": "5483143",
"title": "",
"text": "cannot be said to have been cast in bad faith simply because it was voted for the purpose of blocking confirmation of a reorganization plan. In fact, rejection of a plan by “a party, largely interested in the Debtor before his acquisition of controlling rights, who withholds consent to a plan primarily because he believes its consummation will be more injurious to his investment in the Debtor than liquidation, meets the standard of good faith.” In re Pine Hill, 46 F.Supp. at 671. Section 1126(e) does not require a creditor to have an interest in seeing the debtor reorganize. In re Federal Support, 859 F.2d 17, 19 (4th Cir.1988) (“Each creditor is expected to cast his vote in accordance with his perception of his own self-interest_”). Were this court to adopt Debtor’s position on this issue, investors would have little incentive to purchase claims from any creditor in bankruptcy. Accordingly, this court finds that the bankruptcy court was incorrect as a matter of law in disallowing SunAmerica’s vote on its unsecured claim because it was voted in bad faith. 2. Whether SunAmerica’s Claim should have been Allowed pursuant to Bankruptcy Rule 3018(a) Irrespective of the propriety of the bankruptcy court’s disallowance of SunAm-erica’s vote on the grounds that it was cast in bad faith, Debtor claims that a party has no right to accept or reject a reorganization plan until its claim has been allowed, and that a claim is not deemed allowed if an objection to the claim is pending. See In re M. Long Arabians, 103 B.R. 211, 215 (9th Cir. BAP 1989). Debtor further contends that because it had filed an objection to SunAmerica’s claim which had not been resolved at the time of the confirmation hearing, SunAmerica did not hold an allowable claim. Docket No. 268, E.R. Tab 74. SunAmerica argues that the bankruptcy court’s denial of its October 15, 1991 motion for temporary allowance of its claim was in error because it was based on the court’s understanding that SunAmerica’s claim was not acquired in good faith under section 1126(e). Pursuant to Rule 3018(a), the"
},
{
"docid": "1199171",
"title": "",
"text": "Approval of Its Disclosure Statement and In Opposition to KHDAC’s Motion to Dismiss Debtor’s Case, at 1-2, dated Nov. 28, 1994.) Instead, the Debtor seeks to designate these claims pursuant to 11 U.S.C. § 1126(e). This subsection provides: On request of a party in interest, and after notice and a hearing, the court may designate any entity whose acceptance or rejection of such plan was not in good faith, or was not solicited or procured in good faith or in accordance with the provisions of this title. Section 1126(e) is derived from Section 203 of the Bankruptcy Act of 1898, as amended, and former Bankruptcy Rule 10-305. Both authorized a court to disqualify a vote for acceptance or rejection of a Chapter X plan if the vote was not made in good faith, in light of or regardless of the time that the claim was acquired. The term “good faith” was not defined in the Act or the Code, and instead, has been left to case law. 5 L. King, Collier on Bankruptcy ¶ 1126.05 at 1126-19 (15 ed. 1994) (“Collier ”). Section 1126(e), which incorporates the pre-Code case law concerning disqualification of claims, 5 Collier ¶ 1126.05 at 1126-19, recognizes two types of bad faith: (1) the claim holder attempts to extract or extort a personal advantage not available to other creditors in its class, and (2) the creditor has an “ulterior motive”, such as to procure some collateral or competitive advantage that does not relate to its claim. In re Marin Town Center, 142 B.R. 374, 379 (N.D.Cal.1992); In re Pleasant Hill Partners, L.P., 163 B.R. 388, 393 (Bankr.N.D.Ga. 1994); see In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988); In re Lloyd McKee Motors, Inc., 157 B.R. 487, 488-89 (Bankr.D.N.M.1993). The most common type of bad faith case, and the one at issue here, is the “ulterior motive” case. In one of the earliest and most frequently quoted decisions, In re Pine Hill Colleries Co., 46 F.Supp. 669 (E.D.Pa. 1942), the court identified conduct that would require disqualification of the creditor’s vote. Distinguishing between a"
},
{
"docid": "6399140",
"title": "",
"text": "Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa. 1942), and In re MacLeod Co., Inc., 63 B.R. 654 (Bankr.S.D.Ohio 1986). Based on the foregoing recitation of the evidence presented at the hearing, the Court finds there it was insufficient to establish that the primary, or even a major, goal of Sweetwater and Gunn was to put the Debtor out of existence because of the Debtor’s potential role in opposing other projects of Gunn’s. Rather, the Court finds that Gunn’s (and, therefore, Sweetwater’s) purpose, according to his credible testimony, is simply to obtain the best recovery possible on his claim. Such self-interest is not bad faith. In re Pine Hill Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa.1942) (“If a selfish motive were sufficient to condemn reorganization policies of interested parties, very few, if any, would pass muster.”); In re Landing Assoc., Ltd., 157 B.R. 791, 803 (Bankr. W.D.Tex.1993) (“Mere selfishness does not rise to the level of bad faith, however, and self-dealing and good faith are not mutually exclusive.”), citing In re Frank Fehr Brewing Co., 268 F.2d 170, 180 (6th Cir.1959), In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989) and In re Feather-works Corp., 36 B.R. 460, 462 (E.D.N.Y. 1984). Debtor argues that, objectively viewed, Sweetwater’s rejection of the Plan does not make economic sense, so it must have another, improper purpose in rejecting it. It is for Sweetwater, however, and Sweet-water alone, to decide what is in its economic interest. In re Fed. Support Co., 859 F.2d 17, 20 (4th Cir.1988) (“It was for [the creditor] to decide its own self-interest.”); accord, Landing Assoc., 157 B.R. at 803 (“each creditor is expected to cast his vote ‘in accordance with his perception of his own self-interest’ ”), quoting Fed. Support, 859 F.2d at 19; see also In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989) (“Good faith voting does not require, nor can it expect, a creditor to act with selfless disinterest.”). In In re Landau Boat Co., 8 B.R. 432 (Bankr.W.D.Mo.1981), the court rejected the debtor’s contention that a creditor’s vote should be designated as cast in bad faith because, among"
},
{
"docid": "1100192",
"title": "",
"text": "or rejection of the plan. See Young v. Higbee Co., 324 U.S. at 212, n. 10, 65 S.Ct. at 598, n. 10. Thus, one who casts a vote with the “ulterior purpose” of exacting for oneself an undue or unfair advantage can have that vote subjected to designation. In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989); see also A.D.W., Inc., 90 B.R. 645, 649 (Bankr.D.N.J.1988); In re MacLeod Co., Inc., 63 B.R. at 655. Ulterior motives which can constitute bad faith include “pure malice, ‘strikes’, blackmail, and the [destruction of an entity] in order to advance the interests of a competing business.” See In re Federal Support Co., 859 F.2d at 19 (citing In re Pine Hill Collieries, Co., 46 F.Supp. 669, 671 (E.D.Pa.1942)). “The history of this provision makes clear that it was intended to apply to those [creditors] whose selfish purpose was to obstruct a fair and feasible reorganization in the hope that someone would pay them more than the ratable equivalent of their proportionate part of the bankrupt’s assets.” In re Landau Boat Co., 8 B.R. 432, 434 (Bankr.W.D.Mo.1981) (quoting Young v. Higbee Co., 324 U.S. 204, 210-11, 65 S.Ct. 594, 598, 89 L.Ed. 890 (1945)). Mere selfishness does not rise to the level of bad faith, however, and self-dealing and good faith are not mutually exclusive. In re Frank Fehr Brewing Co., 268 F.2d 170, 180 (6th Cir.1959); see also In re Gilbert, 104 B.R. at 216 (citing In re Featherworks Corp., 36 B.R. 460, 462 (E.D.N.Y.1984). The Code does not require, nor could it reasonably expect, creditors to act with “selfless disinterest”; each creditor is expected to cast his vote “in accordance with his perception of his own self-interest.” See In re Federal Support Co., 859 F.2d at 19; see also In re Gilbert, 104 B.R. at 216. “If a selfish motive were sufficient to condemn reorganization policies of interested parties, very few, if any, would pass mustard [sic, muster].” In re A.D.W., Inc., 90 B.R. 645, 651 (Bankr.D.N.J.1988). If a creditor sufficiently manifests a proper motive for the questioned activity, courts have been unwilling"
},
{
"docid": "8310248",
"title": "",
"text": "65 S.Ct. 594, 597-98, 89 L.Ed. 890 (1945) under the predecessor of Section 1126(e), stating that the purpose of the good faith provision was to prevent creditors from using “obstructive tactics and holdup techniques” to secure either some unfair advantage through the plan’s acceptance or rejection, or perhaps preferential treatment for the price of their vote. The difficulty in distilling bad faith from a given set of facts is that good faith and self dealing are not mutually exclusive. In re Featherworks Corp., 36 B.R. 460, 462 (E.D.N.Y.1984). Good faith voting does not require, nor can it expect, a creditor to act with selfless disinterest. In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988). The test then, consonant with the United States Supreme Court’s standard, is whether a creditor has cast his vote with an “ulterior purpose” aimed at gaining some advantage to which he would not otherwise be entitled in his position. In re A.D.W., Inc., 90 B.R. 645, 649 (Bankr.D.N.J.1988); In re MacLeod Co., Inc., 63 B.R. 654, 655 (Bankr.S.D.Ohio 1986). Ulterior or coercive motives that have been held to constitute bad faith include “pure malice, ‘strikes’, blackmail, and the purpose to destroy an enterprise in order to advance the interests of a competing business.” In re Federal Support Co., 859 F.2d at 19 (citing In re Pine Hill Collieries, Co., 46 F.Supp. 669, 671 (E.D.Pa.1942). To customize this general template of “bad faith” to a situation like the one before the Court where creditors’ interests are purchased for the purpose of securing approval of a plan, the following reasoning of the Second Circuit is useful: The mere fact that a purchase of creditors’ interests is for the purpose of securing the approval or rejection of a plan does not of itself amount to “bad faith”. When that purchase is in aid of an interest other than an interest as a creditor, such purchases may amount to “bad faith” under section 203 of the Bankruptcy Act [the predecessor to Section 1126(e)]. (citation omitted). And certainly there is “bad faith” when those purchases result in discrimination in"
},
{
"docid": "13358476",
"title": "",
"text": "with a case like this one, however, and neither we nor the Supreme Court have many precedents on the “good faith” voting requirement in any context; the most recent cases from both courts are now more than 65 years old and address § 1126(e)’s predecessor, § 203 of the Bankruptcy Act. See Young v. Higbee Co., 324 U.S. 204, 65 S.Ct. 594, 89 L.Ed. 890 (1945); In re P-R Holding Corp., 147 F.2d 895 (2d Cir.1945). Nevertheless, these cases, cases from other jurisdictions, legislative history, and the purposes of the good-faith requirement give us confidence in affirming the bankruptcy court’s decision to designate DISH’s vote in this case. We start with general principles that neither side disputes. Bankruptcy courts should employ § 1126(e) designation sparingly, as “the exception, not the rule.” In re Adelphia Commc’ns Corp., 359 B.R. 54, 61 (Bankr.S.D.N.Y.2006). For this reason, a party seeking to designate another’s vote bears the burden of proving that it was not cast in good faith. See id. Merely purchasing claims in bankruptcy “for the purpose of securing the approval or rejection of a plan does not of itself amount to ‘bad faith.’ ” In re P-R Holding, 147 F.2d at 897; see In re 255 Park Plaza Assocs. Ltd. P’ship, 100 F.3d 1214, 1219 (6th Cir.1996). Nor will selfishness alone defeat a creditor’s good faith; the Code assumes that parties will act in their own self interest and allows them to do so. See In re Figter, 118 F.3d at 639. Section 1126(e) comes into play when voters venture beyond mere self-interested promotion of their claims. “[T]he section was intended to apply to those who were not attempting to protect their own proper interests, but who were, instead, attempting to obtain some benefit to which they were not entitled.” In re Figter, 118 F.3d at 638. A bankruptcy court may, therefore, designate the vote of a party who votes “in the hope that someone would pay them more than the ratable equivalent of their proportionate part of the bankrupt assets,” Young, 324 U.S. at 211, 65 S.Ct. 594, or one who"
},
{
"docid": "8310249",
"title": "",
"text": "Ulterior or coercive motives that have been held to constitute bad faith include “pure malice, ‘strikes’, blackmail, and the purpose to destroy an enterprise in order to advance the interests of a competing business.” In re Federal Support Co., 859 F.2d at 19 (citing In re Pine Hill Collieries, Co., 46 F.Supp. 669, 671 (E.D.Pa.1942). To customize this general template of “bad faith” to a situation like the one before the Court where creditors’ interests are purchased for the purpose of securing approval of a plan, the following reasoning of the Second Circuit is useful: The mere fact that a purchase of creditors’ interests is for the purpose of securing the approval or rejection of a plan does not of itself amount to “bad faith”. When that purchase is in aid of an interest other than an interest as a creditor, such purchases may amount to “bad faith” under section 203 of the Bankruptcy Act [the predecessor to Section 1126(e)]. (citation omitted). And certainly there is “bad faith” when those purchases result in discrimination in favor of the creditors selling their interests. In re P-R Holding Corp., 147 F.2d 895, 897 (2d Cir.1945); see also In re MacLeod Co., Inc., 63 B.R. at 655 and In re Featherworks Corp., 36 B.R. at 463 (both citing this language with approval). The purchase of claims for an improper purpose has been held to occur, for example, where such claims were marketed and purchased to manipulate other creditors’ interests. See In re Kuhns, 101 B.R. 243 (Bankr.D.Mont.1989) (debtor financed insider’s purchase of claims for purpose of controlling litigation against debtor through insider’s membership on unsecured creditors committee). An evaluation of the facts of this case under the foregoing standards indicates that Stulz’ purchase and subsequent vote of MTI’s claim were not inspired by a prohibited ulterior purpose. He did not approach MTI with the hope of cultivating a market for his other unsecured claim. Nor is there evidence that he cast the purchased MTI vote to manipulate other creditors or to coerce Debtors into paying him more than his fair ratable share of"
},
{
"docid": "1134974",
"title": "",
"text": "protect its own plan, Applegate had Daseke Consulting, Inc., a related entity, purchase the claims, trumping the potential rejection of their Plan by the RTC while at the same time blocking confirmation of the RTC plan. The issue thus narrowed is whether an affiliate or insider of the Debtor can purchase unsecured claims in a given class in order to block the purchase of such claims by a competing entity of the Debtor, to block confirmation of the competing entity’s plan, without violating Section 1126(e). That section reads as follows, in relevant part: On request of a party in interest ... the court may designate any entity whose acceptance or rejection of such plan was not in good faith, or was not solicited or procured in good faith or in accordance with the provisions of this title. 11 U.S.C. § 1126(e). Neither the Bankruptcy Code nor the Bankruptcy Rules define \"good faith” as it is used in Section 1126(e). The Supreme Court has stated that the purpose of imposing a “good faith” standard on the voting process was to prevent the use of “obstructive tactics and hold up techniques” to procure an unfair advantage over other creditors in the confirmation process. Young v. Higbee Co., 324 U.S. 204, 210-11, 65 S.Ct. 594, 597-98, 89 L.Ed. 890 (1945) (discussion of Section 203 of Chapter X of the Bankruptcy Act, the predecessor statute to Section 1126(e)). “One who casts his vote with a purpose of coercing payment to him of more than he might reasonably receive as his fair share of the debtor’s estate does not cast his vote in good faith.” In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988). A creditor also may not cast his vote for an ulterior motive, such as “pure malice, ‘strikes’ and blackmail, [or] ... to destroy an enterprise in order to advance the interests of a competing business” and expect to have it counted. In re Federal Support Co., 859 F.2d at 19 (quoting In re Pine Hill Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa.1942); In re MacLeod Co., Inc., 63 B.R."
},
{
"docid": "4676189",
"title": "",
"text": "be classified together. That GECC’s secured claim may drive the manner in which it casts its unsecured deficiency claim (and thus cause it to cast its unsecured vote in a manner that has nothing to do with its best interest as an unsecured creditor) is no reason to separately classify GECC’s deficiency claim. Such a rationale improperly focuses on the motives and agenda of the claim holder rather than on the nature of the underlying claim. 5 L. King, Collier on Bankruptcy ¶ 1122.03[1]-[b] (15th ed. 1992) (“The focus on a particular claim should not be on the claim holder but rather on the legal nature of the claim.”). Creditors in bankruptcy frequently cast votes motivated by concerns other than the anticipated distribution under the plan. Just by way of example, a creditor seeking to take over the debtor's business may vote his claim against what most creditors would consider to be a very reasonable plan. A trade creditor whose own business is largely dependent upon the debtor’s survival may vote in favor of the plan notwithstanding a paltry distribution. And a creditor who acquired his claim postpetition at a discount from face value may be motivated to vote against a plan solely because the spread on what the claim cost him and what distribution he is receiving on it is perceived to be too small. In short, there is nothing in the Bankruptcy Code which renders a creditor a fiduciary in the voting of his claim; he is free to vote his self-interest. See Young v. Higbee Co., 324 U.S. 204, 65 S.Ct. 594, 89 L.Ed. 890 (1945); In re Marin Tower Center, 142 B.R. 374, 378-79 (N.D.Cal.1992); Matter of Featherworks Corp., 36 B.R. 460, 463 (E.D.N.Y. 1984). The debtor further argues that based on policy concerns, namely, the reorganization policy of chapter 11, the debtor ought be permitted to classify GECC’s deficiency claim separately. Specifically, debtor’s counsel suggests that, in cases like these, if all unsecured claims are classified together, the enormous deficiency claim of the undersecured lender would dominate the vote and since the chances of finding"
},
{
"docid": "6399138",
"title": "",
"text": "bad faith: 1. Sweetwater’s principal, William T. Gunn, III, (“Gunn”) desires to cause the Debtor to go out of existence. 2. Sweetwater and Gunn’s other entities would benefit more by putting the Debtor out of existence than by any recovery on its claim in this case. 3. Sweetwater and Gunn have refused to negotiate in good faith, both before and during this case. 4. There is no evidence the Debtor can pay more on Sweetwater’s claim than it currently proposes to pay. 5. Sweetwater and Gunn refuse to acknowledge the distinction between funds that the Debtor owns or controls, and those controlled by its donors. 6. Sweetwater’s attorney admitted at the disclosure statement hearing that it “simply wants S.O.S. shut down because S.O.S. is ‘antagonistic’ to her client’s development interests.” 7. Sweetwater and Gunn’s development activities have caused harm to the Hill Country’s streams and may in the future cause “much more damage.” 8. Sweetwater would get less in a Chapter 7 liquidation of the Debtor than under the Plan and the unsecured creditors would likely receive nothing, but Sweetwater still opposes the Debtor’s efforts to reorganize and pay it a portion of its claim. Good faith — and its converse, bad faith — are not defined in the Bankruptcy Code. Cieri, R.M., Oyer, B.J., Birnbryer, D.J., “The Long and Winding Road”: the Standards to Confirm a Plan of Reorganization, 3 J.Bankr.L. & Prac. 115, 134 (1994). Thus, the courts have developed the meaning of good (and bad) faith on the basis of the facts of each particular case. Id. In the case of § 1126(e), the courts generally agree that bad faith includes acting with an unacceptable ulterior motive: “A creditor may not cast his vote for an ulterior purpose and expect to have it counted. Ulterior motives have been held to include ‘pure malice, strikes and blackmail, and the purpose to destroy an enterprise in order to advance the interests of a competing business,’ ” Insinger Mach. Co. v. Fed. Support Co. (In re Fed. Support Co.), 859 F.2d 17, 19 (4th Cir.1988), citing In re Pine Hill"
},
{
"docid": "6399139",
"title": "",
"text": "likely receive nothing, but Sweetwater still opposes the Debtor’s efforts to reorganize and pay it a portion of its claim. Good faith — and its converse, bad faith — are not defined in the Bankruptcy Code. Cieri, R.M., Oyer, B.J., Birnbryer, D.J., “The Long and Winding Road”: the Standards to Confirm a Plan of Reorganization, 3 J.Bankr.L. & Prac. 115, 134 (1994). Thus, the courts have developed the meaning of good (and bad) faith on the basis of the facts of each particular case. Id. In the case of § 1126(e), the courts generally agree that bad faith includes acting with an unacceptable ulterior motive: “A creditor may not cast his vote for an ulterior purpose and expect to have it counted. Ulterior motives have been held to include ‘pure malice, strikes and blackmail, and the purpose to destroy an enterprise in order to advance the interests of a competing business,’ ” Insinger Mach. Co. v. Fed. Support Co. (In re Fed. Support Co.), 859 F.2d 17, 19 (4th Cir.1988), citing In re Pine Hill Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa. 1942), and In re MacLeod Co., Inc., 63 B.R. 654 (Bankr.S.D.Ohio 1986). Based on the foregoing recitation of the evidence presented at the hearing, the Court finds there it was insufficient to establish that the primary, or even a major, goal of Sweetwater and Gunn was to put the Debtor out of existence because of the Debtor’s potential role in opposing other projects of Gunn’s. Rather, the Court finds that Gunn’s (and, therefore, Sweetwater’s) purpose, according to his credible testimony, is simply to obtain the best recovery possible on his claim. Such self-interest is not bad faith. In re Pine Hill Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa.1942) (“If a selfish motive were sufficient to condemn reorganization policies of interested parties, very few, if any, would pass muster.”); In re Landing Assoc., Ltd., 157 B.R. 791, 803 (Bankr. W.D.Tex.1993) (“Mere selfishness does not rise to the level of bad faith, however, and self-dealing and good faith are not mutually exclusive.”), citing In re Frank Fehr Brewing Co., 268"
},
{
"docid": "10975390",
"title": "",
"text": "of the creditors selling their interests.” See also In re Featherworks Corp., 36 B.R. 460, 463 (E.D.N.Y.1984) (“The other creditors, all of whom had already voted, were not similarly afforded a chance to convert their claims to immediate cash.... [T]he court does not believe that the law countenances vote trafficking and assertedly otherwise innocent self-dealing after the votes have been cast.”) The conduct here is even more offensive than in P-R Holding. Here, the sellers were members of the Creditors’ Committee and they owed a fiduciary duty to other class members. The purchasers in P-R Holding offered to forego the benefits of the claims which they had wrongfully acquired and thereby increase the distributions to others. Here, after having committed a wrongful act, Japónica proposes to pay themselves handsomely under an outrageous view of equity. We find bad faith. C. Japónica Partners as a Proponent of a Plan Sought and Received Inside Information and Should be Treated as a Fiduciary and an Insider Japónica argues that they are not insiders, as that is defined in 11 U.S.C. § 101(30). It is clear to this court that Congress intended that an insider includes “one who has a sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny than those dealing at arms length with the debtor.” S.Rep. No. 989, 95th Cong., 2d Sess. 25 (1978); H.R.Rep. No. 595, 95th Cong., 1st Sess. 312 (1979), U.S.Code Cong. & Admin. News 1978, pp. 5787, 5810, 6269 (legislative history to 11 U.S.C. § 101(30)). The rules of construction for the Bankruptcy Code specifically state that the terms “includes” and “including” “are not limiting.” 11 U.S.C. § 102(3). The use of the term “insider” at 11 U.S.C. § 101(30) provides an illustrative, rather than an exhaustive list of the persons or entities which may qualify as insiders of the debt- or. In re Henderson, 96 B.R. 820, 824-25 (Bankr.E.D.Tenn.1989). As a proponent, Japónica sought an order of court to conduct “due diligence” which it needed to obtain bank financing to implement its plan. Japónica had complained that the debtor was"
},
{
"docid": "5483142",
"title": "",
"text": "324 U.S. at 211, 65 S.Ct. at 598 (quoting Hearings on Revision of the Bankruptcy Act Before the Committee on the Judiciary of the House of Representatives, 75th Cong., 1st Sess. (1937)). The test is whether a vote is cast for the ulteri- or purpose of securing some advantage to which the creditor would not otherwise have been entitled. Ulterior motives which have been held to constitute bad faith include “pure malice, ‘strikes/ and blackmail, and the purpose to destroy an enterprise in order to advance the interests of a competing business ...” In re Pine Hill Collieries Co., 46 F.Supp. 669, 671 (E.D.Pa.1942). Thus, section 1126(e) has been used to prevent minority creditors from extorting, and debtors from making, preferential payments in exchange for votes; it has also been used to prevent a competitor from advancing a competing business by blocking reorganization. See, e.g., In re MacLeod Co., Inc., 63 B.R. 654 (Bktcy.S.D.Ohio 1986). However, this case does not involve any of the scenarios which have been held to constitute bad faith. A vote cannot be said to have been cast in bad faith simply because it was voted for the purpose of blocking confirmation of a reorganization plan. In fact, rejection of a plan by “a party, largely interested in the Debtor before his acquisition of controlling rights, who withholds consent to a plan primarily because he believes its consummation will be more injurious to his investment in the Debtor than liquidation, meets the standard of good faith.” In re Pine Hill, 46 F.Supp. at 671. Section 1126(e) does not require a creditor to have an interest in seeing the debtor reorganize. In re Federal Support, 859 F.2d 17, 19 (4th Cir.1988) (“Each creditor is expected to cast his vote in accordance with his perception of his own self-interest_”). Were this court to adopt Debtor’s position on this issue, investors would have little incentive to purchase claims from any creditor in bankruptcy. Accordingly, this court finds that the bankruptcy court was incorrect as a matter of law in disallowing SunAmerica’s vote on its unsecured claim because it was"
},
{
"docid": "8310247",
"title": "",
"text": "open negotiations. Century Glove, Inc., 860 F.2d at 102. Finally, the evidence shows that MTI was sufficiently sophisticated and resourceful to protect the interest it then had in Debtors’ bankruptcy from any untoward advances by other creditors. V. Purchasing Claims to Procure Votes and Section 1126(e) The Court has been asked to consider whether the vote Stulz purchased from MTI should be invalidated under Section 1126(e) on the grounds that it was procured for an improper purpose. This debate arguably overlaps with the issue of solicitation, but the Court chooses to dignify the issue with a separate discussion in the interest of clarity. What sets these two discussions apart is the focus of the Court’s inquiry. While the solicitation question turned on Stulz’ conduct relative to his communications with MTI, the focus here is on his motive for purchasing and voting MTI’s claim. The issue is “good faith” which is left undefined under the Code. The United States Supreme Court set the standard for good faith in Young v. Higbee Co., 324 U.S. 204, 210-11, 65 S.Ct. 594, 597-98, 89 L.Ed. 890 (1945) under the predecessor of Section 1126(e), stating that the purpose of the good faith provision was to prevent creditors from using “obstructive tactics and holdup techniques” to secure either some unfair advantage through the plan’s acceptance or rejection, or perhaps preferential treatment for the price of their vote. The difficulty in distilling bad faith from a given set of facts is that good faith and self dealing are not mutually exclusive. In re Featherworks Corp., 36 B.R. 460, 462 (E.D.N.Y.1984). Good faith voting does not require, nor can it expect, a creditor to act with selfless disinterest. In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988). The test then, consonant with the United States Supreme Court’s standard, is whether a creditor has cast his vote with an “ulterior purpose” aimed at gaining some advantage to which he would not otherwise be entitled in his position. In re A.D.W., Inc., 90 B.R. 645, 649 (Bankr.D.N.J.1988); In re MacLeod Co., Inc., 63 B.R. 654, 655 (Bankr.S.D.Ohio 1986)."
},
{
"docid": "14644624",
"title": "",
"text": "11. As for future cases, we note that the bankruptcy court always retains the power to monitor and control the tenor of reorganization proceedings. If the unsecured creditors’ committee fails to be properly representative of the unsecured creditors, any party in interest can move to have the committee reconstituted. See 11 U.S.C. § 1102(a)(2); In re Daig Corp., 17 B.R. at 42. If an entity’s acceptance or rejection of a plan is not made in good faith, or was not solicited or procured in good faith, the court can disqualify that vote. See 11 U.S.C. § 1126(e). The good faith requirement bars creditors from casting their votes from ulterior motives, such as coercing a higher payment from the debtor’s estate, pure malice, and advancing the interests of a competing business. In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988). The record contains no evidence that Citizens and the Committee harbored any such sinister designs. Appellees assert that creditors should not do anything to alter the usual divergence of interests between secured and unsecured creditors. While secured creditors might generally prefer liquidation and unsecured creditors might generally support reorganization, the Code surely does not require them to take such positions. No two creditors have identical interests, see In re Microboard Processing, Inc., 95 B.R. at 285, and the Code implicitly recognizes that fact by providing a procedural framework for handling the various divergent interests of the parties to a bankruptcy. See Elizabeth Warren, Bankruptcy Policy, 54 U.Chi.L.Rev. 775, 785-89 (1987); see also Elizabeth Warren & Jay Lawrence Westbrook, The Law of Debtors and Creditors 427-35 (2d ed. 1991). While unsecured creditors may sometimes share common objectives with the debtor and current management, they are not required to rubber stamp the proposals of the debtor nor to support the retention of current management. See In re Federal Support Co., 859 F.2d at 19 (“It is well settled [ ] that good faith in casting a vote does not require of the creditor a selfless disinterest.”) The duty of the unsecured creditors’ committee to pursue the best interests of the unsecured"
},
{
"docid": "1100191",
"title": "",
"text": "Code provides that “[o]n the request of a party in interest, and after notice and hearing, the court may designate any entity whose acceptance or rejection of [a] plan was not in good faith_” 11 U.S.C. § 1126(e). The term “good faith” as used in this section was intentionally left undefined, so that it might be defined and developed in accordance with cases as they arose. See In re Federal Support Co., 859 F.2d 17, 19 (4th Cir.1988); see also In re MacLeod Co., Inc., 63 B.R. 654 (Bankr.S.D.Ohio 1986) (citing 5 Collier on Bankruptcy, 111126.05[1] (1988)). The United States Supreme Court discussed the standard for good faith under the predecessor statute to § 1126(e) in Young v. Higbee Co., 324 U.S. 204, 210-11, 65 S.Ct. 594, 597-98, 89 L.Ed. 890 (1945) (construing Section 203 of the Bankruptcy Act, 11 U.S.C. (repealed) § 603). In Young, the Court stated that the good faith requirement was designed to eliminate those “obstructive tactics and holdup techniques” employed by some creditors to secure an unfair advantage through acceptance or rejection of the plan. See Young v. Higbee Co., 324 U.S. at 212, n. 10, 65 S.Ct. at 598, n. 10. Thus, one who casts a vote with the “ulterior purpose” of exacting for oneself an undue or unfair advantage can have that vote subjected to designation. In re Gilbert, 104 B.R. 206, 216 (Bankr.W.D.Mo.1989); see also A.D.W., Inc., 90 B.R. 645, 649 (Bankr.D.N.J.1988); In re MacLeod Co., Inc., 63 B.R. at 655. Ulterior motives which can constitute bad faith include “pure malice, ‘strikes’, blackmail, and the [destruction of an entity] in order to advance the interests of a competing business.” See In re Federal Support Co., 859 F.2d at 19 (citing In re Pine Hill Collieries, Co., 46 F.Supp. 669, 671 (E.D.Pa.1942)). “The history of this provision makes clear that it was intended to apply to those [creditors] whose selfish purpose was to obstruct a fair and feasible reorganization in the hope that someone would pay them more than the ratable equivalent of their proportionate part of the bankrupt’s assets.” In re Landau"
}
]
|
470193 | 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the 96-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the 8 U.S.C. § 1326(a) offense charged in his indictment. He challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury. Gonzalez’s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although he contends that a majority of the Supreme Court would overrule AlmendarezTorres in light of Apprendi we have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding. See REDACTED Gonzalez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review. 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 tire limited circumstances set forth in 5th Cir. R. 47.5.4. | [
{
"docid": "22666701",
"title": "",
"text": "8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional on their face and as applied in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). According to Garza-Lopez, the “felony” and - “aggravated felony” provisions found in these sections are essential elements of the offense that must be pled in the indictment and proved beyond a reasonable doubt, not sentencing enhancement factors that a judge should determine. He notes that in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected this argument, holding that “Congress intended to set forth a sentencing factor in subsection (b)(2) [of 8 U.S.C. § 1326] and not a separate criminal offense.” Nevertheless, he argues that in light of Apprendi, there is reason to think that Almendarez-Torres was wrongly decided. While Garza-Lopez thinks there is reason to believe Almendarez-Torres was wrongly decided, he admits in his brief that his argument that 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional is foreclosed in this circuit by Almendarez-Torres. He then states that he is simply raising this argument on appeal to preserve it for possible review by the Supreme Court. Because Garza-Lopez made no objection to the alleged constitutional error below, we review it for plain error. United States v. Knowles, 29 F.3d 947, 951 (5th Cir.1994). This court has held that “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ ....” Id. at 951. Garza-Lopez’s argument that §§ 1326(b)(1) and (2) are unconstitutional after Apprendi fails in light of Almendarez-Torres and Fifth Circuit precedent. As Garza-Lopez readily admits, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Furthermore, Apprendi did not overrule Almendarez-Torres. Instead, the Supreme Court stated in Apprendi that “we need not revisit [Almendarez-Torres] for purposes of our decision today to tréat the case as a narrow exception to the general rule we recalled at the outset.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This court has repeatedly rejected arguments like the"
}
]
| [
{
"docid": "22158321",
"title": "",
"text": "crime to 20 years if the alien has previously been convicted of an aggravated felony. Almendarez-Torres involved an alien who, like Vargas, had been indicted under § 1326(a) and sentenced under § 1326(b)(2). Almendarez-Torres, 523 U.S. at 227, 118 S.Ct. 1219. The alien challenged his sentence, essentially claiming subsection (b)(2) constituted its own crime and not simply a sentencing factor under subsection (a). Id. Consequently, he argued he could not be sentenced to up to 20 years in prison as permitted in subsection (b)(2) because a key element of the subsection (b)(2) crime — -the existence of a past aggravated felony — was not charged in his indictment. Id. Instead, he claimed the maximum sentence he could face was the two years set forth in subsection (a). Id. (The District Court had sentenced the alien to 85 months’ imprisonment. Id.) In rejecting the alien’s claim, the Supreme Court held that subsection (b)(2) set forth a sentencing factor for the subsection (a) offense. Id. at 235, 118 S.Ct. 1219. As a result, the fact of the alien’s multiple prior convictions was not an element of the subsection (a) crime and it did not have to be charged in the alien’s indictment to be factored into his sentence. Id. The holding of Almendarez-Torres has since been questioned by the Supreme Court. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (explaining “it is arguable that Almendarez-Torres was incorrectly decided”); Shepard v. United States, 544 U.S. 13, 27, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (Thomas, J., concurring) (arguing “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided”). Despite these questions, the Supreme Court has yet to overrule the case. As a consequence, it continues to bind our decisions. See Ordaz, 398 F.3d at 241 (explaining “[t]he holding in Almendarez-Torres remains binding law”). Vargas concedes that the holding in Almendarez-Torres is fatal to his Fifth Amendment claim (involving his indictment), and he admits raising the issue only to preserve it for further review. He maintains, however, that Almendarez-Tor-res does not address his"
},
{
"docid": "23428596",
"title": "",
"text": "“reasonable apprehension of imminent physical injury” with a deadly weapon is COV); United States v. Drummond, 240 F.3d 1333, 1337 (11th Cir.2001) (New York crime of menacing required intentionally placing another in fear of death or physical injury through the use of a deadly weapon and constituted a COV); cf. United States v. Perez-Vargas, 414 F.3d 1282, 1285-86 (10th Cir.2005) (no COV in statute prohibiting, among other behaviors, criminal negligence causing bodily injury with a deadly weapon). Under the rationale of Treto-Martinez, then, we hold that Dominguez’s conviction for aggravated battery under the specific subsection of Florida law qualifies as a COV because it has as an element at least a threatened use of force. III. Dominguez contends that the 33-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. He challenges the constitutionality of § 1326(b)’s treatment of prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a jury in light of Apprendi. Dominguez’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that treatment of prior convictions as sentencing factors in § 1326(b)(1) and (2) was constitutional. Although Dominguez contends that a majority of the Supreme Court would now consider Almendarez-Torres to be incorrectly decided in light of Apprendi, “[t]his court -has repeatedly rejected arguments like the one made by [Dominguez] and has held that Almenda-rez-Torres remains binding despite Apprendi” United States v. Garzar-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, - U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Dominguez concedes as much, but he raises the argument to preserve it for further review. rv. For the foregoing reasons, Dominguez’s sentence is AFFIRMED. AFFIRMED. . The parties do not dispute that Dominguez is the same individual as that named in the state court information."
},
{
"docid": "23473621",
"title": "",
"text": "determining that, a warrant of deportation was reliable and admissible because the official preparing the warrant had no motivation to do anything other than “mechanically register an unambiguous factual matter.” In light of these cases and the nature of warrants of deportation, we hold that warrants of deportation do not constitute testimonial hearsay under Crawford. Valdez argues that the district court erred in increasing his offense level by 16 levels based on his prior commission of a crime of violence. He contends that the Texas offense of burglary of a habitation, for which he had been convicted in the past, is not a crime of violence because it does not have as an element the use, attempted use, or threatened use of physical force against the person of another and because it is not equivalent to the enumerated offense of burglary of a dwelling. Valdez acknowledges that this issue is foreclosed by this court’s decision in United States v. Garcia-Mendez, 420 F.3d 454, 457 (5th Cir.2005), petition for cert, filed (Dec. 15, 2005) (No. 05-8542), but he asserts that he is raising the issue to preserve it for further review. Garcia-Mendez considered the Texas burglary of a habitation statute and held that “ ‘burglary of a habitation’ is equivalent to the enumerated [crime of violence] offense of ‘burglary of a dwelling.’ ” Id. Thus, as Valdez concedes, under the existing precedent of this court, the district court did not err in determining that Valdez’s prior burglary offense was a crime of violence. Valdez’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Valdez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005)."
},
{
"docid": "16406246",
"title": "",
"text": "4A1.2(c)(l); United States v. Moore, 997 F.2d 30, 33 (5th Cir.1993). Alfaro only received a sentence of ten days imprisonment for his evading arrest conviction. Thus, the district court erred in assigning a criminal history point for this offense. Because we vacate Alfa-ro’s sentence based on the sixteen-level enhancement, however, we need not address whether the court’s erroneous imposition of the criminal history point is plain error requiring reversal. C. The Constitutionality of 8 U.S.C. § 1326(b) Finally, Alfaro argues that the “felony” and “aggravated felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (2) are unconstitutional. While Alfaro notes that this argument appears to be foreclosed by the Supreme' Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), he contends that Almendarez-Torres was wrongly decided. In support of his argument, he claims that Justice Thomas, who provided a critical fifth vote in Almendarez-Torres, now appears to have repudiated his position in Almendarez-Torres. Thus, Alfaro concludes that five members of the Supreme Court now appear to be of the view that Almendarez-Torres was incorrectly decided. Because Alfaro made no objection to the alleged constitutional error below, we review his claim for plain error. Olano, 507 U.S. at 732-37, 113 S.Ct. 1770; Knowles, 29 F.3d at 951. In this circuit, “[i]t is self-evident that basing a conviction on an unconstitutional statute is both ‘plain’ and ‘error’ .... ” Knowles, 29 F.3d at 951. Alfaro’s argument that §§ 1326(b)(1) and (2) are unconstitutional, however, fails in light of Almendarez-Torres and Fifth Circuit precedent. As Alfaro recognizes, in Almendarez-Torres, the Supreme Court effectively rejected his argument. See Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. Almendarez-Torres has not been overruled and is still good law. Additionally, this court has repeatedly rejected arguments like the one made by Alfaro as being foreclosed by Almendarez-Torres. See, e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003) (per curiam) (holding that Almendarez-Torres remains binding despite Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); United States v. Delgado-Nunez, 295 F.3d 494, 498"
},
{
"docid": "22306371",
"title": "",
"text": "PER CURIAM: Defendant Hector Mario Latorre Bena-vides (“Latorre”) appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York, Sterling Johnson, Jr., Judge, following his plea of guilty to unlawfully reentering the United States without the permission of the United States Attorney General, after having been deported following conviction of an aggravated felony, in violation of 8 U.S.C. § 1326. Pursuant to § 1326(b), Latorre was sentenced principally to 46 months’ imprisonment. On appeal, he contends that under the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), § 1326(b), which authorizes a prison term of up to 20 years for a person whose deportation was subsequent to a conviction for commission of an aggravated felony, must be construed as setting out an offense distinct from that set out in § 1326(a), which does not mention prior convictions and limits the term of imprisonment to two years. Latorre argues that because the indictment did not allege his prior conviction, it set forth only the elements of § 1326(a), and the maximum prison term that could lawfully have been imposed on him was thus two years. Although the judgment of conviction requires a clerical correction, we reject La-torre’s contentions and affirm. Latorre expressly recognizes that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), “forecloses [ ]his argument” (La-torre brief on appeal at 3), and that the Supreme Court in Apprendi “declined] to overrule Almendarez-Torres ” (Latorre brief on appeal at 10); Latorre states that he has pursued this appeal simply in order to preserve his argument for review by the Supreme Court (see Latorre brief on appeal at 3). We agree that the issue raised by Latorre is squarely governed by Al-mendarez-Torres and is foreclosed. Al-mendarez-Torres held that § 1326(b) does not set out a separate offense but rather is a penalty provision with respect to a violation of § 1326(a) and merely increases the authorized prison term for an unlawfully reentering"
},
{
"docid": "23084531",
"title": "",
"text": "offense, one probably does so in order to distinguish the subject sex offense as one that does require force or threatened force extrinsic to penetration. Thus, the phrase “forcible sex offense” used in paragraph (II) of § 2L1.2 cmt. n.1(B)(ii) may well be a term of art that encompasses a narrower range of conduct than does paragraph (O’s general definition referring to crimes that “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another.” See supra note 8. In any event, regardless of the precise boundaries of the phrase, we do not think that all of the conduct criminalized by § 566.040 can be considered a “forcible sex offense.” Therefore,' we cannot affirm the defendant’s sentence on this alternative basis. On remand, the government is free to pursue the eight-level “aggravated felony” sentence enhancement. We- express no opinion regarding whether that enhancement would’be proper. B. Constitutionality of 8 U.S.C. § 1326(b) ’ 8 U.S.C. § 1326(a) makes it a crime, punishable by up to two years’ imprisonment, for an alien to reenter the country without permission after having previously been removed; Section 1326(b)(l)-(2) provides that aliens whose prior removal followed a conviction of certain crimes may be imprisoned for substantially longer terms. In Almendarez-Torres v. United States, the Supreme Court held that § 1326(b) set forth sen- tenting factors rather than separate offenses, and that the statute was constitutional. See 523 U.S. 224, 235, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Raising an objection that was not raised below, Sarmiento-Funes contends that 8 U.S.C. § 1326(b) is unconstitutional, on its face and as applied, in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that facts that increase a sentence beyond the statutory maximum must as. a general matter be found by a jury. But Apprendi explicitly refrained from overruling Almendarez-Torres, and this circuit has consistently rejected Sarmiento-Funes’s position, stating that it is for the Supreme Court to overrule Almendarez-Torres. See, e.g., United States v. Dabeit,"
},
{
"docid": "22458360",
"title": "",
"text": "At his sentencing hearing, Ochoa-Gaytan conceded that he had been deported after having been convicted of an aggravated felony. The district court therefore sentenced Ochoa-Gaytan to more than two years imprisonment for his illegal reentry. Ochoa-Gaytan argues that 8 U.S.C. § 1326(b)(2) is a substantive offense rather than a sentencing factor. Consequently, he argues that he should have been exposed to no more than two years imprisonment because his indictment did not allege that he had previously been convicted, the issue was not presented to the jury, and the government did not prove beyond a reasonable doubt that he had been convicted of an aggravated felony. He argues that the district court’s imposition of a sixty-three month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 120 S.Ct. at 2362-63. As the government correctly notes, our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir. 2000), which was filed after Ochoa-Gaytan filed his supplemental brief that addressed the effect of Apprendi on his case, forecloses Ochoa-Gaytan’s argument. In Pacheco-Zepeda, we considered the exact issue raised here. There, we considered the effect of Apprendi on Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres held that 8 U.S.C. § 1326(b)(2)-the statutory provision which was the basis for Ochoa-Gaytan’s enhanced sentence-“simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime.” Id. at 226, 118 S.Ct. 1219. As a result, recidivism is not an element of the crime defined by § 1326 and so need not be charged in the indictment and proved beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219. Ochoa-Gaytan argues that A-pprendi overrules Almendarez-Torres. However, in Paeheco-Zepeda, we held that the Apprendi Court “unmistakably carved out an exception for ‘prior convictions’ that specifically preserved the"
},
{
"docid": "23492973",
"title": "",
"text": "to depart downward, but chose not to do so on the facts of the case. See id. at 732, 116 S.Ct. 2035. Accordingly, the court acknowledged that it lacked jurisdiction to review the district court’s refusal to grant Lipman’s downward departure motion. See id. Considering both the Lipman and Sanchez-Valencia decisions and the series of unpublished opinions from this court, we hold that cultural assimilation is a permissible basis for downward departure. Therefore, the sentence should be vacated and the case remanded to the district court for the district court to consider, in its sound discretion, whether Rodriguez-Mon-telongo’s circumstances are so atypical or extraordinary so as to warrant a downward departure on the basis of cultural assimilation. IV. DUE PROCESS Rodriguez-Montelongo challenges his sentence on the ground that it violates due process. Rodriguez-Montelongo contends that the offense for which he was indicted has a maximum sentence of two-years imprisonment. See 8 U.S.C. § 1326(a). 8 U.S.C. § 1326(b)(2) increases the maximum punishment to twenty years if the defendant was deported after conviction for an aggravated felony. RodriguezMontelongo asserts that § 1326(b)(2) creates a separate offense and that an element of this separate offense is a prior aggravated-felony conviction. Because the indictment did not allege a prior aggravated-felony conviction, Rodriguez-Montelongo argues that the only offense charged was that under § 1326(a). Therefore, he contends that because § 1326(a) has a maximum 2-year sentence, the district court exceeded the statutory maximum by sentencing Rodriguez-Montelongo to 41 months in prison. Rodriguez-Montelongo recognizes that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected an argument identical to the one he is making here. See id. at 235, 118 S.Ct. 1219. He contends, however, that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court “cast serious doubt” on Almenda-rez-Torres ’s validity. See id. at 489, 120 S.Ct. 2348 (stating that “it is arguable that Almendarez-Torres was incorrectly decided”). Rodriguez-Montelongo asserts that he raises this issue here only to preserve it for possible Supreme Court review. In"
},
{
"docid": "23112028",
"title": "",
"text": "PRADO, Circuit Judge: Jose Bonilla-Mungia (“Bonilla”) pleaded guilty to being unlawfully present in the United States following deportation and was sentenced to 41 months’ imprisonment. He now appeals the sentence imposed by the district court, asserting that the court plainly erred by enhancing his sentence sixteen levels for a prior “crime of violence.” He also appeals his conviction by challenging the constitutionality of the “felony” and “aggravated felony” enhancement provisions of 8 U.S.C. § 1326(b). For the reasons stated below, we affirm Bonilla’s conviction, vacate his sentence, and remand for development of the record. I. On June 7, 2003, Bonilla pleaded guilty to being unlawfully present in the United States after being previously deported, in violation of 8 U.S.C. § 1326(a) and (b). In the presentence report (“PSR”), the probation officer recommended a base offense level of eight pursuant to the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(a) (2002). The PSR also included a recommendation for a sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) on the ground that Bonilla’s 2000 conviction for sexual battery in California was a prior “crime of violence.” After a three-level reduction for acceptance of responsibility, the probation officer recommended a sentencing range of 57 to 71 months. The district court adopted the recommendations contained in the PSR, applied a two-level downward departure for Bonilla’s cooperation with the Government, and sentenced him to 41 months’ imprisonment. Bonilla timely appealed. II. A. Bonilla argues that his conviction must be overturned because the felony and aggravated felony provisions contained in 8 U.S.C. § 1326 are unconstitutional. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but argues that Almendarez-Torreshas been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). And, as Bonilla concedes, this court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Hopwood v. State of"
},
{
"docid": "23473622",
"title": "",
"text": "but he asserts that he is raising the issue to preserve it for further review. Garcia-Mendez considered the Texas burglary of a habitation statute and held that “ ‘burglary of a habitation’ is equivalent to the enumerated [crime of violence] offense of ‘burglary of a dwelling.’ ” Id. Thus, as Valdez concedes, under the existing precedent of this court, the district court did not err in determining that Valdez’s prior burglary offense was a crime of violence. Valdez’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Valdez contends that Almendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we have repeatedly rejected such arguments on the basis that AlmendarezTorres remains binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Valdez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review. AFFIRMED."
},
{
"docid": "23112029",
"title": "",
"text": "was a prior “crime of violence.” After a three-level reduction for acceptance of responsibility, the probation officer recommended a sentencing range of 57 to 71 months. The district court adopted the recommendations contained in the PSR, applied a two-level downward departure for Bonilla’s cooperation with the Government, and sentenced him to 41 months’ imprisonment. Bonilla timely appealed. II. A. Bonilla argues that his conviction must be overturned because the felony and aggravated felony provisions contained in 8 U.S.C. § 1326 are unconstitutional. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but argues that Almendarez-Torreshas been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). And, as Bonilla concedes, this court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Hopwood v. State of Texas, 84 F.3d 720, 722 (5th Cir.1996). Therefore, his constitutional challenge to § 1326(b) fails, and we affirm his conviction. B. Bonilla also argues that the district court improperly enhanced his sentence under U.S.S.G. § 2L1.2(b)(l)(A)(ii) by classifying his 2000 California conviction for sexual battery as a crime of violence. Because he failed to raise this issue in the district court, we review for plain error. The Government urges us to refrain from addressing this issue on the ground that Bonilla waived any objection to his crime-of-violence enhancement at sentencing. However, the Government did not raise this waiver argument in its brief. Rather, it addressed the merits of Bonil-la’s enhancement under a plain error standard of review. After the parties filed their briefs, we decided United States v. Calderon-Pena, 383 F.3d 254 (5th Cir.2004), which held that a defendant’s prior Texas conviction of child endangerment was not a crime of violence for sentence-enhancement purposes because it did not require the use of force as an element. Therefore, we asked the parties for supplemental briefing about,"
},
{
"docid": "22847301",
"title": "",
"text": "the now-advisory Sentencing Guidelines was in effect when Fernandez-Cusco was sentenced in February 2005 for his illegal-reentry conviction. His base offense level of 8 was increased by 16 levels, pursuant to Sentencing Guideline § 2L1.2(b)(l)(A)(ii), the district court adopting the recommendation in the Presentence Investigation Report (PSR) that Fernandez^Cusco’s previous Minnesota sexual-conduct crime was a “crime of violence”. After a three-level aceeptance-of-responsibility reduction, his total offense level was 21, with an advisory guideline range of 46 to 57 months. Fernandez-Cusco was sentenced to 46 months in prison, followed by a two-year supervised release. II. As described, Fernandez-Cusco raises three issues. The principle issue concerns the erime-of-violence ruling. He concedes the other two issues are foreclosed by our precedent. A. Concerning his conviction and sentence, Fernandez-Cusco contends the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional. This issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although Fernandez-Cusco maintains Al-mendarez-Torres was incorrectly decided and that a majority of the Supreme Court would overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), our court has repeatedly rejected this contention on the basis that Almendarez-Torres remains binding. See United States v. Garzcu-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, — U.S.-, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Fernandez-Cusco concedes this claim is foreclosed; he raises it only to preserve it for further review. B. Fernandez-Cusco was sentenced a few weeks after the Sentencing Guidelines were held in January 2005 to be only advisory. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Nevertheless, post-Booker, district courts must still consider, and properly apply, the Guidelines. E.g., United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Mares, 402 F.3d 511, 518 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Fernandez-Cusco claims his prior guilty-plea conviction for criminal sexual conduct is not a crime of violence under the 2004 Guideline § 2L1.2(b)(l)(A)(ii). He did"
},
{
"docid": "22411025",
"title": "",
"text": "Code § 211.1(2). Notwithstanding the minor differences between the definitions, the court concluded that “California’s focus on the defendant’s intentional conduct in contrast to the Model Penal Code’s intentional result is not enough to remove the California statute from the family of offenses commonly known as ‘aggravated assault.’ ” Id. at 414. A similar conclusion is appropriate here. Although the majority of states focus on an act of force in articulating the requisite level of immediate danger, and the Texas statute focuses on the realization of the immediate danger through actual or threatened bodily injury, the difference is not enough to remove the Texas statute from the family of offenses commonly known as “robbery.” Rather, the elements of the Texas statute substantially correspond to the basic elements of the generic offense, in that they both involve theft and immediate danger to a person. Accordingly, the district court did not err by enhancing Santiesteban’s sentence for his prior § 29.02 conviction. This holding is the natural result of the “common sense approach” that this court has adopted to address similar questions. See United States v. Torres-Diaz, 438 F.3d 529, 536-38 (5th Cir.2006); Sanchez-Ruedas, 452 F.3d at 413-14. B. Apprendi Challenge Santiesteban also contends that 8 U.S.C. § 1326(b) violates the Sixth Amendment under Apprendi. 530 U.S. at 466, 120 S.Ct. 2348. He acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but raises it to preserve it for further review. We have “repeatedly rejected arguments like the one made by [Santiesteban] and ... held that Almendarez-Torres remains binding despite Apprendi.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005); see also United States v. Delgado-Nunez, 295 F.3d 494, 498 (5th Cir.2002) (“Apprendi did not overrule AlmendarezTorres, which therefore remains good law.”). Accordingly, Santiesteban’s argument that § 1326 is unconstitutional in light of Apprendi fails. III. CONCLUSION Santiesteban’s guilty-plea conviction and the sentence imposed are AFFIRMED. . The record does not contain either the Texas charging instrument or any other documents or pleadings in the robbery case. ."
},
{
"docid": "23084532",
"title": "",
"text": "imprisonment, for an alien to reenter the country without permission after having previously been removed; Section 1326(b)(l)-(2) provides that aliens whose prior removal followed a conviction of certain crimes may be imprisoned for substantially longer terms. In Almendarez-Torres v. United States, the Supreme Court held that § 1326(b) set forth sen- tenting factors rather than separate offenses, and that the statute was constitutional. See 523 U.S. 224, 235, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Raising an objection that was not raised below, Sarmiento-Funes contends that 8 U.S.C. § 1326(b) is unconstitutional, on its face and as applied, in light of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that facts that increase a sentence beyond the statutory maximum must as. a general matter be found by a jury. But Apprendi explicitly refrained from overruling Almendarez-Torres, and this circuit has consistently rejected Sarmiento-Funes’s position, stating that it is for the Supreme Court to overrule Almendarez-Torres. See, e.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000). Sarmiento-Funes concedes that the issue is foreclosed by circuit precedent, and he presents the issue solely to preserve it for possible further review. III.' CONCLUSION For the foregoing reasons, the defendant’s conviction is AFFIRMED and his sentence is VACATED. The case is REMANDED to the district court for resen-tencing. . The record in this case includes a state court criminal information, but the information only tracks the language of the statute. This case accordingly does not involve the question of the extent to which the sentencing court can use charging papers to narrow down a broad statute in order to determine more precisely the nature of the conduct of which the defendant was convicted. See, e.g., Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Calderon-Pena, 339 F.3d 320 (5th Cir.2003), vacated & reh’g granted, 362 F.3d 293 (5th Cir.2004). Further, although the Presentence Investigation Report (PSR) contains some additional details possibly gleaned from a police report (although their provenance"
},
{
"docid": "6089939",
"title": "",
"text": "are we aware of any, requiring that the government charge -his prior conviction in the indictment. Garcia acknowledges the direct conflict between his argument and the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and contends that Almendarez-Torres was overruled or limited by the Supreme Court’s subsequent decision in Apprendi. We disagree. In Apprendi, the Supreme Court summarized its holding as follows: 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. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). As the quoted passage makes clear, the Court in Apprendi held that “prior convictions” need not be charged nor submitted to a jury. Indeed, the Court made clear that Almendarez-Torres was a “narrow exception to the general rule” announced in Apprendi. Id. at 490, 120 S.Ct. 2348. This ruling preserved the prior holding in Almendarez-Torres that under 8 U.S.C. § 1326, prior convictions are a sentencing factor, not an element of the crime, and need not be charged. Almendarez-Torres, 523 U.S. at 226-27, 118 S.Ct. 1219; see also Dahler v. United States, 259 F.3d 763, 765 (7th Cir.2001) (holding that Apprendi did not overrule Almendarez-Torres). Thus, under Almendarez-Torres, prior convictions need not be included in the indictment, regardless of whether the existence of the prior conviction increases the maximum term of imprisonment. Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. The trial judge did not commit error on this issue and Garcia’s Apprendi challenge to his sentence is rejected. B. Commission of an Aggravated Felony. Garcia next alleges that the court erred in finding that his 1988 Illinois conviction was an “attempted theft offense” that qualified as an “aggravated felony” for purposes of the penalty enhancement provisions of 8 U.S.C. § 1326(b)(2), and U.S.S.G. § 2L1.2(b)(l)(A). The question of what constitutes an “aggravated felony” is reviewed de novo. Solorzano-Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000). Congress, in enacting the INA, listed specific"
},
{
"docid": "22423766",
"title": "",
"text": "PER CURIAM: Teofilo Santos Rivera appeals his sentence following a guilty plea to illegal entry after deportation pursuant to 8 U.S.C. § 1326(b)(2). We review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. See United States v. Stevenson, 126 F.3d 662, 664 (5th Cir.1997). Rivera first contends that his sentence should be vacated' because his state felony conviction for possession of a controlled substance, which resulted in an increased sentence under 8 U.S.C. § 1326(b)(2), was an element of the offense that should have been charged in the indictment. Rivera acknowledges that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for Supreme Court review in light of the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi did not overrule Almendarez-Torres. See Apprendi, 120 S.Ct. at 2362; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 1214, 149 L.Ed.2d 126 (2001). Rivera’s argument is foreclosed. Rivera also challenges the characterization of his prior Texas conviction for cocaine possession as an “aggravated felony” offense and the concomitant sixteen-level increase in his base offense level under U.S.S.G. § 2L1.2(b)(l)(A), contending that his sentence should be reduced by the rule-of-lenity. Rivera’s constitutional claim that the rule-of-lenity is applicable is reviewed de novo. United States v. Romero-Cruz, 201 F.3d 374, 377 (5th Cir.), cert. denied, 529 U.S. 1135, 120 S.Ct. 2017, 146 L.Ed.2d 965 (2000). In United States v. Hinojosa-Lopez, 130 F.3d 691, 692-93, 694 (5th Cir.1997), we held that a state conviction is an “aggravated felony” pursuant to § 2L1.2(b)(l)(A) if “(1) the offense was punishable under the Controlled Substances Act and (2) it was a felony” under applicable state law. Id. at 694. Rivera has not explicitly disputed that, as a matter of statutory construction, his challenge to the § 2L1.2(b)(l)(A) increase is foreclosed by Hinojosa-Lopez. See United States v. Garcia Abrego, 141 F.3d"
},
{
"docid": "18282953",
"title": "",
"text": "enhancement as a “crime of violence” was proper. 421 F.3d 1156, 1160 (10th Cir.2005). We conclude that the “use” of a deadly weapon to cause bodily harm — as expressly charged in Velasco’s indictment and required by § 12 — 4(b)(1)——involves the element of the use of destructive physical force against the victim’s person. As a result, we hold that a conviction under § 12 — 4(b)(1) of the Illinois aggravated battery statute is a “crime of violence” for sentence-enhancement purposes. B. Constitutionality of 8 U.S.C. § 1826(b) Title 8 U.S.C. § 1326(a) makes it a crime, punishable by up to two years’ imprisonment, for an alien to reenter the country without permission after having previously been removed. Section 1326(b)(l)-(2) provides that aliens whose prior removal followed a conviction of certain crimes may be imprisoned for substantially longer terms. In Almendarez-Torres v. United States, the Supreme Court held that § 1326(b) set forth sentencing factors rather than separate offenses such that an indictment in an illegal reentry case need not allege a defendant’s prior conviction, and that the statute was constitutional. 523 U.S. 224, 247, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Velasco contends that 8 U.S.C. § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 489-90, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that facts that increase a sentence beyond the statutory maximum must as a general matter be found by a jury. But Apprendi explicitly refrained from overruling Almenda-rez-Torres, and this circuit has consistently rejected Velasco’s position, stating that it is for the Supreme Court to overrule Almendarez-Torres. See, e.g., United States v. Sarmiento-Funes, 374 F.3d 336, 345-46 (5th Cir.2004). Velasco concedes that the issue is foreclosed by circuit precedent, and he presents the issue solely to preserve it for possible further review. III. CONCLUSION For the foregoing reasons, we AFFIRM Velasco’s judgment of conviction and sentence. . Velasco was deported from the United States on July 10, 1998. He did not have permission from the Attorney General or the Secretary of the Department of Homeland Security"
},
{
"docid": "19652777",
"title": "",
"text": "EDITH H. JONES, Chief Judge: Agustín Pineda-Arrellano (“Pineda”) appeals his guilty plea conviction and sentence for illegal reentry. Pineda argues that the felony and aggravated felony provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the courts treat a defendant’s prior felony conviction as a statutory ground for a sentencing enhancement rather than as an element of the offense, which, pursuant to the Sixth Amendment, should be presented to the jury. Pineda’s case is one of hundreds, if not thousands, in this circuit in which counsel have raised this constitutional challenge. We take this opportunity to state that this issue no longer serves as a legitimate basis for appeal. Pineda makes the familiar contention that Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was incorrectly decided and that a majority of the Supreme Court would overrule it in light of the subsequent decision in Apprendi. We have repeatedly rejected such arguments on the basis that Almendarez-Torres remains binding precedent until and unless it is officially overruled by the Supreme Court. See, e.g., United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005). Pineda properly concedes that his argument is foreclosed by Almendarez-Torres and circuit precedent, but he nevertheless raised it as his sole appellate issue to preserve it for Supreme Court review. This court has patiently entertained the identical argument in countless cases. Now, however, a majority of the Supreme Court has reaffirmed Almendarez-Torres in James v. United States, - U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), stating that “we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes.” Id. at 1600 n. 8 (citing Almendarez-Torres ). Because the Supreme Court treats Almendarez-Torres as binding precedent, Pineda’s argument is fully foreclosed from further debate. That James interpreted the Armed Career Criminal Act is not a distinguishing feature from the illegal reentry statute under which this appellant was convicted, because both statutes enhance"
},
{
"docid": "22067224",
"title": "",
"text": "qualifies as a conviction for the enumerated offense of “aggravated assault,” and therefore that Alvarez was convicted of a crime of violence under section 2L1.2(b)(l)(A)(ii). Accordingly, we hold that the district court did not err in imposing the sixteen-level sentence enhancement. B. Alvarez’s constitutional challenge is foreclosed Alvarez contends that the sentence imposed by the district court is unconstitutional because it exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), he challenges the constitutionality of § 1326(b)’s treatment of his prior felony conviction as a sentencing factor rather than as an element of the offense that must be found by the jury. Alvarez’s challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), in which the Supreme Court held that the treatment of prior convictions as sentencing factors under § 1326(b) was constitutional. This court has repeatedly rejected arguments like the one made by Alvarez and has held that Almendarez-Torres remains binding despite Apprendi. See, e.g, United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.2005); United States v. Mendez-Villa, 346 F.3d 568, 570-71 (5th Cir.2003). Alvarez concedes that his argument is foreclosed and raises the argument to preserve it for further review. IV. CONCLUSION For the reasons stated above, the sentence imposed by the district court is AFFIRMED. AFFIRMED. . The commentary to § 2L1.2 is binding and is equivalent in force to the Guideline language, itself, as long as the language and the commentary are not inconsistent. United States v. Rayo-Valdez, 302 F.3d 314, 318 n. 5 (5th Cir.2002). . Because we conclude that Alvarez's conviction qualifies as a conviction for the enumerated offense of \"aggravated assault,” we need not decide whether his offense has as an element the use, attempted use, or threatened use of physical force against the person of another. See U.S.S.G. § 2L1.2 cmt. n.l(B)(iii)."
},
{
"docid": "23492974",
"title": "",
"text": "felony. RodriguezMontelongo asserts that § 1326(b)(2) creates a separate offense and that an element of this separate offense is a prior aggravated-felony conviction. Because the indictment did not allege a prior aggravated-felony conviction, Rodriguez-Montelongo argues that the only offense charged was that under § 1326(a). Therefore, he contends that because § 1326(a) has a maximum 2-year sentence, the district court exceeded the statutory maximum by sentencing Rodriguez-Montelongo to 41 months in prison. Rodriguez-Montelongo recognizes that in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Supreme Court rejected an argument identical to the one he is making here. See id. at 235, 118 S.Ct. 1219. He contends, however, that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court “cast serious doubt” on Almenda-rez-Torres ’s validity. See id. at 489, 120 S.Ct. 2348 (stating that “it is arguable that Almendarez-Torres was incorrectly decided”). Rodriguez-Montelongo asserts that he raises this issue here only to preserve it for possible Supreme Court review. In Almendarez-Torres, the Supreme Court held that the enhanced penalties in § 1326(b) were sentencing factors, rather than elements of separate offenses. See 523 U.S. at 235, 118 S.Ct. 1219 (“In sum, we believe that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.”). The Court concluded specifically that a prior conviction need not be treated as an element of the offense, even if it increases the statutory maximum. See id. at 239-47,118 S.Ct. 1219. Although Rodriguez-Montelongo is correct that Apprendi cast doubt on the continued validity of Almendarez-Torres, it did not overrule that decision. See Ap-prendi 530 U.S. at 489-90, 120 S.Ct. 2348 (footnote omitted) (“Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Ap-prendi does not contest the decision’s validity[,] and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the"
}
]
|
825217 | Borchard, Declaratory Judgments, pp. 803-04 (2d ed. 1941). Because of the public policy in breaking this “racket,” and in preventing an invalid patent from remaining in the art “as a scarecrow” (Bresnick v. United States Vitamin Corp., 2 Cir.,. 1943, 139 F.2d 239, 242), the declaratory remedy should be construed with liberality in the patent field as in general. Dewey & Almy Chemical Co. v. American Anode, Inc., 3 Cir., 1943, 137 F.2d 68, cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454; Treemond Co. v. Schering Corp., 3 Cir., 1941, 122 F.2d 702. All this does not, however, eliminate the requirement that a justiciable controversy be shown in the complaint. REDACTED d 69, 75-76. Several elements must be considered in determining whether a justiciable controversy has been shown in a patent case: (1) the position of the declaratory plaintiff; (2) the nature of the threat made against him; (3) the party making the threat and whether his action can be attributed to the patent owner. Borchard, supra, at page 807; Note, Justiciable Controversy Under the Federal Declaratory Judgment Act and the Exercise of Patent Rights, 22 Geo. Wash.L.Rev. 63, 64-65 (1953). As to the first element, while the early cases required that plaintiff actually be engaged in infringing conduct, this is no longer the law, and it is now sufficient that plaintiff either be engaged in manufacturing, using or selling the invention, or that he has | [
{
"docid": "12757854",
"title": "",
"text": "the statement appearing 319 U.S. on page 363, 63 S.Ct on page 1117 of its opinion that: “To hold a patent valid if it is not infringed is to decide a hypothetical case.” Thus, although it might well be thought that to hold a patent invalid once it had been found not infringed would also be to decide a hypothetical case, the law since the Altvater case is settled that a court retains jurisdiction to hold a patent invalid even after it has been found' not infringed. Explanation of this apparent inconsistency perhaps lies in the fact that of the two questions of validity and infringement, “validity has the greater public importance,” Sinclair & Carroll Co. v. Interchemical Corp., 1945, 325 U.S. 327, 330, 65 S.Ct. 1143, 1145, 89 L.Ed. 1644, for it is of greater interest to the public that an invalid patent “should not remain in the art as a scarecrow,” Bresnick v. United States Vitamin Corp., 2 Cir., 1943, 139 F.2d 239, 242, than that a patent has been infringed by some particular defendant. See Addressograph-Multigraph Corp. v. Cooper, 2 Cir., 1946, 156 F.2d 483, 485. But it does not follow from this interest of the public that there is no need for an actual controversy to exist over the validity of a patent to give a court jurisdiction to declare it invalid in a suit against the patentee for a declaratory judgment to that effect. While the constitutional limitation on the federal judicial power to “cases” or “controversies” is not interpreted in any narrow or technical sense so far as de claratory judgments are concerned, nevertheless, to give jurisdiction to enter such a judgment: “There must be a concrete case touching the legal relations of parties having adverse legal interests, and susceptible ‘of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged.’ The distinction is between a case ‘appropriate for judicial determination’ on the one hand, and a ‘difference or dispute of a hypothetical or abstract character’ on the other.” Dewey & Almy Chemical Co."
}
]
| [
{
"docid": "14141699",
"title": "",
"text": "the Supreme Court’s instruction in Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 92 L.Ed. 784 (1948), that the discretion is to be “exercised in the public interest” and in such a way as “to strike a proper balance between the needs of the plaintiff and the consequences of giving the desired relief.” Also quoted with some frequency is Professor Borchard’s “general rule that the declaration is an instrument of practical relief and will not be issued where it does not serve a useful purpose.” E. Borchard, supra, at 307. Finally, this court has placed some emphasis on the likelihood that a controversy — particularly one of questionable vitality — will recur. Alton & So. Ry. Co. v. International Ass’n of Machinists & Aerospace Workers, 150 U.S.App.D.C. 36, 463 F.2d 872, 880-82 (1972). Certainly one of the most common and indisputably appropriate uses of the declaratory judgment procedure is to enable one who has been charged with patent infringement to secure a binding determination of whether proposed conduct will infringe a patent in question without waiting until he becomes the defendant in an actual infringement suit. The purpose of granting declaratory relief to one potentially liable for infringement is to allow him to know in advance whether he may legally pursue a particular course of conduct. The commercial or manufacturing activity he proposes may be of substantial benefit to society, yet it may have to be abandoned if it must be carried out at the risk of liability for patent infringement. Indeed, it was part of the purpose of the Declaratory Judgment Act to prevent patent owners from suppressing competition by threatening infringement without ever actually bringing the suits that would put their patents to the test. See E. Borchard, supra, at 803-04. The courts have therefore been especially generous in granting declaratory relief to the alleged infringer, anxious, in Learned Hand’s much-quoted phrase, that an invalid or overbroad patent claim not “remain in the art as a scarecrow.” Bresnick v. United States Vitamin Corp., 139 F.2d 239, 242 (2d Cir. 1943). See also Broadview Chem. Corp."
},
{
"docid": "7098276",
"title": "",
"text": "future Crowley may also think the products are identical and at that time might charge infringement by Philips’ licensees, but that has not happened yet, so far as we know from the complaint’s allegations. Philips’ fears are merely conjectural. By no twist of logic or words can Crowley’s alleged assertions alone be read to mean what Philips insists they mean. Though it be true, as Philips points out, that a charge of infringement or threat of suit by a patentee may be craftily phrased and need not be given directly, Treemond Co. v. Schering Corp., 3 Cir., 1941, 122 F.2d 702; Dewey & Almy Chemical Co. v. American Anode, Inc., 3 Cir., 1943, 137 F.2d 68, such is not the case here. We can find no charge or threat in Crowley’s alleged assertions, and without such charges or threats Crowley’s patent cannot be the subject matter of a controversy which can sustain a declaratory judgment action. See Treemond Co. v. Schering Corp., supra, 122 F.2d at page 705; Dewey & Almy Chemical Co. v. American Anode, Inc., supra, 137 F.2d at page 70. Whether or not the district court abused its discretion in refusing to enjoin Crowley from prosecuting the New York action is the question raised as to count one. Philips says that the New Jersey action should not have been stayed pending disposition of the New York action because (1) the Crowley patent is not in issue in the New York action and therefore only the New Jersey district court can adjudicate all the issues between the parties; (2) the New Jersey forum is more convenient for the parties; and (3) Hartford, an indispensable party, is not a party to the New York action but is a party in the New Jersey action. Since we decide that the Crowley patent is not properly in issue in the New Jersey district court, the first reason assigned by Philips need not detain us. Philips has also failed to show any abuse of discretion by the district court in concluding that the New York forum is as convenient as the New"
},
{
"docid": "23179791",
"title": "",
"text": "the affidavits submitted on the reargument in an endeavor to satisfy the requirement of a justiciable controversy referred to events subsequent to the filing of the complaint, the amendment itself did not, and hence was clearly not a supplemental pleading. Taking the plaintiff’s allegations in the complaint and affidavits as true, as we must do, we think that there is an issue of fact as to whether an actual controversy' existed at the time the complaint was filed, as required by Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617, before a declaratory judgment action may be brought. Once the patentee has made some claim, directly or indirectly, so that notice is given that it asserts that there is or will be an infringement, a justiciable controversy exists, entitling the alleged infringer to seek declaratory relief. Treemond Co. v. Schering Corp., 3 Cir., 122 F.2d 702; Dewey & Almy Chemical Co. v. American Anode, Inc., 3 Cir., 137 F.2d 68, certiorari denied 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454. It is not clear whether the plaintiff had sufficiently embarked on its infringing action to establish an actual controversy at the time the defendant threatened suit two years prior to the commencement of this action. If this threat was not sufficient, it was followed on October 25, 1951, by a claim of infringement and the further threat of suit. It is argued by the defendant that if the plaintiff had not begun manufacture of its tapes at the time of the interview on October 25 there could be no justiciable controversy. But at that time it had already conducted a pilot run and had imported tape manufactured by its Canadian affiliate. Further, manufacture did begin before suit was brought. Under these circumstances we think that there were sufficient acts and contemplated acts of infringement to create a controversy when the threats were made. Moreover, where there is such an evident intention to market a product and preparation of the means to do so, there would seem to be no sense in requiring"
},
{
"docid": "23676063",
"title": "",
"text": "does not, however, eliminate the requirement that a justiciable controversy be shown in the complaint. Hawley Products Co. v. United States Truck Co., 1 Cir., 1958, 259 F.2d 69, 75-76. Several elements must be considered in determining whether a justiciable controversy has been shown in a patent case: (1) the position of the declaratory plaintiff; (2) the nature of the threat made against him; (3) the party making the threat and whether his action can be attributed to the patent owner. Borchard, supra, at page 807; Note, Justiciable Controversy Under the Federal Declaratory Judgment Act and the Exercise of Patent Rights, 22 Geo. Wash.L.Rev. 63, 64-65 (1953). As to the first element, while the early cases required that plaintiff actually be engaged in infringing conduct, this is no longer the law, and it is now sufficient that plaintiff either be engaged in manufacturing, using or selling the invention, or that he has the immediate intention and ability to do so. Technical Tape Corp. v. Minnesota Mining & Mfg. Co., 2 Cir., 1952, 200 F.2d 876, 878; Welch v. Grindle, 9 Cir., 1957, 251 F.2d 671, 678; Crowell v. Baker Oil Tools, 9 Cir., 1944, 143 F.2d 1003, 1004, cert. denied, 323 U.S. 760, 65 S.Ct. 93, 89 L.Ed. 608; United States Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Corp., S.D.N.Y.1946, 67 F.Supp. 895, 898; General Electric Co. v. Refrigeration Patents Corp., W.D.N.Y. 1946, 65 F.Supp. 75, 78; Borchard, supra at page 807; 22 Geo.Wash.L.Rev., supra at 69-71. The converse is equally true; that where there is no actual manufacture, use or sale, and no immediate intention and ability to practice the invention, there is no justiciable controversy. Dewey & Almy Chemical Co. v. American Anode, Inc., supra, 137 F.2d at 70; Fash v. Clayton, D.N.Mex.1948, 78 F.Supp. 359, 361. The explanation for these principles is that it would be economically wasteful to require a plaintiff to embark on an actual program of manufacture, use or sale which may turn out to be illegal (Crowell v. Baker Oil Tools, supra, 143 F.2d at 1004) ; on the other hand, a"
},
{
"docid": "10669393",
"title": "",
"text": "rights, there could be no controversy under the patent laws and no right to relief under the Declaratory Judgments Act.”) See also American Needle & Novelty Co. v. Schuessler Knitting Mills, Inc., supra; Walker Process Equipment, Inc. v. FMC Corp., 356 F.2d 449, 451 (7th Cir.), cert. denied, 385 U.S. 824, 87 S.Ct. 56, 17 L.Ed.2d 61 (1966); Hartford National Bank & Trust Co. v. Henry L. Crowley & Co., 219 F.2d 568, 570-571 (3rd Cir. 1955). But, as Professor Moore observes, the requirement that there must have been a “charge of infringement” has been given a very liberal interpretation. 6A Moore’s Federal Practice ¶ 57.20 at 3119 (2d ed. 1966). In patent cases of this kind, it is clear that an “actual controversy” is present if the defendant patentee has charged the plaintiff with infringement, or has threatened plaintiff with an infringement suit, either directly or indirectly. Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998, 999-1000 (2d Cir.), cert. denied, 397 U.S. 1064, 90 S.Ct. 1502, 25 L.Ed.2d 686 (1970); Muller v. Olin Mathieson Chemical Corp., 404 F.2d 501, 504-505 (2d Cir. 1968); see Leesona Corp. v. Concordia Mfg. Co., Inc., 312 F.Supp. 392, 397 (D.R.I.1970). Actual or threatened suits against plaintiff’s customers, Sticker Industrial Supply Corp. v. Blaw-Knox Co., 367 F.2d 744 (7th Cir. 1966), Alfred Hoffman, Inc. v. Knitting Machines Corp., 123 F.2d 458 (3rd Cir. 1941); a suit against another manufacturer of a similar product, Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68 (3rd Cir.), cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1943), a notice in a trade journal, Treemond Co. v. Schering Corp., 122 F.2d 702 (3rd Cir. 1941), have all been held sufficient indirect threats of an infringement suit to support an action for a declaratory judgment of non-infringement or invalidity of a patent. Indeed, in Dewey & Almy Chemical Co. v. American Anode, Inc., supra, 137 F.2d at 71, Judge Magruder, speaking for the Third Circuit, held that an “actual controversy” was present in such an action even though the defendant patentee was not"
},
{
"docid": "11828203",
"title": "",
"text": "within which a particular invention has been designed to operate is proper and familiar, but does not enlarge the invention. See Williams Mfg. Co. v. United Shoe Machinery Corp., 1942, 316 U.S. 364, 380, 62 S.Ct. 1179, 86 L.Ed. 1537. II Appellant further contends that the patent issued to Kepner upon termination of the interference proceeding is void for lack of invention because disclosed by prior art. As warranting adjudication of this issue he invokes both the Declaratory Judgment Act, 28 U.S.C. § 2201 (1946 ed.) and Section 4915 of the Revised Statutes. But some manifest threat to the interests or interference with the activities of the petitioner beyond the issuance of a patent to another is required to create a controversy justiciable under the Declaratory Judgment Act between him whom the patent may injure and the patentee. Treemond Co. v. Schering Corp., 3 Cir., 1941, 122 F.2d 702, 705; followed in Federal Telephone & Radio Corp. v. Associated Telephone & Telegraph Co., 3 Cir., 1948, 169 F.2d 1012, certiorari denied, 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406; Borchard, Declaratory Judgments, 1941 ed., 807. Here there is no claim that Kepner has done anything menacing to Sanford beyond the acquisition of letters patent. Hence, the Declaratory Judgment Act supplies no basis for relief beyond what Section 4915 may provide. The substantial question is whether, in a Section 4915 proceeding, a court, having decided that a claimant does not have priority of invention, should also pass upon the issue of patentability. That question is not raised here for the first time. This court has held that where priority of invention is ■ decided against the plaintiff in a proceeding under Section 4915, the patentability of defendant’s invention should not be adjudicated. Smith v. Carter Carburetor Corp., 3 Cir., 1942, 130 F.2d 555; S. & S. Corrugated Paper Machinery Co., Inc. v. George W. Swift, Jr., Inc., supra, (by implication). Such a judgment merely dismissing the claim of priority, does not “impute any validity to the defendant’s patent or approval of the claims thereof as drafted.” 130 F.2d at page"
},
{
"docid": "17704862",
"title": "",
"text": "Harvester Co. v. Deere & Co., 623 F.2d 1207 (7th Cir.1980), we held that there are two prerequisites for establishing an actual controversy in a patent infringement declaratory judgment action. First, the defendant must have engaged in conduct creating a reasonable apprehension that the plaintiff will face an infringement suit or the threat of one if it commences or continues the questionable activity. Second, the plaintiff must have produced the accused article or have engaged in preparations such that, but for a finding that the product infringes or for extraordinary and unforeseen contingencies, the plaintiff would and could begin production immediately. Id. at 1210 (citations omitted). In connection with this latter element, the plaintiff must possess the “apparent ability and definite intention ... to manufacture and sell a product similar to ... defendant’s_” Id. at 1215 (citation omitted). Whether a justiciable controversy exists is measured by examining the state of affairs at the time the complaint is filed. Id. Reasonable apprehension exists when there is “an implied charge, or a course of conduct on the part of the defendant which would cause a reasonable man to fear that he or his customers face an infringement suit or threat of one.” Grafon Corp. v. Hausermann, 602 F.2d 781, 783-84 (7th Cir.1979). A reasonable apprehension of an infringement suit may be based upon the defendant’s assertion of exclusive rights against another party. See Interdynamics, Inc. v. Firma Wolf, 698 F.2d 157, 168 n. 12 (3rd Cir.1982); Smith-Corona Marchant, Inc. v. American Photocopy Equip. Co., 214 F.Supp. 348, 352 (S.D.N.Y.1962); 6A J. Moore, Moore’s Federal Practice ¶ 57.20, at 57-225 (2d ed.1987) (citing Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68 (3rd Cir.), cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1943)). The undisputed facts establish that Miller possessed a reasonable apprehension of encountering an infringement action or threat of one at the time the complaint was filed. Busch had commenced an action on April 18, 1984, against the Stroh Brewery in the Eastern District of Missouri in response to Stroh’s announcement of its plans to"
},
{
"docid": "23676064",
"title": "",
"text": "878; Welch v. Grindle, 9 Cir., 1957, 251 F.2d 671, 678; Crowell v. Baker Oil Tools, 9 Cir., 1944, 143 F.2d 1003, 1004, cert. denied, 323 U.S. 760, 65 S.Ct. 93, 89 L.Ed. 608; United States Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Corp., S.D.N.Y.1946, 67 F.Supp. 895, 898; General Electric Co. v. Refrigeration Patents Corp., W.D.N.Y. 1946, 65 F.Supp. 75, 78; Borchard, supra at page 807; 22 Geo.Wash.L.Rev., supra at 69-71. The converse is equally true; that where there is no actual manufacture, use or sale, and no immediate intention and ability to practice the invention, there is no justiciable controversy. Dewey & Almy Chemical Co. v. American Anode, Inc., supra, 137 F.2d at 70; Fash v. Clayton, D.N.Mex.1948, 78 F.Supp. 359, 361. The explanation for these principles is that it would be economically wasteful to require a plaintiff to embark on an actual program of manufacture, use or sale which may turn out to be illegal (Crowell v. Baker Oil Tools, supra, 143 F.2d at 1004) ; on the other hand, a vague and unspecific “desire” to practice an invention if a patent should turn out to be invalid smacks too much of the hypothetical and contingent, and allowing the declaratory remedy in such a situation would unfairly subject the defendant to the burdens of a lawsuit. 22 Geo. Wash.L.Rev., supra at 70-71; Russell, Some Patent Aspects of Declaratory Procedure, 32 J.Pat.Off.Soc’y 504, 525-30 (1950). In the instant case it is not contended that plaintiff has entered upon an actual manufacture, use or sale of its necktie. Whether it has the immediate intention and ability of doing so is a difficult question. The fact that plaintiff may have made its “proposed” necktie for the purpose of provoking a lawsuit does not itself require that we hold no justiciable controversy exists. Cf. Evers v. Dwyer, 1958, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222. But see United States Industrial Chemicals, Inc. v. Carbide & Carbon Chemicals Corp., supra, 67 F.Supp. at 898. This single act, as defendant points out, is quite insubstantial in comparison with the steps"
},
{
"docid": "18451942",
"title": "",
"text": "the complaint on grounds that the subject matter of the amendment arose subsequent to the filing of the original complaint and that, therefore, under Rule 15 of the Federal Rules of Civil Procedure only the filing of a supplemental complaint, requiring the Court’s approval, would be proper. It has also moved to dismiss the original complaint for lack of jurisdiction in that no justiciable controversy between the parties existed at the time the complaint was filed. Cosden has moved for a temporary injunction to prevent prosecution of the second-filed Dallas suit during the pendency of this action. It has also moved for leave to file the amended complaint as a supplementary complaint in the event defendant’s motion to strike is granted. All motions have now been fully briefed and argued and both sides have submitted affidavits and deposition testimony in support of their respective positions. I. FOSTER GRANT’S MOTION TO DISMISS THE ORIGINAL COMPLAINT. Suit cannot be brought under the Declaratory Judgment Act absent a controversy between adverse parties which is both real and immediate. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826 (1941); Simmonds Aerocessories v. Elastic Stop Nut Corp., 257 F.2d 485 (3rd Cir. 1958); Polaroid Corp. v. Berkey Photo, Inc., 425 F.Supp. 605 (D.Del.1976); Japan Gas Lighter Assn. v. Ronson Corp., 257 F.Supp. 219 (D.N.J.1966). In the context of a suit for declaration of patent invalidity and non-infringement, this means that the plaintiff must demonstrate conduct on the part of the owner giving rise to a “reasonable apprehension” that the owner will ultimately litigate to enforce his rights against the plaintiff. Japan Gas Lighter Assn. v. Ronson Corp., supra. See also Polaroid Corp. v. Berkey Photo, Inc., supra. No explicit threat of litigation need be made by the patent owner to give rise to such reasonable apprehension. Simmonds Aerocessories v. Elastic Stop Nut Corp., supra; Dewey & Almy Chem. Co. v. American Anode, Inc., 137 F.2d 68 (3rd Cir. 1943), cert. denied 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1943); Polaroid Corp. v. Berkey Photo,"
},
{
"docid": "23676062",
"title": "",
"text": "237, 241-244, 73 S.Ct. 236, 97 L.Ed. 291. Turning to the patent field in particular, it may be noted that the availability of declaratory relief has destroyed the “racket” by which patentees gained manifold advantages by the device of threatening alleged infringers or their customers with lawsuits which might never be brought or, if brought, could always be dismissed without prejudice, without the possibility of such persons taking steps to ascertain the validity of the patentee’s claims. Borchard, Declaratory Judgments, pp. 803-04 (2d ed. 1941). Because of the public policy in breaking this “racket,” and in preventing an invalid patent from remaining in the art “as a scarecrow” (Bresnick v. United States Vitamin Corp., 2 Cir.,. 1943, 139 F.2d 239, 242), the declaratory remedy should be construed with liberality in the patent field as in general. Dewey & Almy Chemical Co. v. American Anode, Inc., 3 Cir., 1943, 137 F.2d 68, cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454; Treemond Co. v. Schering Corp., 3 Cir., 1941, 122 F.2d 702. All this does not, however, eliminate the requirement that a justiciable controversy be shown in the complaint. Hawley Products Co. v. United States Truck Co., 1 Cir., 1958, 259 F.2d 69, 75-76. Several elements must be considered in determining whether a justiciable controversy has been shown in a patent case: (1) the position of the declaratory plaintiff; (2) the nature of the threat made against him; (3) the party making the threat and whether his action can be attributed to the patent owner. Borchard, supra, at page 807; Note, Justiciable Controversy Under the Federal Declaratory Judgment Act and the Exercise of Patent Rights, 22 Geo. Wash.L.Rev. 63, 64-65 (1953). As to the first element, while the early cases required that plaintiff actually be engaged in infringing conduct, this is no longer the law, and it is now sufficient that plaintiff either be engaged in manufacturing, using or selling the invention, or that he has the immediate intention and ability to do so. Technical Tape Corp. v. Minnesota Mining & Mfg. Co., 2 Cir., 1952, 200 F.2d 876,"
},
{
"docid": "11330180",
"title": "",
"text": "came within the proscriptions of the unfair competition laws; however, the remedy afforded in unfair competition was often inadequate. The Declaratory Judgment Act now affords the accused infringer an opportunity to obtain a declaration as to the invalidity or infringement of the patent in question. See Treemond Co. v. Schering Corp., 122 F.2d 702 (3rd Cir. 1941); 6 Moore’s Federal Practice, 2nd Ed., pp. 3116-117. The Declaratory Judgment Act gives the court jurisdiction only in “a case of actual controversy.” (28 U.S.C.A. § 2201.) In E. W. Bliss Co. v. Cold Metal Process Co., 102 F.2d 105, 108 (6th Cir. 1939), the Court stated: “In Aetna Life Insurance Co. [of Hartford, Conn.] v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000, the Supreme Court recently restated the principles governing determination of the existence of a controversy in the constitutional sense, and the cases are there fully reviewed. The Declaratory Judgment Act is operative only in respect to such controversy, which must be one that is appropriate for judicial determination, distinguishable from a dispute of hypothetical or abstract character. It must be definite and concrete, touching the legal relations of parties having adverse legal interests and admitting of specific relief through a decree of a conclusive character as distinguished from aii opinion advising what the law would be on a hypothetical state of facts, even though adjudication may not require the award of process, the payment of damages or the granting of an injunction.\" In declaratory judgment actions involving patents there cannot be a justiciable controversy unless the defendantpatentee has charged the plaintiff with infringement; however, the “charge of infringement” has been given a liberal interpretation, e. g., threatened suits against the customers of plaintiff and notices to trade journals have been sufficient. See Treemond, supra; Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68 (3rd Cir. 1943), cert. den. 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1948); Tuthill v. Wilsey, 182 F.2d 1006 (7th Cir. 1950); 6 Moore’s Federal Practice, 2nd Ed., pp. 3119-120, and authorities cited therein. See also"
},
{
"docid": "23287449",
"title": "",
"text": "L.Ed. 608 (1944); Treemond Co. v. Schering Corp., 122 F.2d 702, 704 (3d Cir. 1941). Judge Learned Hand described invalid or overbroad patents as “scarecrows” in the art. Bresnick v. United States Vitamin Corp., 139 F.2d 239, 242 (2d Cir. 1943). See also Hanes Corp. v. Millard, supra, 531 F.2d at 592. The Act permits competitors in some instances to eliminate these “scarecrows” without waiting to be sued. In addition to promoting fair competition, the availability of declaratory relief in patent cases promotes judicial efficiency: [T]he declaratory judgment action in patent matters [is] a means of avoiding multiplicity of actions and the endless delays and uncertainties which various suits in different jurisdictions testing different aspects of a broad patent controversy can entail.... The crowded dockets of our District Courts cannot tolerate this type of excessive and unproductive “guerilla warfare” litigation and the public’s interest in certainty and prompt decision, particularly where potential competition may well be suppressed unnecessarily through the use of questionable patents, cannot be ignored. Windmoller v. Laguerre, 284 F.Supp. 563, 564-65 (D.D.C.1968) (citations omitted). The foregoing discussion of the policies concerning the applicability of the Act to patent cases does not, of course, help us decide whether a particular action is a case or controversy within the meaning of Article III. It does, however, assist us in for mulating a standard for making that determination. We infer from the arguments of the parties that they agree that an actual threat of litigation must be made by the patentee for a case or controversy to exist. We assume that the district court applied this standard in reaching its decision. We conclude that the Constitution has a much lower threshold than this standard would suggest. The strongest statement that we have found that an actual threat of litigation is necessary for a case or controversy to exist for declaratory relief is in Muller v. Olin Mathieson Chemical Corp., 404 F.2d 501 (2d Cir. 1968). In Muller, the court stated that “a justiciable controversy is present if defendant, the patentee, has charged plaintiff with infringement, or has threatened plaintiff with"
},
{
"docid": "11330181",
"title": "",
"text": "from a dispute of hypothetical or abstract character. It must be definite and concrete, touching the legal relations of parties having adverse legal interests and admitting of specific relief through a decree of a conclusive character as distinguished from aii opinion advising what the law would be on a hypothetical state of facts, even though adjudication may not require the award of process, the payment of damages or the granting of an injunction.\" In declaratory judgment actions involving patents there cannot be a justiciable controversy unless the defendantpatentee has charged the plaintiff with infringement; however, the “charge of infringement” has been given a liberal interpretation, e. g., threatened suits against the customers of plaintiff and notices to trade journals have been sufficient. See Treemond, supra; Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68 (3rd Cir. 1943), cert. den. 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1948); Tuthill v. Wilsey, 182 F.2d 1006 (7th Cir. 1950); 6 Moore’s Federal Practice, 2nd Ed., pp. 3119-120, and authorities cited therein. See also Massa v. Jiffy Products Co., 240 F.2d 702 (9th Cir. 1957), cert. den. 353 U.S. 947, 77 S.Ct. 825, 1 L.Ed.2d 856 (1957); and Borchard, Declaratory Judgments, 2nd Ed. 1941, p. 807. Professor Borchard states (page 807) the policy reasons for requiring a charge of infringement: “Justiciability, however, is hardly possible before the alleged infringer or his customers or dealers have been notified of the patentee’s claim, however informal the method of notification or charge. The question has arisen whether such claim or notice or charge should be required, and whether it ought not to be possible, as in certain foreign countries, for a manufacturer, definitely contemplating making and selling a certain article, to bring an action against the owner of a possible conflicting patent for a declaration that his contemplated article does not infringe. An early adjudication of such an issue might prevent much economic waste and useless expenditure of money. The patentee himself, desiring to enjoin an infringement, need give no advance notice that his patent even exists. And yet, it seems best"
},
{
"docid": "6008294",
"title": "",
"text": "Life Insurance Co. v. Haworth, 300 U.S. 227, 239-240, 57 S.Ct. 461, 81 L.Ed. 617 (1937); Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68, 70 (3d Cir.), cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1943). Under this standard [t]here must be a concrete case touching the legal relations of parties having adverse legal interests, and susceptible “of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged.” The distinction is between a ease “appropriate for judicial determination” on the one hand, and a “difference or dispute of a hypothetical or abstract character” on the other. Dewey & Almy Chemical Co. v. American Anode, Inc., supra, 137 F.2d at 70, citing, Aetna Life Insurance Co. v. Haworth, supra, 300 U.S. at 240-241, 57 S.Ct. 461. Applying these general principles in any given case is somewhat difficult; for, as the Supreme Court stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941): The difference between an abstract question and a “controversy” contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Generally speaking, in patent cases it is held that there is such an “actual controversy” only if the patentee-defendant in the declaratory judgment lawsuit has either expressly or impliedly charged the plaintiff with infringement of its patent. However, the requirement of a charge of infringement is liberally construed. Sweetheart Plastics, Inc. v. Illinois Tool Works, Inc., 439 F.2d 871, 874 (1st Cir. 1971); Muller v. Olin Mathieson Chemical Corp., 404 F.2d 501, 504 (2d Cir. 1968). In Robin Products Co. v. Tomecek, 465"
},
{
"docid": "10669394",
"title": "",
"text": "Mathieson Chemical Corp., 404 F.2d 501, 504-505 (2d Cir. 1968); see Leesona Corp. v. Concordia Mfg. Co., Inc., 312 F.Supp. 392, 397 (D.R.I.1970). Actual or threatened suits against plaintiff’s customers, Sticker Industrial Supply Corp. v. Blaw-Knox Co., 367 F.2d 744 (7th Cir. 1966), Alfred Hoffman, Inc. v. Knitting Machines Corp., 123 F.2d 458 (3rd Cir. 1941); a suit against another manufacturer of a similar product, Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68 (3rd Cir.), cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1943), a notice in a trade journal, Treemond Co. v. Schering Corp., 122 F.2d 702 (3rd Cir. 1941), have all been held sufficient indirect threats of an infringement suit to support an action for a declaratory judgment of non-infringement or invalidity of a patent. Indeed, in Dewey & Almy Chemical Co. v. American Anode, Inc., supra, 137 F.2d at 71, Judge Magruder, speaking for the Third Circuit, held that an “actual controversy” was present in such an action even though the defendant patentee was not even aware of plaintiff’s activity. And in Wallace & Tiernan, Inc. v. General Electric Co., 291 F.Supp. 217 (S.D.N.Y.1968), a controversy was found to exist although the patentee had disclaimed any intention of suing the plaintiff. The liberal interpretation of the “charge of infringement” requirement for jurisdiction under the Declaratory Judgments Act is exemplified by such cases as Japan Gas Lighter Assn. v. Ronson Corp., 257 F.Supp. 219 (D.N.J.1966), in which the court stated: Such an action must be based on the plaintiff’s well grounded fear that should he continue or commence the activity in question,»*!he faces an infringement suit or the damaging threat of one to himself and his customers. The touchstone is a reasonable apprehension. There must be, in other words, some concrete indication that the defendant patentee claims the plaintiff’s activity infringes his patent, and also that he will act affirmatively to enforce the protection which he claims. 257 F.Supp. at 237. (emphasis in original). The Seventh Circuit Court of Appeals seems to have adopted substantially the same rule. Compare American Needle"
},
{
"docid": "1970486",
"title": "",
"text": "the defendant to the trade were untrue allegations as to the scope of its patent and that plaintiff thereby lost business and was damaged, and that the threat of an infringement suit hangs heavy over the heads of plaintiff and its customers. Defendant contends that because it has not formally made claim of infringement, of its patent by plaintiff’s product either, to plaintiff or its customers, a justiciable controversy does not exist. In-order to seek declaratory judgment relief as to- the validity of a patent, the claim against plaintiff need not be formally asserted; furthermore, it is not necessary that notice be given directly to the plaintiff' or that any threat be made to sue the plaintiff. Aralac, Inc., v. Hat Corp. of America, 3 Cir., 1948, 166 F.2d 286, 292. Notice in a trade journal is sufficient. Id. The test of a justiciable controversy is-, whether the facts alleged, under all the-circumstances, show that ■ there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Id. It is evident that there is a substantial controversy here. Defendant has by insinuations and innuendo threatened1! plaintiff and its customers with patent infringement suits; thereby the plaintiff, it is alleged, has lost and continues to lose business. The defendant apparently believes that it can avoid a court test of the validity of its patent, and the claim as to its scope made to the trade, by withholding formal claim of infringement. This is not the law. Even a person who is about to engage in conduct which a patentee has generally indicated would constitute an infringement may bring a declaratory judgment action before he is damaged. See Borchard, Declaratory Judgments, 2d Ed., p. 807. The case of Dewey & Almy Chemical Co. v. American Anode, 3 Cir., 1943, 137 F.2d 68, is almost on all fours with the present action; the only difference is that even less claim of infringement was made in that action. The Court in that case allowed the declaratory judgment action, refusing to allow"
},
{
"docid": "23179790",
"title": "",
"text": "to be. Bonner v. Elizabeth Arden, Inc., 2 Cir., 177 F.2d 703. In September 1952 after it had secured the dismissal of the complaint in the present action, Minnesota Mining & Manufacturing Co. brought suit in Chicago against Technical Tape and one of its distributors for infringement of the identical patent, and also commenced a suit in Kansas City against a company handling plaintiff’s tape. Even assuming that one of the disjunctive allegations of jurisdiction was insufficient while the other was not, Rule 8(e)2 of the Federal Rules, 28 U.S.C.A., contemplates such alternative allegations, and provides that no dismissal is to be granted if one of them is sufficient. See 2 Moore’s Federal Practice (2d edition), 1706. Keene Lumber Co. v. Leventhal, 1 Cir., 165 F.2d 815, relied on by the district court is not to the contrary, for in that case there was no jurisdiction under either of the alternative grounds that were alleged. Further, if the pleading was defective the requested amendment should have been allowed in order to cure the defect. Although the affidavits submitted on the reargument in an endeavor to satisfy the requirement of a justiciable controversy referred to events subsequent to the filing of the complaint, the amendment itself did not, and hence was clearly not a supplemental pleading. Taking the plaintiff’s allegations in the complaint and affidavits as true, as we must do, we think that there is an issue of fact as to whether an actual controversy' existed at the time the complaint was filed, as required by Ætna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 81 L.Ed. 617, before a declaratory judgment action may be brought. Once the patentee has made some claim, directly or indirectly, so that notice is given that it asserts that there is or will be an infringement, a justiciable controversy exists, entitling the alleged infringer to seek declaratory relief. Treemond Co. v. Schering Corp., 3 Cir., 122 F.2d 702; Dewey & Almy Chemical Co. v. American Anode, Inc., 3 Cir., 137 F.2d 68, certiorari denied 320 U.S. 761, 64 S.Ct. 70,"
},
{
"docid": "14141700",
"title": "",
"text": "in question without waiting until he becomes the defendant in an actual infringement suit. The purpose of granting declaratory relief to one potentially liable for infringement is to allow him to know in advance whether he may legally pursue a particular course of conduct. The commercial or manufacturing activity he proposes may be of substantial benefit to society, yet it may have to be abandoned if it must be carried out at the risk of liability for patent infringement. Indeed, it was part of the purpose of the Declaratory Judgment Act to prevent patent owners from suppressing competition by threatening infringement without ever actually bringing the suits that would put their patents to the test. See E. Borchard, supra, at 803-04. The courts have therefore been especially generous in granting declaratory relief to the alleged infringer, anxious, in Learned Hand’s much-quoted phrase, that an invalid or overbroad patent claim not “remain in the art as a scarecrow.” Bresnick v. United States Vitamin Corp., 139 F.2d 239, 242 (2d Cir. 1943). See also Broadview Chem. Corp. v. Loctite Corp., supra, at 1001; Wembley, Inc. v. Superba Cravats, Inc., 315 F.2d 87, 89 (2d Cir. 1963). This is of course only one way in which the declaratory judgment serves its more general purpose of “avoiding] accrual of avoidable damages to one not certain of his rights.” E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852, 854 (7th Cir.), cert. denied, 300 U.S. 680, 57 S.Ct. 673, 81 L.Ed. 884 (1937). See generally E. Borchard, supra, at 279-80. The crucial difference between this patent and others that the federal courts have freely reviewed on a declaratory basis is that this one has expired. No future activity on the part of Hanes will affect the liability it may have incurred during the patent’s life. There is no course of action Hanes wishes to pursue the legality of which is uncertain. As far as the patent is concerned, Hanes is simply in the position of one expecting to be sued for past alleged transactions. The question whether activities engaged in by Hanes between"
},
{
"docid": "23676061",
"title": "",
"text": "(2) plaintiff “has designed a necktie” and plaintiff believes this “proposed” necktie does not infringe defendant’s patent, which plaintiff alleges is invalid; (3) plaintiff submitted this single sample to defendant and' asked for an acknowledgment that such necktie does not infringe defendant’s patent so that it “may freely be manufactured and sold”; (4) defendant answered that “In our opinion this necktie is covered” by the patent, which has been in existence and “respected” for nine years, and that defendant “shall expect” that plaintiff “will respect the patent.” The Supreme Court has stated that the familiar distinction between definite, concrete and substantial controversies, which are justiciable, and hypothetical, abstract or academic ones, which are not, is one of degree, to be explored on a case by case basis. Aetna Life Ins. Co. v. Haworth, 1937, 300 U.S. 227, 239-241, 57 S.Ct. 461, 81 L.Ed. 617; Maryland Casualty Co. v. Pacific Coal & Oil Co., 1941, 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826; Public Service Comm. of Utah v. Wycoff Co., 1952, 344 U.S. 237, 241-244, 73 S.Ct. 236, 97 L.Ed. 291. Turning to the patent field in particular, it may be noted that the availability of declaratory relief has destroyed the “racket” by which patentees gained manifold advantages by the device of threatening alleged infringers or their customers with lawsuits which might never be brought or, if brought, could always be dismissed without prejudice, without the possibility of such persons taking steps to ascertain the validity of the patentee’s claims. Borchard, Declaratory Judgments, pp. 803-04 (2d ed. 1941). Because of the public policy in breaking this “racket,” and in preventing an invalid patent from remaining in the art “as a scarecrow” (Bresnick v. United States Vitamin Corp., 2 Cir.,. 1943, 139 F.2d 239, 242), the declaratory remedy should be construed with liberality in the patent field as in general. Dewey & Almy Chemical Co. v. American Anode, Inc., 3 Cir., 1943, 137 F.2d 68, cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454; Treemond Co. v. Schering Corp., 3 Cir., 1941, 122 F.2d 702. All this"
},
{
"docid": "7921464",
"title": "",
"text": "reverse this order and remand with directions to reopen the pleadings so as again to permit plaintiffs to proceed with their complaint, if so advised. The existence of an actual controversy in the constitutional sense is of course necessary to sustain jurisdiction under the Declaratory Judgment Act, 28 U.S.C. § 2201. Dr. Beck & Co., G. M. B. H. v. General Electric Co., 317 F.2d 538 (2 Cir. 1963). The difference between definite, concrete and substantial controversies which are justiciable, and hypothetical, abstract, or academic ones which are not justiciable, is one of degree, to be determined on a case by case basis. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-241, 57 S.Ct. 461, 81 L.Ed. 617 (1937); Wembley, Inc. v. Superba Cravats, Inc., 315 F.2d 87, 89 (2 Cir. 1963). .In patent cases of this kind, it is clear ’that a justiciable controversy is present if defendant, the patentee, has charged plaintiff with infringement, or has threatened plaintiff with an infringement suit, either directly or indirectly. Dr. Beck & Co. G. M. B. H. v. General Electric Co., supra; Technical Tape Corp. v. Minnesota Mining & Mfg. Co., 200 F.2d 876 (2 Cir. 1952). Professor Moore states that the requirement that there has been a “charge of infringement” has been given a very liberal interpretation. 6A Moore’s Federal Practice ¶ 57.20 at 3119 (2d ed. 1966). The cases substantiate his view. An infringement suit against one of plaintiff’s licensees, Joseph Bancroft & Sons Co. v. Spunize Co. of America, 268 F.2d 522 (2 Cir. 1959) or against another manufacturer -of a similar product, Dewey & Almy Chemical Co. v. American Anode, Inc., 137 F.2d 68 (3 Cir.), cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454 (1943), a notice in a trade journal, Rhodes Pharmacal Co., Inc. v. Dolein Corp., 91 F.Supp. 87 (S.D.N.Y.1950), and circumspect language contained in a letter, Simmonds Aerocessories, Ltd. v. Elastic Stop Nut Corp. of America, 257 F.2d 485 (3"
}
]
|
674670 | held constitutional as a legitimate exercise of the state’s police power.” Azul Pacifico, Inc. v. City of Los Angeles, 740 F.Supp. 772, 781 (C.D.Cal.1990). Ordinance 90-95, however, does not rationally further the goal of reducing the cost of leasehold housing for the people of Hawaii while providing a fair return for lessors. d. Just Compensation When there is a taking, the fifth amendment mandates payment of the value of the property taken. United States v. 15.65 Acres of Land, 689 F.2d 1329, 1331 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983); United States v. 729.773 Acres of Land, 531 F.Supp. 967, 974 (D.Haw.1982). “Just compensation” means the full monetary equivalent of the property taken. REDACTED Compensation must equal the fair market value of the owner’s leased fee interest. Midkiff, 467 U.S. at 234 n. 2, 104 S.Ct. at 2325 n. 2. The just compensation clause is designed not to limit governmental interference of property rights per se, but rather to secure compensation in the event of an otherwise proper interference amounting to a taking. First English Evangelical Lutheran Church, 482 U.S. at 315, 107 S.Ct. at 2385-86. A desire to promote public policy does not constitute justification for a state taking private property without compensation. Sotomura v. Hawaii County, 460 F.Supp. 473, 481 (D.Haw.1978). If a court finds that an ordinance effects a taking, that the legislature’s purposes are | [
{
"docid": "22080577",
"title": "",
"text": "have been submitted to the jury at all. There being a conflict between the circuits on this question, we granted certiorari to consider a recurring problem of importance in federal condemnation proceedings. 396 U. S. 814. The Fifth Amendment provides that private property shall not be taken for public use without just compensa tion. And “just compensation” means the full monetary-equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken. In enforcing the constitutional mandate, the Court at an early date adopted the concept of market value: the owner is entitled to the fair market value of the property at the time of the taking. But this basic measurement of compensation has been hedged with certain refinements developed over the years in the interest of effectuating the constitutional guarantee. It is one of these refinements that is in controversy here. The Court early recognized that the “market value” of property condemned can be affected, adversely or favorably, by the imminence of the very public project that makes the condemnation necessary. And it was perceived that to permit compensation to be either reduced or increased because of an alteration in market value attributable to the project itself would not lead to the “just compensation” that the Constitution requires. On the other hand, the development of a public project may also lead to enhancement in the market value of neighboring land that is not covered by the project itself. And if that land is later condemned, whether for an extension of the existing project or for some other public purpose, the general rule of just compensation requires that such enhancement in value be wholly taken into account, since fair market value is generally to be determined with due consideration of all available economic uses of the property at the time of the taking. In United States v. Miller, 317 U. S. 369, the Court gave full articulation to these principles: “If a distinct tract is condemned, in whole or in part, other lands in"
}
]
| [
{
"docid": "22387974",
"title": "",
"text": "The Commission noted that “[i]nevitably, interim trail use will conflict with the reversionary rights of adjacent land owners, but that is the very purpose of the Trails Act.” State of Vermont & Vermont Railway, Inc. — Discontinuance of Service Exemption in Chittenden County, 3 I. C. C. 2d 903, 908. Petitioners sought review of the ICC’s order in the Court of Appeals for the Second Circuit, arguing that § 8(d) of the Trails Act is unconstitutional on its face because it takes private property without just compensation and because it is not a valid exercise of Congress’ Commerce Clause power. The Court of Appeals rejected both arguments. 853 F. 2d 145 (1988). It reasoned that the ICC has “plenary and exclusive authority” over abandonments, id., at 151, and that federal law must be considered in determining the property right held by petitioners. “For as long as it determines that the land will serve a ‘railroad purpose,’ the ICC retains jurisdiction over railroad rights-of-way; it does not matter whether that purpose is immediate or in the future.” Ibid. Because the court believed that no reversionary interest could vest until the ICC determined that abandonment was appropriate, the court concluded that the Trails Act did not result in a taking. Next, the court found that the Trails Act was reasonably adapted to two legitimate congressional purposes under the Commerce Clause: “preserving rail corridors for future railroad use” and “permitting public recreational use of trails.” Id., at 150. The Court of Appeals therefore dismissed petitioners’ Commerce Clause challenge. We granted certiorari. 490 U. S. 1034 (1989). II The Fifth Amendment provides in relevant part that “private property [shall not] be taken for public use, without just compensation.” The Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987). It is designed “not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting"
},
{
"docid": "22387975",
"title": "",
"text": "future.” Ibid. Because the court believed that no reversionary interest could vest until the ICC determined that abandonment was appropriate, the court concluded that the Trails Act did not result in a taking. Next, the court found that the Trails Act was reasonably adapted to two legitimate congressional purposes under the Commerce Clause: “preserving rail corridors for future railroad use” and “permitting public recreational use of trails.” Id., at 150. The Court of Appeals therefore dismissed petitioners’ Commerce Clause challenge. We granted certiorari. 490 U. S. 1034 (1989). II The Fifth Amendment provides in relevant part that “private property [shall not] be taken for public use, without just compensation.” The Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987). It is designed “not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id., at 315 (emphasis in original). Furthermore, the Fifth Amendment does not require that just compensation be paid in advance of or even contemporaneously with the taking. See Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172, 194 (1985). All that is required is the existence of a “ ‘reasonable, certain and adequate provision for obtaining compensation’ ” at the time of the taking. Regional Rail Reorganization Act Cases, 419 U. S. 102, 124-125 (1974) (quoting Cherokee Nation v. Southern Kansas R. Co., 135 U. S. 641, 659 (1890)). “If the government has provided an adequate process for obtaining compensation, and if resort to that process ‘yield[s] just compensation,’ then the property owner ‘has no claim against the Government’ for a taking.” Williamson County Regional Planning Comm’n, supra, at 194-195 (quoting Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1013, 1018, n. 21 (1984)). For this reason, “taking claims against the Federal Government are premature until the property owner has availed itself of the process provided"
},
{
"docid": "4978150",
"title": "",
"text": "emphasized the substantial deference which should be accorded to the relevant legislative body in the area of public use. 467 U.S. at 239-43, 104 S.Ct. at 2328-31. In the present case, the City Council determined that ownership of land beneath residential condominium projects is concentrated in the hands of owners who have refused to sell proportionate shares in their fee simple titles to lessees residing in the condominium units. Ord. 91-95 § 1. Thus, the City Council’s primary concern was apparently the inability of the owners of leasehold condominiums to purchase proportionate shares of the underlying fee simple title. While the current concentration of land ownership with respect to leasehold condominiums may not be as drastic as the land oligopoly which prompted the Land Reform Act, this contention does not undermine the City’s determination that permitting leasehold condominium owners to purchase the underlying property serves a legitimate public purpose. Bishop Estate also argues that Ordinance 91-95 fails to provide lessors with just compensation. It claims that they are entitled to severance damages for the partial condemnation of their leased land. It also contends that Ordinance 91-95 fails .to exclude the effects that Ordinance 91-96 has on the valuation of the leased fees. Bishop Estate’s argument regarding just compensation is untenable. As section 5.3 of Ordinance 91-95 provides for payment of compensation equivalent to “the current fair market value of the leased fee interest,” the ordinance clearly comports with the constitutional requirements for just compensation. See United States v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12 (1970). Any arguments as to the proper manner of calculating current fair market value and the appropriate factors to be considered are premature in this facial challenge at this point in time. Southern Pacific v. City of Los Angeles, 922 F.2d 498, 505-07 (9th Cir.1990) (facial takings challenge alleging denial of just compensation is not ripe unless the plaintiff has sought compensation through the available procedures), cert. denied, — U.S. -, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991); see also Richardson I, 759 F.Supp. at 1481. The City Department of"
},
{
"docid": "22398897",
"title": "",
"text": "evicting dealers through excessive rents, the court found no evidence that Chevron or any other oil company would attempt to charge such rents in the absence of the cap. Id., at 1191. Finally, the court concluded that Act 257 would in fact decrease the number of lessee-dealer stations because the rent cap would discourage oil companies from building such stations. Id., at 1191-1192. Based on these findings, the District Court held that “Act 257 effected] an unconstitutional regulatory taking given its failure to substantially advance any legitimate state interest.” Id., at 1193. The Ninth Circuit affirmed, holding that its decision in the prior appeal barred Hawaii from challenging the application of the “substantially advances” test to Chevron’s takings claim or from arguing for a more deferential standard of review. 363 F. 3d 846, 849-855 (2004). The panel majority went on to reject Hawaii’s challenge to the application of the standard to the facts of the case. Id., at 855-858. Judge Fletcher dissented, renewing his contention that Act 257 should not be reviewed under the “substantially advances” standard. Id., at 859-861. We granted certiorari, 543 U. S. 924 (2004), and now reverse. II A The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), provides that private property shall not “be taken for public use, without just compensation.” As its text makes plain, the Takings Clause “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987). In other words, it “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id., at 315 (emphasis in original). While scholars have offered various justifications for this regime, we have emphasized its role in “bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness"
},
{
"docid": "22118646",
"title": "",
"text": "of this silence is to dump the case into the due process clause. The taking would then be a deprivation of property without due process of law. The victim could bring suit under section 1983 against the governmental officials who took or are threatening to take his property, seeking an injunction against the taking (or an order to return the property if, it has been taken already — subject to whatever defense the Eleventh Amendment might afford against such a remedy) or full tort damages, not just market value. There are two objections to this approach. First, the takings clause may be broad enough to take care of the problem without the help of the due process clause. The Supreme Court may believe that the takings clause, of its own force, forbids any governmental taking not for a public use, even if just compensation is tendered. There is language to this effect in a number of opinions, see, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 2329, 81 L.Ed.2d 186 (1984), though it may be inadvertent, and there is language in some cases that looks the other way — or both ways, compare First English Evangelical Lutheran Church v. County of Los Angeles, — U.S. —, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250 (1987), with id. 107 S.Ct. at 2386 (takings clause requires compensation “in the event of otherwise proper interference amounting to a taking”). In Midkiff the Court cited, as an example of a case where it had “invalidated a compensated taking of property for lack of a justifying public purpose,” 467 U.S. at 241, 104 S.Ct. at 2329, a case (Missouri Pac. Ry. v. Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896)) where in fact the Court, after finding there was no public use, had held that the state had denied the owner due process of law. In other words, once the privilege created by the takings clause was stripped away, the state was exposed as having taken a person’s property without due process of law. But this"
},
{
"docid": "21296402",
"title": "",
"text": "U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982); Hendler v. United States, 952 F.2d 1364 (Fed.Cir.1991). Logically, the amount of just compensation should be proportional to the value of the interest taken as compared to the total value of the property, up to and including total deprivation, whether the taking is by physical occupation for the public to use as a park, or by regulatory imposition to preserve the property as a wetland so that it may be used by the public for ground water recharge and other ecological purposes. The felt need for some kind of a special rule in regulatory takings cases may stem from the difficult line that has to be drawn between a partial regulatory taking and the mere ‘diminution in value’ that often accompanies otherwise valid regulatory impositions. As expressed by Justice Holmes in Pennsylvania Coal, “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone.” Id., 260 U.S. at 413, 43 S.Ct. at 159. Gone as well, it is almost superfluous to add, would be the constraints imposed on the Government by the takings clause. One way to avoid this linedrawing problem would be to declare that no regulatory taking is compensable under the Fifth Amendment; the only available remedy for a regulation that goes ‘too far’ is invalidation of the impo sition. That was the historie practice in the courts for much of the twentieth century, but the Supreme Court definitively rejected that practice in First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). The Fifth Amendment “is designed ‘not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.’” Preseault v. ICC,"
},
{
"docid": "22118647",
"title": "",
"text": "(1984), though it may be inadvertent, and there is language in some cases that looks the other way — or both ways, compare First English Evangelical Lutheran Church v. County of Los Angeles, — U.S. —, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250 (1987), with id. 107 S.Ct. at 2386 (takings clause requires compensation “in the event of otherwise proper interference amounting to a taking”). In Midkiff the Court cited, as an example of a case where it had “invalidated a compensated taking of property for lack of a justifying public purpose,” 467 U.S. at 241, 104 S.Ct. at 2329, a case (Missouri Pac. Ry. v. Nebraska, 164 U.S. 403, 417, 17 S.Ct. 130, 135, 41 L.Ed. 489 (1896)) where in fact the Court, after finding there was no public use, had held that the state had denied the owner due process of law. In other words, once the privilege created by the takings clause was stripped away, the state was exposed as having taken a person’s property without due process of law. But this was before the takings clause had been held applicable to the states (via the due process clause of the Fourteenth Amendment) in Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226, 236, 17 S.Ct. 581, 584, 41 L.Ed. 979 (1897) — though only a year before. It seems odd that the takings clause would require just compensation when property was taken for a public use yet grant no remedy when the property was taken for a private use, although the semantics of the clause are consistent with such an interpretation, as we have seen. Yet well after the takings clause was deemed absorbed into the due process clause of the Fourteenth Amendment, the Supreme Court reviewed a zoning ordinance for conformity to substantive due process. See Euclid v. Ambler Realty Co., 272 U.S. 865, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Justice Stevens has said that the Court in Euclid “fused the two express constitutional restrictions on any state interference with private property — that property shall not be taken without due"
},
{
"docid": "23280868",
"title": "",
"text": "the exercise of that power.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250 (1987). It is designed “not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id. at 315, 107 S.Ct. at 2385-86 (emphasis in original). Furthermore, it does not require that just compensation be paid in advance of or even contemporaneously with the taking, see Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985); rather, all that is required is the existence of a “ ‘reasonable, certain and adequate provision for obtaining compensation’ ” at the time of the taking. Blanchette v. Connecticut General Insurance Corp., 419 U.S. 102, 125, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974) (quoting Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890)). Thus, “if the government has provided an adequate process for obtaining compensation, and if resort to that process ‘yield[s] just compensation,’ then the property owner ‘has no claim against the Government’ for a taking.” Williamson County, 473 U.S. at 194-95, 105 S.Ct. at 3121 (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018 n. 21, 104 S.Ct. 2862, 2878, 2881 n. 21, 81 L.Ed.2d 815 (1984)). We set forth the factors to be considered in determining whether state action constitutes a taking without just compensation in Keystone Bituminous Coal Ass’n v. Duncan, 771 F.2d 707, 715 (3d Cir.1985), aff'd, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). A “taking may more readily be found when the interference with property can be characterized as a physical invasion by government ... than when the interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” 771 F.2d at 712 (quoting Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631"
},
{
"docid": "21456824",
"title": "",
"text": "United States, 851 F.2d 1404, 1407 (Fed.Cir.1988) (citation omitted). “[I]n reviewing the grant of a judgment for the defendant on the pleadings, we must assume each well-pled factual allegation to be true and indulge in all reasonable inferences in favor of the nonmovant.” Id. This same standard of review applies where a case is dismissed because the complaint fails to state a claim upon which relief could be granted. See Selva & Sons, Inc. v. Nina Footwear, Inc., 705 F.2d 1316, 1320-22 (Fed.Cir.1983). II. The Fifth Amendment provides, in part pertinent to this appeal: “nor shall private property be taken for public use, without just compensation.” U.S. Const. Amend. V. The Supreme Court has noted that the language of the Fifth Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250 (1987). “[T]he Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id. at 2386 (emphasis in original). Furthermore, the Amendment is also designed “ ‘to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123, 98 S.Ct. 2646, 2658, 57 L.Ed.2d 631 (1978) (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (1960)). The Supreme Court has also made clear that there is no “ ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central, 438 U.S. at 124, 98 S.Ct. at 2659 (citation omitted). As a result, “[ojrdinarily [courts] must engage in ‘essentially ad hoc, factual inquiries.’ ” Loretto v. Teleprompter Manhattan CATV Corp., 458"
},
{
"docid": "11553476",
"title": "",
"text": "in awarding just compensation requires equal treatment between those holding property for value and those holding property for use. Conclusion Although the takings clause is not designed to limit governmental interference with property rights per se, it does mandate compensation when otherwise socially desirable interferences amount to a taking. See First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). The basic question is upon whom the loss of socially desirable regulations should fall. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). A determination that governmental action constitutes a taking, is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest. Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Florida Rock v. United States, 18 F.3d 1560, 1570-71 (Fed.Cir.1994) (The proper question is “[H]as the Government acted in a responsible way, limiting the constraints on property ownership to those necessary to achieve the public purpose, and not allocating to some number of individuals, less than all, a burden that should be borne by all?”). When, as in this case, a single owner of real property has been called upon to sacrifice all economically beneficial use of his land, in this case his future homestead, in the name of the common good he has suffered a taking. Lucas v. South Carolina Coastal Council, 505 U.S. at-, 112 S.Ct. at 2895. However, even assuming arguendo Bowles’ sacrifice here is less than total, the court finds his reasonable investment-backed expectations have been substantially frustrated so that compensation is required under the fifth amendment. The court awards the plaintiff just compensation of $55,000.00 plus interest compounded annually from the date of taking, October 26, 1984. The parties shall within sixty days prepare a stipulation as to the amount of interest, attorneys fees, and costs due. Plaintiff will tender the deed to Lot 29 upon the satisfaction of the judgment. The entry of"
},
{
"docid": "1543670",
"title": "",
"text": "to a substantive limit on government action. As the Supreme Court has expressly recognized, the takings clause is not designed to “limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 315, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). This Circuit, too, has recognized that the clause does not prevent a government from appropriating private property. Bay View, Inc. v. AHTNA, Inc., 105 F.3d 1281, 1284 (9th Cir.1997); Macri v. King County, 126 F.3d 1125, 1129 (9th Cir.1997). The clause is only offended when it takes private property for a public purpose without paying just compensation. Bay View, 105 F.3d at 1284-85; Macri v. King County, 126 F.3d at 1129; see also Rose Acre Farms, Inc. v. Madigan, 956 F.2d 670, 673 (7th Cir.1992) (“[T]he takings clause does not forbid takings; it requires compensation for takings.”). Moreover, this Circuit has recognized that, while “a takings violation is not complete until the plaintiff has sought compensation through slate remedies and been denied,” that “a substantive due process violation is complete as soon as the government action occurs.” Macri, 126 F.3d at 1129. In short, I believe that appellants are attempting to confer on their substantive due process claim a special status by characterizing it as a Fifth Amendment just compensation claim. Allow me to explain further. In light of the remedial nature of the just compensation clause, takings principles cannot logically apply to a case where, as here, the property owners challenge a government action not on the grounds that the government has denied them just compensation, but on the grounds that the government has acted ultra vires by enacting legislation that is inherently wrongful and unfair. Appellants do not seek, nor can they seek, just compensation for government interference which, in the words of First English, is “otherwise proper.” In fact, appellants’ prayer for relief, which seeks a declaration of invalidity, an injunction, and a refund of monies paid, omits any mention of"
},
{
"docid": "23280867",
"title": "",
"text": "violated.” Id. § 4739. According to L & I’s Chief of License Issuance, L & I had several unwritten policies governing dance hall licenses. In 1988, it would not accept a dance hall license application until the applicant had a certificate of occupancy. L & I referred applications to other City departments for a fire inspection, a tax confirmation, and police department approval. The police department checked to determine whether the operator had a criminal record, performed a survey to determine whether neighborhood opposition existed in the surrounding community, and made a recommendation to L & I whether to grant the dance hall license. According to the Chief of License Issuance, L & I had a 30-year old policy to adopt the recommendation of the police department upon completion of its investigation. B. TAKING WITHOUT JUST COMPENSATION The Fifth Amendment, applicable here through the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” It “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314, 107 S.Ct. 2378, 2385, 96 L.Ed.2d 250 (1987). It is designed “not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id. at 315, 107 S.Ct. at 2385-86 (emphasis in original). Furthermore, it does not require that just compensation be paid in advance of or even contemporaneously with the taking, see Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 194, 105 S.Ct. 3108, 3120, 87 L.Ed.2d 126 (1985); rather, all that is required is the existence of a “ ‘reasonable, certain and adequate provision for obtaining compensation’ ” at the time of the taking. Blanchette v. Connecticut General Insurance Corp., 419 U.S. 102, 125, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974) (quoting Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890)). Thus, “if the government"
},
{
"docid": "1543669",
"title": "",
"text": "Judge, concurring. I concur in the result but wish to set forth my reasoning separately. I The Tenant Relocation Assistance Ordinance (“TRAO”) and its enabling legislation, ROW 59.18.440, like thousands of other ordinances and statutes imposing fees and penalties, call for the payment of money, not the dedication of “property” for which just compensation can logically be paid. The lack of a just compensation remedy should activate the jurisprudential alarms and warn us that appellants’ claim falls not within the confines of the Fifth Amendment, which prevents governments from taking property without just compensation, but within the scope of the Fourteenth Amendment, which prevents states from taking property without due process of law. The just compensation clause of the Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” The plain language of this clause guarantees property owners a monetary remedy in the event the government wishes to use their property for some public purpose. With the exception of the public purpose requirement, the clause omits any language relating to a substantive limit on government action. As the Supreme Court has expressly recognized, the takings clause is not designed to “limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 315, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). This Circuit, too, has recognized that the clause does not prevent a government from appropriating private property. Bay View, Inc. v. AHTNA, Inc., 105 F.3d 1281, 1284 (9th Cir.1997); Macri v. King County, 126 F.3d 1125, 1129 (9th Cir.1997). The clause is only offended when it takes private property for a public purpose without paying just compensation. Bay View, 105 F.3d at 1284-85; Macri v. King County, 126 F.3d at 1129; see also Rose Acre Farms, Inc. v. Madigan, 956 F.2d 670, 673 (7th Cir.1992) (“[T]he takings clause does not forbid takings; it requires compensation for takings.”). Moreover, this Circuit has recognized that, while “a takings violation is not"
},
{
"docid": "19182419",
"title": "",
"text": "the co-owner; and requiring distribution of sale proceeds “according to the interests of such spouse or co-owners, and of the estate.” See R. Eisenberg and F. Gecker, Due Process and Bankruptcy: A Contradiction in Terns?, 10 Banicr.Dev.J. 47, 80 n. 231 (1993— 94) (“[Section] 363(h), (i) and (j) do meet constitutional challenges. There are more than adequate protections for third parties.”); In re Townsend, 72 B.R. 960, 967 (Bankr.W.D.Mo.1987) (“The due process issues raised by debtor were addressed by Congress when the Code was drafted.”). 2. If there is a “taking, ” is it for a public purpose? The Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, supra, 482 U.S. at 315, 107 S.Ct. at 2385 (emphasis in original). Assuming arguendo that a taking would result if the plaintiff is permitted to consummate a sale under § 363(h), it still would be permis sible so long as the taking is for a public purpose, it being noted that the defendant does not challenge that just compensation would be paid. See supra, p. 981. “[0]ne person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.” Thompson v. Consol. Gas Utils. Corp., 300 U.S. 55, 80, 57 S.Ct. 364, 376, 81 L.Ed. 510 (1937). Although I have concluded that a sale by the trustee under § 363(h) would not be a taking, I conclude in the alternative that even if it were, it would be permitted as a taking for a public purpose. The seminal case defining the scope of the public use requirement is Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984), in which the Supreme Court upheld a Hawaii land reform act that transferred fee title from a small number of feudal owners to the tenants of the land. The “public use” requirement is"
},
{
"docid": "18604699",
"title": "",
"text": "cases involving claims of inverse condemnation. Sinaloa Lake Owners Ass’n v. City of Simi Valley, 864 F.2d 1475, 1478 (9th Cir.1989) (citing Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1988)). Whether Moore’s Complaint States a Claim For Compensation [3] The fifth amendment guarantees that private property shall not “be taken for public use without just compensation.” Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). It is established doctrine that “ ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ ” First Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304, 316, 107 S.Ct. 2378, 2386, 96 L.Ed.2d 250 (1987) (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922)). A taking may be found without any physical invasion where “ ‘a public entity acting in furtherance of a public project directly and substantially interferes with property rights and thereby significantly impairs the value of property....’” Martino v. Santa Clara Water Dist., 703 F.2d 1141, 1147 (9th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983) (quoting Richmond Elks’ Hall Ass’n v. Richmond Redevelopment Agency, 561 F.2d 1327, 1330 (9th Cir.1977)). The application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests, or denies an owner the economically viable use of his land. Agins, 447 U.S. at 260, 100 S.Ct. at 2141 (citations omitted). The governmental action that results in a taking of property necessarily implicates the “ ‘constitutional obligation to pay just compensation.’ ” First Evangelical, 482 U.S. at 315, 107 S.Ct. at 2386 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554 (I960)). The Supreme Court recently has held that compensation must be paid for the temporary regulatory taking of all of a person’s property, until the time the regulation is invalidated by"
},
{
"docid": "11553475",
"title": "",
"text": "expectations generated by the patent. The taking in an infringement action always impacts on a established or potential commercial exploitation of a patent if the patent holder either has commercialized the patent or is in the business of commercializing a similar product or process as that called for by the patent. This may not be true in takings of land. ITT Corp., 17 Cl.Ct. at 240 (emphasis added). The court here cannot find any principled reason for awarding compound interest only in eases where the plaintiff intended a commercial use for the property taken. Such a rule would lead to odd results. For example, if Bowles intended to use his home on Lot 29 as rental property he would be entitled to compound interest, whereas, if he actually intended to live there he would not. Such a rule ignores the economic reality that for many middle class Americans the homestead is their primary economic investment. Moreover, a free market based on consumer sovereignty does not discriminate between profit seekers and consumers. In sum, fundamental fairness in awarding just compensation requires equal treatment between those holding property for value and those holding property for use. Conclusion Although the takings clause is not designed to limit governmental interference with property rights per se, it does mandate compensation when otherwise socially desirable interferences amount to a taking. See First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). The basic question is upon whom the loss of socially desirable regulations should fall. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922). A determination that governmental action constitutes a taking, is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest. Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Florida Rock v. United States, 18 F.3d 1560, 1570-71 (Fed.Cir.1994) (The proper question is “[H]as the Government acted in a responsible way, limiting the"
},
{
"docid": "4367863",
"title": "",
"text": "these elements have been satisfied. The Fifth Amendment states that, “private property [shall not] be taken for public use without just compensation.” The Takings Clause is not meant to limit the government’s ability to interfere with an individual’s property rights, but rather to ensure compensation when a legitimate interference that amounts to a taking occurs. Glosemeyer v. Missouri-Kansas-Texas Railroad, 879 F.2d 316, 324 (8th Cir.1989) (quoting First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987)). The compensation does not have to precede the taking; a process for obtaining compensation simply has to exist at the time of the taking. Id. (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)). If U.S. West ultimately receives just compensation then there has been no violation of the Takings Clause. Public utilities, which have a hybrid public and private status, must be analyzed in a slightly different manner than other entities under the Takings Clause. Duquesne Light Co. v. Barasch, 488 U.S. 299, 307, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989). The guiding principle has been that the Constitution protects utilities from being limited to a charge for their property serving the public which is so “unjust” as to be confiscatory. Covington & Lexington Turnpike Road Co. v. Sandford, 164 U.S. 578, 597, 17 S.Ct. 198, 205-206, 41 L.Ed. 560 (1896) (A rate is too low if its is “so unjust as to destroy the value of [the] property for all the purposes for which it was acquired,” and in so doing “practically deprive[s] the owner of property without due process of law”); FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 742, 86 L.Ed. 1037 (1942) (“By long standing usage in the field of rate regulation, the ‘lowest reasonable rate’ is one which is not confiscatory in the constitutional sense”); FPC v. Texaco Inc., 417 U.S. 380, 391-392, 94 S.Ct. 2315, 2323, 41 L.Ed.2d 141 (1974) (“All that is protected against, in a constitutional sense, is that the rates fixed by"
},
{
"docid": "18121379",
"title": "",
"text": "$5,555.40. The total rent for the taking period would have amounted to $580,-555.40. Id. at 7 (emphasis in original, footnote omitted). The court previously had refused to reconsider an earlier decision, made when the court had erroneously held that the taking was permanent, that Placer had no standing to participate in the case. It stated: “The Joint Venture Agreement of October 15, 1979, between Placer and Yuba fully defines Placer's property rights in the event of a taking. Since the language of the agreement clearly terminates Placer’s mineral rights to the extent of a taking, during the temporary taking period, Placer did not have a compensable property interest in the minerals.” Yuba Natural Resources, Inc. v. United States, No. 460-80L, slip op. at 18-19 (Cl.Ct. Feb. 28, 1989). II A. Normally, the proper measure of just compensation for the government’s permanent taking of private property is “the fair market value of [the] property at the time of the taking.” See, e.g., Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 474, 473-74, 93 S.Ct. 791, 794, 794-95, 35 L.Ed.2d 1 (1973). In the case of a temporary taking, however, since the property is returned to the owner when the taking ends, the just compensation to which the owner is entitled is the value of the use of the property during the temporary taking, i.e., the amount which the owner lost as a result of the taking. First English Evangelical Lutheran Church v. Los Angeles, 482 U.S. 304, 319, 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987) (“Where this burden results from governmental action that amounted to a [temporary] taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period.”). The usual measure of just compensation for a temporary taking, therefore, is the fair rental value of the property for the period of the taking. See, e.g., Kimball Laundry Co. v. United States, 338 U.S. 1, 7, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765 (1949) (“[T]he proper measure of compensation [in"
},
{
"docid": "23096322",
"title": "",
"text": "889 F.2d at 16 (“It is only when ... conclusions are logically compelled, or at least supported, by the stated facts, that is, when the suggested inference rises to what experience indicates is an acceptable level of probability, that ‘conclusions’ become ‘facts’ for plead ing purposes.”). Having never sought a removal permit, the trustees’ takings claims are premature. D. Resort to State Procedures. There is a further reason why the takings claims of both groups of plaintiffs are not velivolant: they have not sought compensation through the procedures Massachusetts has provided for that purpose. The fifth amendment provides in pertinent part that “private property shall not be taken for public use, without just compensation.” This provision “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 2385-86, 96 L.Ed.2d 250 (1987) (hereinafter, “First Lutheran ”). For that reason, so long as the State provides an adequate process for obtaining compensation, and resort to that process holds out some realistic promise of yielding just compensation, an owner of property has no cognizable claim against the State in respect to an alleged confiscation. See Williamson, 473 U.S. at 194-97, 105 S.Ct. at 3120-22; Ochoa, 815 F.2d at 817; Culebras Enterprises Corp. v. Rios, 813 F.2d 506, 514-15 (1st Cir.1987). As the Williamson Court explained: ... because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a § 1983 action. Williamson, 473 U.S. at 194 n. 13, 105 S.Ct. at 3120 n. 13. Appellants argue that this requirement does not apply to them because they are seeking declaratory relief, not money damages. They also contend that, since Massachusetts does not provide an adequate process for obtaining just compensation in the circumstances of this case, their claims are ripe. Neither"
},
{
"docid": "22398898",
"title": "",
"text": "advances” standard. Id., at 859-861. We granted certiorari, 543 U. S. 924 (2004), and now reverse. II A The Takings Clause of the Fifth Amendment, made applicable to the States through the Fourteenth, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), provides that private property shall not “be taken for public use, without just compensation.” As its text makes plain, the Takings Clause “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987). In other words, it “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.” Id., at 315 (emphasis in original). While scholars have offered various justifications for this regime, we have emphasized its role in “bar[ring] Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960); see also Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 (1893). The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property. See, e. g., United States v. Pewee Coal Co., 341 U. S. 114 (1951) (Government’s seizure and operation of a coal mine to prevent a national strike of coal miners effected a taking); United States v. General Motors Corp., 323 U. S. 373 (1945) (Government’s occupation of private warehouse effected a taking). Indeed, until the Court’s watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, or the functional equivalent of a ‘practical ouster of [the owner’s] possession.’” Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (citations omitted and emphasis added; brackets in original); see also id., at 1028, n. 15"
}
]
|
252637 | an authorization order are lacking.” United States v. Campagnuolo, 556 F.2d 1209,1214 (5th Cir.1977). See also United States v. Vento, 533 F.2d at 855. We discern no subterfuge here. As explained above, the similarity between section 1955 and section 1084 offenses makes it difficult to determine whether a particular gambling related conversation is more appropriately proof of the violation of one statutory provision rather than another. We find that the application for authorization to use the intercepts to demonstrate section 1955 violations was sought in good faith. The application procedure is also important. Here, the intercepts were disclosed to a grand jury prior to indictment. This is significantly different, than the procedure followed in a case on which appellant relies, REDACTED Brodson concerned an authorization for intercepts showing violations of section 1955. The application for section 1084 use was filed just prior to trial. The government had disclosed the intercepts allegedly showing violation of section 1084 to a grand jury without judicial authorization. The Seventh Circuit dismissed the indictment because “the Government itself has violated the key provision of the legislative scheme of Section 2517(5).” Id. at 216. There was no such violation here. The mandate of section 2517(5) was observed. KACHOUGIAN Kachougian entered into essentially the same stipulation of facts with the government as did Brian. He was also found guilty by the court of violating 18 U.S.C. § 1955. Other than the Franks’ hearing issue, the only issue raised by | [
{
"docid": "17708046",
"title": "",
"text": "CLARK, Associate Justice. This appeal questions the validity of the dismissal of Appellee-Brodson’s indictment as the appropriate remedy for the Government’s violation in this case of one of the wiretap provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2517(5). Section 2517(5) restricts the use of intercepted wire or oral communications concerning criminal activities not specified by the order of authorization or approval for the original wiretap. Unless a judge of competent jurisdiction finds upon timely and appropriate application by the Government, that the contents of the communications were otherwise intercepted in accordance with the wiretap statutes, the intercepted communications may not be used or disclosed. The appellee, Sidney A. Brodson, and others not involved here, were charged with the transmission of wagers and wagering information in interstate commerce in violation of 18 U.S.C. § 1084. The evidence for that indictment was obtained through the interception of telephone conversations under an order that only authorized interceptions covering violations of 18 U.S.C. § 1955. Section 1955 prohibits the operation of an illegal gambling business in interstate commerce. The Government’s application under § 2517(5) was not filed in this case until March 3, 1975, just prior to trial and some eight months after the indictment was returned by the Grand Jury that considered the intercepted conversations. The district court denied the application, deciding that it came too late in view of § 2517(5)’s requirement that such application be made “as soon as practicable”. Consequently the district court dismissed the indictment. On appeal, the Government contends that the identical intercepted conversations which related to the Section 1955 violations also related to the Section 1084 violations. Thus, in the Government’s view, it was not necessary to secure the court’s approval to divulge the Section 1084 conversations to the Grand Jury since they were appropriately intercepted under the Section 1955 authorization. Further, the Government contends that the indictment was sufficient on its face and that the only available remedy for any possible Section 2517(5) violation would be the suppression of the conversations when offered at the trial on the"
}
]
| [
{
"docid": "1528549",
"title": "",
"text": "Judge Port, as required by 18 U.S.C. § 2517(5), to the effect that the “contents were otherwise intercepted in accordance with the provisions” of the federal wiretap authorization laws and an approval by him of its use other than in relation to a § 1955 prosecution. Defendants argued that since the government failed to comply with the requirements of § 2517(5), exclusion of the conversation and dismissal of the indictment was mandated by § 2515, which prohibits the receipt by a grand jury or at trial of any intercepted communication disclosed in violation of the intercept laws, or any evidence derived therefrom. On November 9, 1976, Judge Port dismissed the indictment in a decision from the bench, relying on United States v. Brodson, 528 F.2d 214 (7th Cir. 1975), and our decision in United States v. Marion, 535 F.2d 697 (2d Cir. 1976). Although indicating that he would have decided the case differently if “writing on a clean slate,” Judge Port felt “obliged” to follow Marion’s reasoning that communications relating to crimes not set forth in the order of authorization, “whether or not they also relate to specified crimes,” 535 F.2d at 706, cannot be used as evidence of an unspecified offense unless judicial approval is obtained by the government through a timely subsequent application. Judge Port refused to find that his authorization to continue the wiretap after reading the Fifth Day Report complied with § 2517(5), since that report, although it disclosed the contents of the Akron-Binghamton conversation and that it was interstate in character, failed to mention that it would be evidence of a § 1084 offense as well as of the authorized § 1955 offense. From this order the government appeals. DISCUSSION In enacting § 2517(5) as part of the comprehensive wiretap provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2515, et seq., Congress sought to balance two conflicting principles. One is the necessity of protecting Fourth Amendment and privacy rights, which require scrupulous particularity as to the circumstances and reasons for an electronic search before permitting it to be"
},
{
"docid": "17708047",
"title": "",
"text": "an illegal gambling business in interstate commerce. The Government’s application under § 2517(5) was not filed in this case until March 3, 1975, just prior to trial and some eight months after the indictment was returned by the Grand Jury that considered the intercepted conversations. The district court denied the application, deciding that it came too late in view of § 2517(5)’s requirement that such application be made “as soon as practicable”. Consequently the district court dismissed the indictment. On appeal, the Government contends that the identical intercepted conversations which related to the Section 1955 violations also related to the Section 1084 violations. Thus, in the Government’s view, it was not necessary to secure the court’s approval to divulge the Section 1084 conversations to the Grand Jury since they were appropriately intercepted under the Section 1955 authorization. Further, the Government contends that the indictment was sufficient on its face and that the only available remedy for any possible Section 2517(5) violation would be the suppression of the conversations when offered at the trial on the merits. Finally, the Government claims that there was no Section 2517(5) violation because a grand jury hearing is not a proceeding within the meaning of Section 2517(5). On the record here, we find no merit in any of these contentions. By inserting Section 2517(5) into the Act, the Congress obviously intended to require that the Government submit the tape of its wiretaps to a neutral judge so that he might determine whether the interceptions were the inadvertent product of a legitimately obtained wiretap or the electronic equivalent of the type of illegal evidence formerly obtained under the supposed authorization of a “general search warrant.” Here, the Government’s claim, that the authorizations applicable to the Section 1955 violations were also relevant to Section 1084 violations, should have been tested by submitting them to a judge in accordance with the rationale of Section 2517(5). This the Government failed to do within the time requirement of “as soon as practicable” that the Section specifies. Moreover, without submitting to the requirements of Section 2517(5), the Government disclosed the intercepted"
},
{
"docid": "7407837",
"title": "",
"text": "Although the calls were made between states, there can be no question that the sharing of “line information” [the betting odds on sporting events] may be probative of a violation of section 1955. See United States v. Ceraso, 467 F.2d 653, 655 (3d Cir. 1972); United States v. Schaefer, 510 F.2d 1307, 1311-12 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975). After Aurillio’s testimony failed to establish sufficient evidence of a violation of section 1955, the prosecutor decided to seek an indictment for violations of 18 U.S.C. §§ 1084 and 1952. Those statutes make it a federal offense to use interstate facilities to conduct a gambling operation. Unlike section 1955, evidence of use of interstate facilities is an element of the offense under both section 1084 and 1952. United States v. Brouillette, 478 F.2d 1171, 1175 (5th Cir. 1973); United States v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974). Neither section 1084 nor section 1952 require a minimum number of participants in the offense. Thus, the evidence provided by the interstate conversations became relevant not for the purpose of showing the number of persons involved in the gambling operation, but to prove that the appellees used facilities in interstate commerce. Since the offenses for which the Government then sought an indictment were arguably different from those specified in the original wiretap authorization order, the prosecutor sought an order pursuant to section 2517(5) permitting disclosure of the conversations. The trial court entered the disclosure order on May 13,1975, after finding that the communications were intercepted in accordance with the provisions of Title III. On June 16, 1975 — some two months after Aurillio first appeared before the grand jury — the interstate conversations were disclosed to the same grand jury, which returned the indictment in this case on the same day. The case against appellees fell on the docket of a different federal judge, who granted defendants’ motion to suppress the conversations at trial and dismissed the indictment for the government’s failure to comply with section 2517(5) before Aurillio’s appearance on April"
},
{
"docid": "23255456",
"title": "",
"text": "business of betting or wagering.” Because of the similarity of the two statutory provisions appellant can claim no harm or unfair surprise from the monitoring of all of his gambling related telephone calls under a wiretap authorization specifying only section 1084 violations. This violation of section 2518(l)(b)(i)’s particularity requirement does not- warrant suppression of the wiretap evidence. The use of intercepted conversations containing evidence of section 1955 violations implicates section 2517(5) of the Act. This section was designed to cover a situation such as this in which “an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval.” It provides that such evidence may be used in any criminal proceeding “when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the-provisions of this chapter. Such application shall be made as soon as practicable.” Here, nineteen months passed between the recording of the implicating conversations and the application for their use as evidence. Appellant argues strenuously that the application could and should have been made long before it was, and that the nineteen-month delay constituted a per se violation of the “as soon as practicable” requirement of section 2517(5). The government explained the long hiatus by stating that the conversations’ relevance “has only become apparent upon a recent analysis of the results of the wire interceptions.” We recognize that 18 U.S.C. § 1955 and 18 U.S.C. § 1084, though similar, are different offenses and that a detailed study of the intercepts was necessary to determine which statute was being violated. Although nineteen months seems an inordinate amount of time for analyzing the intercepted conversations, we do not think that such a delay automatically triggers suppression. We note first that appellant has not alleged that the delay prejudiced him in any way. Although this is not determinative, it shifts our focus from the effect on the appellant to a"
},
{
"docid": "23255458",
"title": "",
"text": "consideration of whether the delay contravenes a basic policy requirement of the Act. See United States v. Donovan, 429 U.S. at 433-34, 97 S.Ct. at 670-671. “A determination of whether the order was obtained ‘as soon as practicable’ requires an examination of the purposes of section 2517(5).” United States v. Vento, 533 F.2d at 855. We find no reason to suppress the evidence of violations of section 1955 on either statutory or constitutional grounds. The conviction is affirmed. We agree with the Fifth Circuit that by enacting section 2517(5), “Congress wished to assure that the Government does not secure a wiretap authorization order to investigate one offense as a subterfuge to acquire evidence of a different offense for which the prerequisites to an authorization order are lacking.” United States v. Campagnuolo, 556 F.2d 1209,1214 (5th Cir.1977). See also United States v. Vento, 533 F.2d at 855. We discern no subterfuge here. As explained above, the similarity between section 1955 and section 1084 offenses makes it difficult to determine whether a particular gambling related conversation is more appropriately proof of the violation of one statutory provision rather than another. We find that the application for authorization to use the intercepts to demonstrate section 1955 violations was sought in good faith. The application procedure is also important. Here, the intercepts were disclosed to a grand jury prior to indictment. This is significantly different, than the procedure followed in a case on which appellant relies, United States v. Brodson, 528 F.2d 214 (7th Cir.1975). Brodson concerned an authorization for intercepts showing violations of section 1955. The application for section 1084 use was filed just prior to trial. The government had disclosed the intercepts allegedly showing violation of section 1084 to a grand jury without judicial authorization. The Seventh Circuit dismissed the indictment because “the Government itself has violated the key provision of the legislative scheme of Section 2517(5).” Id. at 216. There was no such violation here. The mandate of section 2517(5) was observed. KACHOUGIAN Kachougian entered into essentially the same stipulation of facts with the government as did Brian. He was also"
},
{
"docid": "18848394",
"title": "",
"text": "violations of 18 U.S.C. § 1955, which prohibits the operation of an illegal gambling business in interstate commerce. The Government filed an application under § 2517(5) just prior to trial and eight (8) months after the indictment was returned. The district court denied the application as untimely and dismissed the indictment. On appeal, the Seventh Circuit affirmed the dismissal, rejecting the Government’s argument that no authorization was required under § 2517(5). The Government had argued that the evidence secured under the § 1955 order related to and applied equally to the § 1084 prosecution, thus no § 2517(5) authorization was necessary. The Seventh Circuit disagreed, finding that the two offenses were separate and distinct, involved dissimilar elements, and required different evidence, even though there might be some overlap because both concerned illegal gambling. Brodson, supra, 528 F.2d at 216. In Marion, supra, the other case most heavily relied on by Defendant Harvey, the defendant had been indicted on one count of perjury (Count I) and two counts of obstruction of justice (Counts II and III). The indictment was the result of the defendant’s evasive and inconsistent testimony before a federal grand jury. The defendant was questioned before the grand jury (after a grant of immunity) on the basis of two conversations intercepted and recorded pursuant to a state court order authorizing the interceptions. The so-called “lounge order” (authorizing electronic surveillance of a telephone at an establishment called “Jimmy’s Lounge”) authorized interception of communications related to various state offenses, including grand larceny by extortion, felonious assault, and conspiracy to commit those crimes. The so-called “Delmonico Order” (authorizing electronic surveillance of a telephone at the Delmonico Hotel) authorized interception of communications relating, inter alia, to the state offense of possession of dangerous weapons. The federal grand jury in which the defendant testified was investigating possible federal offenses involving interference with interstate commerce by threats or violence, interstate travel and transportation in aid of racketeering, and transportation and transfer of an unregistered firearm through interstate commerce. The Government secured no formal or explicit approval or authorization order under § 2517(5) to use the"
},
{
"docid": "23255455",
"title": "",
"text": "within electronic earshot of conversations over certain telephones within certain time limitations. Like an officer who sees contraband in plain view from a vantage point where he has a right to be, one properly overhearing unexpected villainy need not ignore such evidence. United States v. Johnson, 539 F.2d 181, 188 (D.C.Cir.1976) (footnote omitted), cert. denied, 429 U.S. 1061, 97 S.Ct. 784, 50 L.Ed.2d 776 (1977). See also United States v. Vento, 533 F.2d 838, 853 (3d Cir.1976). The officers conducting the wiretap surveillance were fully justified in continuing to monitor those gambling conversations which provided evidence of section 1955 violations. The similarity between section 1955 and section 1084 offenses makes it highly probable that the same person will violate both statutes. Further, the same conversations will often show a violation of both statutes. Section 1955 subjects to fine and imprisonment “[w]ho-ever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business.” Section 1084 prohibits the use of interstate wire communication facilities for betting or wagering by one “engaged in the business of betting or wagering.” Because of the similarity of the two statutory provisions appellant can claim no harm or unfair surprise from the monitoring of all of his gambling related telephone calls under a wiretap authorization specifying only section 1084 violations. This violation of section 2518(l)(b)(i)’s particularity requirement does not- warrant suppression of the wiretap evidence. The use of intercepted conversations containing evidence of section 1955 violations implicates section 2517(5) of the Act. This section was designed to cover a situation such as this in which “an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval.” It provides that such evidence may be used in any criminal proceeding “when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the-provisions of this chapter. Such application shall be made as soon as"
},
{
"docid": "23255459",
"title": "",
"text": "more appropriately proof of the violation of one statutory provision rather than another. We find that the application for authorization to use the intercepts to demonstrate section 1955 violations was sought in good faith. The application procedure is also important. Here, the intercepts were disclosed to a grand jury prior to indictment. This is significantly different, than the procedure followed in a case on which appellant relies, United States v. Brodson, 528 F.2d 214 (7th Cir.1975). Brodson concerned an authorization for intercepts showing violations of section 1955. The application for section 1084 use was filed just prior to trial. The government had disclosed the intercepts allegedly showing violation of section 1084 to a grand jury without judicial authorization. The Seventh Circuit dismissed the indictment because “the Government itself has violated the key provision of the legislative scheme of Section 2517(5).” Id. at 216. There was no such violation here. The mandate of section 2517(5) was observed. KACHOUGIAN Kachougian entered into essentially the same stipulation of facts with the government as did Brian. He was also found guilty by the court of violating 18 U.S.C. § 1955. Other than the Franks’ hearing issue, the only issue raised by appellant is that under the stipulation of facts no crime was shown. Count I of the indictment, in which defendant was charged, tracked the language of the statute and charged that Kachougian (and others) was “part of an illegal gambling business involving bookmaking in violation of the laws of the State of Rhode Island, 1956, 1969 Re-enactment, Section 11-19-14.” The Rhode Island statute makes it illegal, inter alia, to “record or register bets or wagers or sell pools upon the result of any trial or contest of skill, speed or power of endurance of man or beast.” RJ.Gen.Laws § 11-19-14. The pertinent parts of the stipulation stated: 1. The defendants John Brian, Raphael Wax, Harry Kachougian, Vincent Quinterno, Anna Quinterno and others willfully and knowingly did conduct a gambling business involving the placement and acceptance of bets and wagers on sporting events during the period November 5, 1977 through December 21, 1977 in"
},
{
"docid": "23515820",
"title": "",
"text": "Circuit decided United States v. Brodson, 528 F.2d 214 (7 Cir. 1975), which held that the approval of a “judge of competent jurisdiction” was absolutely necessary to authorize the Government to present to a federal grand jury, evidence of a violation of 18 U.S.C. § 1084, for which no such approval had been obtained, even though exactly the same evidence had been gained from an authorized tap on an intercepted conversation which related to a Title 18, § 1955 violation. Both §§ 1084 and 1955 were overlapping statutes covering illegal gambling. The court held that the two offenses “were separate and distinct” and that evidence properly obtained and authorized through a tap which bears on a particular offense can only be used to indict for another offense where the essential elements of the latter are exactly the same as those of the former — which doesn’t occur very often. The present majority opinion abolishes this Circuit’s adoption of the relatively broad definition of closely related state and federal offenses and like criminal conduct, as obviating the necessity for obtaining the approval of a “judge of competent jurisdiction” before presenting the state-tap acquired evidence to a federal grand jury. In its place it substitutes the test of exactly similar essential elements in both the state and federal crimes as the prerequisite to the authority of the United States attorney to present the evidence to the federal grand jury without the prior approval of a judge. In the following discussion I shall take up the effect of the new, stricter standard set forth in the majority opinion, as it relates to counts one and two, upon several of the decisions of this court which have shaped the current rule of the Second Circuit. Section 2517(5) requires any federal or state agent, acting as a witness, in a federal court to obtain judicial approval before so testifying, e. g., in grand jury proceedings, about the contents of intercepted “communications relating to offenses other than those specified in the [initial] order of authorization or approval . . . ” (emphasis supplied). It is clear"
},
{
"docid": "7407841",
"title": "",
"text": "“other offenses” refer to particular statutory violations different from those designated in the authorization order, rather than offenses constituting a different generic type of criminal activity. In United States v. Brodson, 393 F.Supp. 621 (E.D.Wis.), aff’d, 528 F.2d 214 (7th Cir. 1975), on which the court below relied, the Government obtained an order authorizing electronic surveillance for the purpose of obtaining evidence of violations of section 1955. No authorization was obtained for surveillance as to a violation of section 1084. The “1955” wiretaps disclosed evidence of violations of section 1084 that the Government presented to a grand jury, which returned an indictment charging a violation of that statute. The court dismissed the indictment, ruling that section 2517(5) required the Government to obtain a disclosure order before the evidence was presented to the grand jury. In United States v. Marion, supra, the Government presented wiretap evidence to a grand jury that was obtained pursuant to a state court order authorizing interceptions to detect illegal possession of dangerous weapons. The intercepted conversations were used to question the defendant about possible violations of the federal statute concerned with the transportation of an unregistered firearm in interstate commerce, 18 U.S.C. § 922. Over a strong dissent, the Second Circuit reversed the defendant’s conviction because the Government failed to secure section 2517(5) approval for the disclosure of conversations that related to offenses “other than those specified” in the state court’s order. The facts in both Brodson and Marion are clearly distinguishable from those involved in this appeal. Here, the Government presented the intercepted conversations to the grand jury in an effort to secure an indictment under sections 1084 and 1952 after a disclosure order was obtained. At the time that the witness Aurillio was brought before the grand jury the prosecutor was seeking an indictment under section 1955. The evidence adduced at the hearing on appellee’s motion to suppress reflects that the Government was proceeding in good faith to secure an indictment solely under that section. This conclusion is strengthened by the fact that the prosecutor did not seek an indictment under sections 1084 and"
},
{
"docid": "5052876",
"title": "",
"text": "in good faith, and not as a subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order. S.Rep. No. 1097, supra at 12, quoted in 2 U.S.Code Cong. & Admin.News, supra at 2189 (citations omitted). The courts which have addressed the section 2517(5) issue clearly have recognized this concern. In Brodson, supra, the Seventh Circuit dismissed an indictment for failure to comply with the section 2517(5) requirement. There, however, no 2517(5) application of any kind was made prior to the disclosure of the intercepted communications to the grand jury. 528 F.2d at^l5. No impartial and independent judicial inquiry was made as required by section 2517(5) prior to the use of the electronic surveillance. Thus, the purpose of the section as evidenced in the above legislative history was clearly frustrated. Similarly, in Marion intercepted communications relating to offenses other than those specified in the wiretap order were disclosed prior to the procurement of a 2517(5) order. 535 F.2d at 703-04. Again no proper showing was made as required by the legislative history and the clear purpose of section 2517(5) was subverted. The instant facts, however, are clearly dissimilar to those in Marion and Brodson. First, there is no question that the conversations were the proper subject of interception since they are clearly probative of the state crimes named in the initial state wiretap orders. It follows, therefore, that the interceptions can properly be used in any state criminal proceedings. Since the interceptions herein also were probative of distinct federal offenses, unlike the situations in Marion and Brodson, the government did obtain a 2517(5) disclosure order prior to any use of the intercepted communications in federal proceedings. Though the amendment applications did not name section 371, the government was compelled to make the showing required by section 2517(5) prior to the state judges’ authorization of the amendment order. Thus, in permitting disclosure of all the interceptions presently under attack, the state judge had to find that the original order was lawfully obtained, sought in good faith and not as a subterfuge. Cf. United"
},
{
"docid": "7407842",
"title": "",
"text": "defendant about possible violations of the federal statute concerned with the transportation of an unregistered firearm in interstate commerce, 18 U.S.C. § 922. Over a strong dissent, the Second Circuit reversed the defendant’s conviction because the Government failed to secure section 2517(5) approval for the disclosure of conversations that related to offenses “other than those specified” in the state court’s order. The facts in both Brodson and Marion are clearly distinguishable from those involved in this appeal. Here, the Government presented the intercepted conversations to the grand jury in an effort to secure an indictment under sections 1084 and 1952 after a disclosure order was obtained. At the time that the witness Aurillio was brought before the grand jury the prosecutor was seeking an indictment under section 1955. The evidence adduced at the hearing on appellee’s motion to suppress reflects that the Government was proceeding in good faith to secure an indictment solely under that section. This conclusion is strengthened by the fact that the prosecutor did not seek an indictment under sections 1084 and 1952 until some two months after Aurillio’s appearance. Appellee has emphasized that the testimony of the FBI agent in charge of the investigation reveals that the Government knew that the wiretap evidence standing alone was insufficient to support an indictment under section 1955 because it failed to show that the gambling business involved five or more persons. However, the record shows that the Government proceeded in the hope that Aurillio’s testimony under his grant of immunity would suffice to fill that evidentiary gap. Thus, it appears that the fact the information presented also pertained to violations of section 1084 and 1952 was fortuitous. Only after Aurillio’s testimony failed to show participation by the requisite number of persons and after a delay of two months, did the Government seek and obtain an order authorizing the disclosure of the intercepted conversations to establish violations of sections 1084 and 1952. In seeking to determine the proper application of section 2517(5), we are convinced that the phrase “relating to offenses other than those specified in the order of authorization”"
},
{
"docid": "23255451",
"title": "",
"text": "be prosecuted (para. 25a). Raids and searches of individuals are usually not productive in gambling cases (para. 26). Infiltrating the gambling operation would not result in identifying all those involved (para. 27). These facts constitute an adequate explanation of why other investigatory procedures would not be likely to succeed. We hold that under the standards of this circuit the district court’s authorization order must be upheld. III. The Alleged Use of Evidence Contrary to the Provisions of the Act Appellant claims the government violated the wiretap statute by intercepting conversations that were not designated in the original application and authorization, and by failing to obtain judicial authorization for the use of such evidence “as soon as practicable” as required under 18 U.S.C. § 2517(5). It is necessary to set forth the sequence of what took place. On December 6, 1977, application for a wiretap of defendant’s phone was made. It alleged probable cause to believe that offenses in violation of 18 ■U.S.C. §§ 1084, 1952, and 371 were being committed. Judicial authorization issued on the same day. Telephone conversations were intercepted and recorded during the period December 17 to December 22, 1977, some of which showed violations of 18 U.S.C. § 1955. On July 31, 1979, almost nineteen months after the authorization issued, application was made under 18 U.S.C. § 2517(5) to use conversations showing violations of 18 U.S.C. § 1955 pursuant to 18 U.S.C. § 2517(3). Authorization for such use was granted by the district court on the same day. This evidence was then disclosed to a grand jury. On April 17, 1980, the grand jury indicted defendant for violating 18 U.S.C. §§ 1955 and 1084 as well as §§ 371 and 2. Brian was convicted on stipulated facts solely for violating 18 U.S.C. § 1955. Our resolution of the issue must be made in light of the Supreme Court’s holding on the basic requirements for suppression. Resolution of that question [suppression] must begin with United States v. Giordano, 416 U.S. 505 [, 94 S.Ct. 1820, 40 L.Ed.2d 341] (1974), and United States v. Chavez, 416 U.S. 562 [,"
},
{
"docid": "17708050",
"title": "",
"text": "violations of certain specified crimes named in the Act. 18 U.S.C. § 2516. In the succeeding Section 2517 it authorized the disclosure and use of such interceptions in evidence, save and except where the intercepted communication relates to offenses other than those specified in the original order. In these latter situations, a second application was required to be made to a judge of competent jurisdiction for permission to disclose such evidence of other offenses. In the second application, the good faith of the original application would thus be tested. The Government says that it was not obliged to make the application under Section 2517(5) because the evidence secured under the Section 1955 order and authorization and used in that prosecution applied equally as well to the Section 1084 prosecution. This is of no consequence here because the two offenses are wholly separate and distinct; they involve dissimilar elements and require different evidence, even though some of it might overlap because both concern illegal gambling. The controlling factor here, however, is not the dissimilarity of the offenses, but the fact that the Government itself has violated the key provision of the legislative scheme of Section 2515, in that it did not comply with the mandate of Section 2517(5). The Act in Section 2515 condemned all wire or oral interceptions and prohibited their use in evidence where their disclosure was “in violation of this Chapter”. Any exceptions from this broad language must be strictly construed in order to carry out the purpose of the Congress and make certain that the privacy of the individual is protected as so provided. We therefore find that it was the duty of the Government to present the evidence it obtained under the Section 1955 authorization to the trial judge for him to determine whether it was admissible and was sufficient to meet the burden of the prosecution under Section 1084. Dismissal of an indictment is the ultimate sanction for the Government’s failure to act properly. That drastic remedy has been approved in at least five other circuits in cases involving challenged Grand Jury evidence: Jones v."
},
{
"docid": "18848393",
"title": "",
"text": "21 U.S.C. § 848. Defendant Harvey contends that pursuant to 18 U.S.C. § 2517(5) , the Government was required to apply for and obtain authorization and/or approval from a judge prior to disclosing the intercepted communications to the grand jury, and pri- or to using them at trial. The Government sought and obtained no such authorization or approval prior to disclosing the intercepted communications to the grand jury. The Defendant’s contention is based on United States v. Brodson, 528 F.2d 214 (7th Cir.1975) and United States v. Marion, 535 F.2d 697 (2d Cir.1976). In Brodson the Seventh Circuit, with Associate Justice Tom C. Clark sitting by designation, affirmed the dismissal of an indictment because the Government failed to get subsequent authorization for disclosure under § 2517(5). The defendant in Brodson was charged in the indictment with the transmission of wa gers and wagering information in interstate commerce in violation of 18 U.S.C. § 1084. The evidence for the indictment was obtained through the interception of telephone conversations under an order that only authorized interceptions covering violations of 18 U.S.C. § 1955, which prohibits the operation of an illegal gambling business in interstate commerce. The Government filed an application under § 2517(5) just prior to trial and eight (8) months after the indictment was returned. The district court denied the application as untimely and dismissed the indictment. On appeal, the Seventh Circuit affirmed the dismissal, rejecting the Government’s argument that no authorization was required under § 2517(5). The Government had argued that the evidence secured under the § 1955 order related to and applied equally to the § 1084 prosecution, thus no § 2517(5) authorization was necessary. The Seventh Circuit disagreed, finding that the two offenses were separate and distinct, involved dissimilar elements, and required different evidence, even though there might be some overlap because both concerned illegal gambling. Brodson, supra, 528 F.2d at 216. In Marion, supra, the other case most heavily relied on by Defendant Harvey, the defendant had been indicted on one count of perjury (Count I) and two counts of obstruction of justice (Counts II and III)."
},
{
"docid": "23255457",
"title": "",
"text": "practicable.” Here, nineteen months passed between the recording of the implicating conversations and the application for their use as evidence. Appellant argues strenuously that the application could and should have been made long before it was, and that the nineteen-month delay constituted a per se violation of the “as soon as practicable” requirement of section 2517(5). The government explained the long hiatus by stating that the conversations’ relevance “has only become apparent upon a recent analysis of the results of the wire interceptions.” We recognize that 18 U.S.C. § 1955 and 18 U.S.C. § 1084, though similar, are different offenses and that a detailed study of the intercepts was necessary to determine which statute was being violated. Although nineteen months seems an inordinate amount of time for analyzing the intercepted conversations, we do not think that such a delay automatically triggers suppression. We note first that appellant has not alleged that the delay prejudiced him in any way. Although this is not determinative, it shifts our focus from the effect on the appellant to a consideration of whether the delay contravenes a basic policy requirement of the Act. See United States v. Donovan, 429 U.S. at 433-34, 97 S.Ct. at 670-671. “A determination of whether the order was obtained ‘as soon as practicable’ requires an examination of the purposes of section 2517(5).” United States v. Vento, 533 F.2d at 855. We find no reason to suppress the evidence of violations of section 1955 on either statutory or constitutional grounds. The conviction is affirmed. We agree with the Fifth Circuit that by enacting section 2517(5), “Congress wished to assure that the Government does not secure a wiretap authorization order to investigate one offense as a subterfuge to acquire evidence of a different offense for which the prerequisites to an authorization order are lacking.” United States v. Campagnuolo, 556 F.2d 1209,1214 (5th Cir.1977). See also United States v. Vento, 533 F.2d at 855. We discern no subterfuge here. As explained above, the similarity between section 1955 and section 1084 offenses makes it difficult to determine whether a particular gambling related conversation is"
},
{
"docid": "7407840",
"title": "",
"text": "cases, the conversations may be disclosed only after a judge finds' that the contents were intercepted in accordance with Title III. The purpose of section 2517(5) is reasonably clear. The framers of Title III presumably intended by this requirement to prevent evasion of the several restrictions upon original applications (e.g., showing of probable cause, enumerated serious crime, ineffectiveness of other investigatory techniques as to that offense). Otherwise, the applicant could easily name one crime while in fact he may have anticipated intercepting evidence of a different crime for which the prerequisites could not be satisfied. Such “subterfuge searches”, in addition to their dissonance with Title III, would indeed run afoul of the Fourth Amendment. Without a judge’s determination of inadvertence, Title III authorization might rapidly degenerate into what Justice Clark recently termed “the electronic equivalent . of a ‘general search warrant.’ ” United States v. Brodson, 528 F.2d 214 (7th Cir. 1975). United States v. Marion, 535 F.2d 697, 700-01 (2d Cir. 1976). The courts that have interpreted section 2517(5) have held that the words “other offenses” refer to particular statutory violations different from those designated in the authorization order, rather than offenses constituting a different generic type of criminal activity. In United States v. Brodson, 393 F.Supp. 621 (E.D.Wis.), aff’d, 528 F.2d 214 (7th Cir. 1975), on which the court below relied, the Government obtained an order authorizing electronic surveillance for the purpose of obtaining evidence of violations of section 1955. No authorization was obtained for surveillance as to a violation of section 1084. The “1955” wiretaps disclosed evidence of violations of section 1084 that the Government presented to a grand jury, which returned an indictment charging a violation of that statute. The court dismissed the indictment, ruling that section 2517(5) required the Government to obtain a disclosure order before the evidence was presented to the grand jury. In United States v. Marion, supra, the Government presented wiretap evidence to a grand jury that was obtained pursuant to a state court order authorizing interceptions to detect illegal possession of dangerous weapons. The intercepted conversations were used to question the"
},
{
"docid": "18925353",
"title": "",
"text": "remedy for a § 2517(5) violation was suppression of the conversations disclosed to the grand jury without a § 2517(5) order. Cf. United States v. McKinnon, 721 F.2d at 23 (where unauthorized disclosure of evidence involved cumulative evidence, proper remedy is suppression at trial of evidence not authorized). It should be noted, however, that the indictment in Brodson consisted of only one count charging an offense that had not been specified in the authorization order. The second, less drastic, approach to the issue of sanctions for a § 2517(5) violation is to examine the government’s behaviour and determine whether a subterfuge search has occurred or whether governmental bad faith is involved. See United States v. Southard, 700 F.2d at 31. Sanctions should be applied flexibly, with the statutory purpose in mind. United States v. Watchmaker, 761 F.2d at 1471; United States v. Vento, 533 F.2d at 856; United States v. Aloi, 449 F.Supp. at 721. Where no bad faith or subterfuge search occurred, dismissal of the indictment is not required. The last approach views a § 2517(5) violation as a technical violation which does not require the severe sanction of dismissal. This approach rests on a distinction between illegal interception (which merits suppression) and improper disclosure. United States v. Cardall, 773 F.2d 1128 (10th Cir.1985). See also United States v. Vento, 533 F.2d 838, 855 (3d Cir.1976) (§ 2518(10) demonstrates that suppression of wiretap evidence should only be imposed if interception itself was in some way improper); United States v. Southard, 700 F.2d at 29 (failure to satisfy § 2715(5) is not violation of statutory section that directly and substantially implements congressional intent). In the instant case, the court does not find that the original wiretap orders were sought in bad faith as a means to evade judicial review of § 2518 prerequisites for the extortion conspiracy. It is clearly demonstrated in the wiretap applications preceding Application E, and in Application E itself, that the government was vigorously investigating, and reaping plentiful evidence of, narcotics violations. Though the government has not promulgated the inadvertence of its discovery of the extortion"
},
{
"docid": "1528548",
"title": "",
"text": "and defendant Masciarelli (using the alias Ray Mills) in Binghamton, in which Masciarelli agreed to purchase from Schultz “line” information used for the purpose of setting “point spreads” in sports betting. The government summarized this conversation, noting the location of each of the parties, in its Fifth Day Report to Judge Port, who thereupon approved continuation of the wiretap. After being presented with tapes of the intercepted conversations, a federal grand jury on November 18, 1974, handed down one indictment charging Masciarelli and nine others with operating a gambling business in violation of 18 U.S.C. § 1955, and another indictment charging Masciarelli and Schultz with interstate transmission of wagering information in violation of 18 U.S.C. § 1084. Masciarelli and Schultz moved to dismiss the § 1084 indictment on the grounds that the interstate conversation, although it related to a violation of § 1955 as specified in the court’s order, related to a violation of § 1084, which was not so specified, and the government had failed to obtain “as soon as practicable” a finding by Judge Port, as required by 18 U.S.C. § 2517(5), to the effect that the “contents were otherwise intercepted in accordance with the provisions” of the federal wiretap authorization laws and an approval by him of its use other than in relation to a § 1955 prosecution. Defendants argued that since the government failed to comply with the requirements of § 2517(5), exclusion of the conversation and dismissal of the indictment was mandated by § 2515, which prohibits the receipt by a grand jury or at trial of any intercepted communication disclosed in violation of the intercept laws, or any evidence derived therefrom. On November 9, 1976, Judge Port dismissed the indictment in a decision from the bench, relying on United States v. Brodson, 528 F.2d 214 (7th Cir. 1975), and our decision in United States v. Marion, 535 F.2d 697 (2d Cir. 1976). Although indicating that he would have decided the case differently if “writing on a clean slate,” Judge Port felt “obliged” to follow Marion’s reasoning that communications relating to crimes not set forth"
},
{
"docid": "23314786",
"title": "",
"text": "any court of the United States____” But Subsection (5) creates an exception where the intercepted material relates to “offenses other than those specified in the order of authorization.” In such cases, the government must obtain an authorization from “a judge of competent jurisdiction,” reflecting his determination that “the contents were otherwise intercepted in accordance with the provision of this chapter,” before it can disclose such materials. In the instant case, one state order authorized interception of communications relating to “the delivery and sale of controlled substances, to wit: Diazepam, commonly known as valium; Lysergic Acid Diethylamine, commonly known as LSD; Cannabis; Methaqualon ____” A second state order included communications relating to the delivery and sale of Cannabis and Diazepam (valium). Appellants argue that, by disclosing these materials to a grand jury considering RICO (rather than drug law) violations without obtaining any prior authorization, the government violated Section 2517(5). Appellants cite two cases, United States v. Brodson, 528 F.2d 214 (7th Cir.1975), and Marion v. United States, 535 F.2d 697 (2d Cir.1976), in which indictments were dismissed after the government used intercepted materials in grand jury proceedings relating to a violation not described in the original order, without obtaining an authorization. They claim that this precedent requires the dismissal of the indictments in this case. Marion and Brodson, however, are not binding precedent in this Circuit; the single binding case that has considered the effect of Section 2517(5) on grand jury evidence, United States v. Campagnuolo, 556 F.2d 1209 (5th Cir.1977), was far less rigid in its conclusions. The court concluded that the phrase “relating to offenses other than those specified in the order of authorization” must be understood by reference to congressional intent: “Congress wished to assure that the Government does not secure a wiretap authorization order to investigate one offense as a subterfuge to acquire evidence of a different offense for which the prerequisites to an authorization order are lacking.” 556 F.2d at 1214. Although the court in Campagnuolo did not elaborate, understanding the authorization requirement as a means of preventing governmental subterfuge appears to permit a more flexible"
}
]
|
519052 | the immediate successor to the examiner. That they have the power, therefore, to administer the affairs of an insolvent bank and determine the liability, if any, of its stockholders, without resorting to a judicial inquiry, is established by Hanson v. Soderberg, 105 Wash. 255, 258, 177 Pac. 827. Indeed, the Banking Act of the state, in its structure, purpose, and mode of administration,’is thought to be of like character and nature as the National Banking Act (13 Stat. 99). A receiver of a national bank is not an officer of the corporation, nor of the court, but an agent and officer of the United States. In re Chetwood, 165 U. S. 443, 17 Sup. Ct. 385, 41 L. Ed. 782; REDACTED 541, 38 Sup. Ct. 381, 62 L. Ed. 872. But, however this may be, the case of Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337, is so nearly analogous to the present controversy as to be controlling. Relfe was superintendent of the insurance department of the state of Missouri. In a suit to dissolve the Rife Association of America, an insurance company, because of insolvency, the state court, by its decree, vested the property of the company in Relfe, as such superintendent, by virtue of a statute directing such a proceeding, whereupon Relfe was authorized to dispose of such property for the use and benefit of the creditors and policy holders of the company. It was held that, by | [
{
"docid": "22242638",
"title": "",
"text": "Stat. 1246. The receiver, unlike a president, director, cashier, or teller, is an officer, not of the corporation, but of the United States. In re Chetwood, 165 U. S. 443, 458. As such he gives to the United State's a bond for the faithful discharge of his duties; pays to the' Treasurer of the United States moneys collected; and makes to the Comptroller reports of his acts and proceedings. Rev. Stats., § 5234. Being an officer of the United-States he is represented-in court by the United States attorney for the district, subject to the supervision of the Solicitor of the Treasury, § 380. Gibson v. Peters, 150 U. S. 342. And because he is such officer, a receiver has been permitted to sue in the federal court regardless of citizenship or of the amount in controversy. Price v. Abbott, 17 Fed. Rep. 506. In a sense he acta on behalf of the bank. The appointment of a receiver does not dissolve the corporation, Chemical National Bank v. Hartford Deposit Co., 161 U. S. 1, 7; the assets remain its property, Rosenblatt v. Johnston, 104 U. S. 462; the receiver deals with the assets and protects them for whom it may concern, including the stockholders; and his own compensation and expenses are a charge upon them. § 5238. But a receiver is appointed only when the condition of the bank or its practices make intervention by the Government necessary for . the protection of noteholders or other creditors. While the receivership continues the corporation is precluded from dealing by its officers or agents in any way with its assets. And when all creditors are satisfied or amply protected the receiver may be discharged by returning the bank to the , control of its stockholders or by the appointment of a liquidating agent under Act of June 30, 1876, c. 156, 19 Stat. 63. Whether, as the Government assumes, such statutory agent who is elected by the stockholders is included under term “agent” as used in § 5209, we have no occasion tp determine. The question was expressly left undecided in Jewett"
}
]
| [
{
"docid": "5399568",
"title": "",
"text": "The jurisdiction of the court and the propriety of the in j motion are brought in question by this appeal. The receiver of a national bank is not an officer of court, but is the representative of the Comptroller and under his control. Ex parte Chetwood, 165 U. S. 443, 458, 17 S. Ct. 385, 41 L. Ed. 782. Although the District Court may be called on to authorize sales and settlements, the assets of the bank are not in the court for administration, thereby drawing to it all disputes over the title to and liens upon them and entitling the court to defend its possession as if they were in the hands of its own receiver. Jurisdiction as a federal court over this controversy can be rested upon no such basis. But it exists under 28 USCA § 41(1) as of a suit of a civil nature brought by an officer of the United States authorized by law to sue. Gibson v. Peters, 150 U. S. 342, 14 S. Ct. 134, 37 L. Ed. 1104; Short v. Hepburn (C. C. A.) 75 F. 113; Myers v. Hettinger (C. C. A.) 94 F. 370; Schofield v. Palmer (C. C.) 134 F. 753. Yet, without regard to the merits of his title, the receiver cannot obtain relief by injunction against the officer of the state court because of a point not presented in the trial court. 28 USCA § 379 declares: “The writ of injunction shall not be granted by any dourt of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy.” The winding up of a national bank by the Comptroller we do not regard as proceedings in bankruptcy within the meaning of the section, nor have we been referred to any law in connection therewith which authorizes the use of injunction against proceedings in a state court. In First National Bank v. Colby, 21 Wall. 609, 22 L. Ed. 687, a creditor of an insolvent national bank had some"
},
{
"docid": "22367292",
"title": "",
"text": "Me. Chief Justice Waite delivered the opinion of the court. The Life Association of America was, on the 5th of November, 1879, a corporation of the S.tate of Missouri, for the purpose of doing a life insurance business, with its chief office at St. Louis, in that State. ' By the laws of Missouri, the superintendent of the insurance department of the State government ■ might,'under certain circumstances, institute proceedings in the courts of the State for the dissolution of such a corporation and the winding up of its affairs. Sect. 6043 of the Revised Statutes of Missouri is as follows: — “Upon the rendition of a final judgment dissolving a company, or declaring it insolvent, all the assets of such company Shall vest in fee-simple and absolutely in the superintendent of the insurance department of this State, and his successor op successors in office, who shall hold and dispose of the same for the use and benefit of the creditors and policy-holders of such company, and such other persons .as may be interested in such assets.” Oil the 13th of October, 1879, L. E. Alexander, a citizen of Missouri, and the receiver of the Columbia Life Insurance Company of Missouri, recovered a claim against the Life Association of America for 11,100,000, and thereupon William S. Relfe, the superintendent of the insurance department of the State, commenced proceedings under the statute to dissolve the last-named corporation and wind up its affairs. In his petition he prayed that the company might be enjoined from doing any further business, and that an agent might be appointed to take •charge of its property temporarily. Such an order was made in the cause, and D. M. Frost, a citizen of Missouri, appointed temporary agent and receiver. Frost at once qualified under this appointment. On the 5th-of November, 1879, Rundle and wife, the appellees, policy-holders of the company, commenced suit in the Fifth District Court of the Parish of New Orleans, against the life association, Frost, the temporary agent and receiver, John R. Fell, the local agent of the company at New Orleans, and L."
},
{
"docid": "8013814",
"title": "",
"text": "of demands against insolvents or their estates.” Cook County Nat. Bank v. U. S., 107 U. S. 448, 450, 2 S. Ct. 564, 27 L. Ed. 537. Section 5234 of the Revised Statutes (Comp. Stats. 1918, § 0821), provides that the Comptroller of the Currency may appoint a receiver and require of him such bond and security as he deems proper. The duty of the receiver is, under the direction of the Comptroller, to take' possession of the hooks and assets of every description of the bank, collect all debts due and claims belonging to it,” and upon the order of a court of record of' competent jurisdiction, may sell or'compound all had or doubtful debts, and on a like order, may sell all the real and, personal property of such association, on such terms as the court shall direct; and may, if necessary to pay the debts of such association, enforce tbe individual liability of the stockholders. Such receiver shall pay over all money so made to the Treasurer of the United States, subject to the order of the Comptroller, and also make report to the Comptroller of all his acts and proceedings.” The application to this court for an order for the sale of assets is a step in the winding np of the affairs of the bank, and, if such order be granted, although made by a court of record of competent jurisdiction, still the funds collected from the sale are n.ot subject to a disbursement by tbe court, but by the Comptroller, by whom the receiver was appointed and controlled. In re Chetwood, 165 U. S. 443, 17 S. Ct. 385, 41 L. Ed. 782. The receiver is not an officer of the court (In re Chetwood, supra), nor does the receiver by this application submit himself and the áffairs of the Bank to the jurisdiction of the court; nor does the presentation of the application operate to make the receiver an officer of the court, or place the assets of the bank under the control of the court “in the sense in which control is"
},
{
"docid": "23427510",
"title": "",
"text": "(Wachsmuth v. Nat. Bank, 96 Mich. 426, 56 N. W. 9, 21 L. R. A. 278); conspiracy between a bank through its president and a merchant to defraud those of whom latter purchased goods (Johnston Fife Hat Co. v. National Bank, 4 Okl. 17, 44 Pac. 192). It is also well settled that a corporation cannot escape liability upon a plea that the tortious acts were ultra vires. Railroad v. Quigley, 21 How. 202, 16 L. Ed. 73; Merchants’ Bank v. State Bank, 10 Wall. 604, 645, 19 L. Ed. 1008; County of Calhoun v. Emigrant Company, 93 U. S. 124, 130; 23 L. Ed. 826; National Bank v. Graham, 100 U. S. 699, 702, 25 L. Ed. 750; Salt Lake City v. Hollister, 118 U. S. 256, 6 Sup. Ct. 1055, 30 L. Ed. 176; Railway v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 146; Railway Co. v. Howard, 178 U. S. 153, 160, 20 Sup. Ct. 880, 44 L. Ed. 1015; Alexander v. Relfe, 74 Mo. 517; Zinc Carbonate Company v. First National Bank, 103 Wis. 125, 79 N. W. 229, 74 Am. St. Rep. 845. But it is said that Wright should be denied relief because of the maxim “In pari delicto potior est conditio defendentis.” It was an essential part of the scheme to defraud that the victim should be led on by degrees to place himself in such a position that he. would be prevented from having recourse to the courts. And this defense, so contrived in advance, is now produced for recognition, and it is said that, the plaintiff being equally culpable with the conspirators, a court of justice should therefore leave him where it finds him. It must be admitted that when Wright left his home for Webb City he thought he was going to participate in an unlawful scheme to defraud others. ¡But, after all, it amounted to nothing more than a mere belief on his part. That he was betting upon a foot race at Webb City was but a figment of his imagination. In reality"
},
{
"docid": "6081949",
"title": "",
"text": "not a party to the record, the real party against which the judgment wül so operate as to compel it to specifically perform its contracts. * * * The other class is where- a suit is brought against defendants who, claiming to act as officers of the state, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the state. Such suit, whether brought to recover money or property in the hands of sueh defendants, unlawfully taken by them in behalf of the state, or for compensation in damages, or, in a proper case where the remedy at law is inadequate, for an injunction to prevent sueh wrong and injury, or for a mandamus, in a like case, to enforce upon the defendant the performance of a plain legal duty, purely ministerial — is not, within the meaning of the Eleventh Amendment, an action against the state.” In other cases, owing to the peculiar issues involved, in ruling that the state was not the real party in interest, apparent emphasis has been placed upon the fact that the action did not seek to recover any money for a state. Within this class of eases falls Missouri, etc., Railway Co. v. Missouri Rd., etc., Commissioners, 183 U. S. 53, 22 S. Ct. 18, 46 L. Ed. 78. The ease of Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337, presents still a different situation. A statute of Missouri provided that: “Upon the rendition of a final judgment. dissolving a company,' or declaring it insolvent, all the ássets of such company shall vest in fee-simple and absolutely in the superintendent of the insurance department of this state, and his successor or successors in office, who shall hold and dispose of the same for the use and benefit of the creditors and policy holders of such company and sueh other persons as may be interested in sueh assets.” Rev. St. 1879, § 6043. A life insurance company of the state of Missouri- was dissolved"
},
{
"docid": "22350595",
"title": "",
"text": "has not been overruled or explained away by any subsequent decision of this court to which our attention has been called. In Relfe v. Rundle, 103 U. S. 222, it was held that a final decree dissolving an insolvent life insurance company of Missouri and vesting, as provided by the statutes in force, for the use and benefit of creditors and policy holders, the entire property of the company in the superintendent of the insurance department of the State, made him the statutory successor of the corporation for the purpose of winding up its affairs; as such he represented the corporation at all times and places in all matters connected with its trust; he was the successor of the State, and represented the State in its sovereignty, and as his authority did not come from the decree of the court, but from the statutes, he was in fact the corporation itself for the purpose mentioned. The superintendent of insurance, being the successor of the corporation, had the right to represent it, and he became a party to the suit commenced against it in Louisiana, and, being a citizen of Missouri, and appearing in time, had the right to remove the case into the United States court. The suit had been commenced against the company in Louisiana, and it having been dissolved by the decree of a court of competent jurisdiction, it was dead, and if the representative appointed pursuant to the laws of the State and holding the title to the property could not be substituted in place of the original defendant it would follow that no defence could be made by any one. The case is no authority for the maintenance of this action. In Hawkins v. Glenn, 131 U. S. 319, Glenn was the trustee of the corporation, which by its deed assigned and transferred to three trustees, for whom he was afterwards substituted, all the property and effects of the corporation, in trust, for the payment of its debts, Glenn subsequently brought a suit in another jurisdiction against a stockholder, Hawkins. The right of Glenn was through"
},
{
"docid": "22367294",
"title": "",
"text": "E. Alexander, receiver of the Columbia Life Insurance Company, the object of which 'was to have the assets of the company in Louisiana declared a trust fund and applied to the payment of the claims of Louisiana creditors and policy-holders in preference to others. In the bill the decree in favor of the receiver of the Columbia Life Insurance Company, and the proceedings by Relfe, the superintendent of the insurance department, with the appointment of Frost as temporary receiver, were set out in detail, and the whole object and purpose of the suit w;as to keep the Louisiana assets out of the hands of Relfe and his successors in office. No special relief was asked against the receiver of the Columbia Life Insurance Company. Upon the filing of the bill, Walter B. Wilcox was appointed receiver. Service of process was made on Alexander only through Francis B. Lee, who was appointed curator ad hoc at the same time that Wilcox was appointed receiver. Fell was made a party only for the purpose of reaching property in his hands. On the 10th of November the company was dissolved by a decree of the Missouri court, and its property vested in Relfe, superintendent of the insurance department, as provided by the statute. On the 17th of the same month Relfe was, on his own motion, ’made a party to' the suit in New Orleans, as the legal representative of the late corporation, and on the 28th he filed a petition for the removal of thdt cause to the Circuit Court of the United States for the District of Louisiana. In his petition he set forth his own citizenship in Missouri, and that of the appellees in Louisiana. The citizenship of all the other persons named as parties to the suit appeared in the pleadings. He also gave the security required by the act of Congress, and on the 5th of December, which was in time, filed in the Circuit Court a copy of the record in the State court. On the 9th of the same month the receiver appointed in the State"
},
{
"docid": "6081950",
"title": "",
"text": "that the state was not the real party in interest, apparent emphasis has been placed upon the fact that the action did not seek to recover any money for a state. Within this class of eases falls Missouri, etc., Railway Co. v. Missouri Rd., etc., Commissioners, 183 U. S. 53, 22 S. Ct. 18, 46 L. Ed. 78. The ease of Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337, presents still a different situation. A statute of Missouri provided that: “Upon the rendition of a final judgment. dissolving a company,' or declaring it insolvent, all the ássets of such company shall vest in fee-simple and absolutely in the superintendent of the insurance department of this state, and his successor or successors in office, who shall hold and dispose of the same for the use and benefit of the creditors and policy holders of such company and sueh other persons as may be interested in sueh assets.” Rev. St. 1879, § 6043. A life insurance company of the state of Missouri- was dissolved by a decree of the Missouri court, and its property vested in Relfe, superintendent of the insurance department, as provided by statute. He was thereupon, on his own motion, made a party to a suit affecting the property of the insurance company pending in Louisiana. The standing of Relfe as a party to the suit was attacked principally “because Relfe had no standing in court; he being a creature of the state of Missouri, without capacity to sue or remove causes in Louisiana.” The Supreme Court of the United States, holding that Relfe was a proper party, said: “Relfe is not an officer of the Missouri state court, but the person designated by law to take the property of any dissolved life insurance corporation of that state, and hold and dis pose of it in trust for the use and benefit of creditors, and other parties interested. The law which clothed him with this trust was, in legal effect, part of the charter of the corporation. He was the statutory successor of the corporation for"
},
{
"docid": "6081951",
"title": "",
"text": "by a decree of the Missouri court, and its property vested in Relfe, superintendent of the insurance department, as provided by statute. He was thereupon, on his own motion, made a party to a suit affecting the property of the insurance company pending in Louisiana. The standing of Relfe as a party to the suit was attacked principally “because Relfe had no standing in court; he being a creature of the state of Missouri, without capacity to sue or remove causes in Louisiana.” The Supreme Court of the United States, holding that Relfe was a proper party, said: “Relfe is not an officer of the Missouri state court, but the person designated by law to take the property of any dissolved life insurance corporation of that state, and hold and dis pose of it in trust for the use and benefit of creditors, and other parties interested. The law which clothed him with this trust was, in legal effect, part of the charter of the corporation. He was the statutory successor of the corporation for the purpose of winding up its affairs. As such he represents the corporation at all times and places in all matters connected with his trust. He is the trustee of an express trust, with all the rights which properly belong to such a position. He is an officer of the state, and as such represents the state in its sovereignty while performing its public duties connected with the winding up of the affairs of one of its insolvent and dissolved corporations. His authority does not come from the decree of the court,, but from the statute. He appeared in Louisiana not by virtue of any appointment from the court, but as the statutory successor of a corporation which the court had in a legitimate way dissolved and .put out of existence. He was, in fact, the corporation itself for all the purposes of winding up its affairs.” While it is stated in the opinion that Relfe is an officer of the state, and as such represents the state in its sovereignty while performing its public"
},
{
"docid": "6794202",
"title": "",
"text": "E. 888, 916) is perhaps immaterial; the courts of the United States must themselves decide on their own jurisdiction. But as matter of professional opinion it is interesting to note lack of agreement to the immunity claim here advanced. It is plain that defendant superintendent does not assert and never has suggested that this money is owned by the state of New York, or that the state has any interest in the matter, except as it desires to fulfill a duty by winding up insolvent insurance companies. Compliance with the decree below will not involve the doing of “any affirmative act which affects the state’s political or property rights.” Hopkins v. Clemson College, 221 U. S. 636, 31 S. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243. That a state or national official, appointed to perform acts and duties which, though appropriate for governments, do not involve any sovereign rights of that government, is not immune from suits virtute officii, is we think especially clear. In re Chetwood, 165 U. S. 443, 17 S. Ct. 385, 41 L. Ed. 782; Tindal v. Wesley, 167 U. S. 204, 17 S. Ct. 770, 42 L. Ed. 137; Matter of Carnegie Trust Co., 161 App. Div. 280, 146 N. Y. S. 809. Of course, a state may prefer to assume a position of ownership of assets of insolvent or embarrassed corporations (Lankford v. Platte Iron Works, 235 U. S. 461, 35 S. Ct. 173, 59 L. Ed. 316), but New York has not assumed that position. We note Allen v. United States (C. C. A.) 285 E. 678, as a very relevant ease, and that the court there went “no further” than to declare “that certain deposits” were held “in trust,” leaving it to the state courts which had jurisdiction of settling the accounts of the Massachusetts commissioner of banks to decree payment. The reason for this aetion was (page 684) that there might be others similarly situated and the assets insufficient to pay all in full. No such difficulty exists here; defendant superintendent has a particular fund"
},
{
"docid": "22350594",
"title": "",
"text": "receiver, “ whether appointed as this receiver was, under the statute of New York, or under the rules and practice of chancery as they may be, his official relations to the court are the same. A statute appointment neither enlarges nor diminishes the limitation upon his action. His responsibilities are unaltered. Under either kind of appointment, he has at most only a passive capacity in the most important part of what it may be necessary for him to do, until it has been called by the direction of the court into ability to • act. He has no extra-territorial power of official action; none which the court appointing him can confer, with authority to enable him to go' into a foreign jurisdiction to take possession of the debtor’s property ; none which can give him, upon the principle of comity, a privilege to sue in a foreign court or another jurisdiction, as the judgment creditor himself might, have done, where his debtor may be amenable to the tribunal which the creditor may seek.” This statement has not been overruled or explained away by any subsequent decision of this court to which our attention has been called. In Relfe v. Rundle, 103 U. S. 222, it was held that a final decree dissolving an insolvent life insurance company of Missouri and vesting, as provided by the statutes in force, for the use and benefit of creditors and policy holders, the entire property of the company in the superintendent of the insurance department of the State, made him the statutory successor of the corporation for the purpose of winding up its affairs; as such he represented the corporation at all times and places in all matters connected with its trust; he was the successor of the State, and represented the State in its sovereignty, and as his authority did not come from the decree of the court, but from the statutes, he was in fact the corporation itself for the purpose mentioned. The superintendent of insurance, being the successor of the corporation, had the right to represent it, and he became a"
},
{
"docid": "8013815",
"title": "",
"text": "to the order of the Comptroller, and also make report to the Comptroller of all his acts and proceedings.” The application to this court for an order for the sale of assets is a step in the winding np of the affairs of the bank, and, if such order be granted, although made by a court of record of competent jurisdiction, still the funds collected from the sale are n.ot subject to a disbursement by tbe court, but by the Comptroller, by whom the receiver was appointed and controlled. In re Chetwood, 165 U. S. 443, 17 S. Ct. 385, 41 L. Ed. 782. The receiver is not an officer of the court (In re Chetwood, supra), nor does the receiver by this application submit himself and the áffairs of the Bank to the jurisdiction of the court; nor does the presentation of the application operate to make the receiver an officer of the court, or place the assets of the bank under the control of the court “in the sense in which control is required where a receiver is appointed by the court.” In re Chetwood, supra. This proceeding is an ex parte proceeding, and, though by the will of Congress put under judicial cognizance, is not by its own nature a judicial controversy. The fact that the court sought information and directed notice tot be published that the court would hear persons interested upon any objections they might make does not change the character of the proceeding. That course was followed out of a cautious wish to gain advice that would he helpful in finally determining whether or not the order applied for by the receiver should be granted. Ex parte Cockcroft, 104 U. S. 578, 26 L. Ed. 856. The statute does not intend that an objecting creditor can litigate with the receiver (who represents creditors -and the insolvent bank) the question determined by him as to tjie advisability of disposing of tbe assets 'of the.insolvent institution. There is.no suit, no process is issued, and there are no parties in the legal understanding of the term. The"
},
{
"docid": "3574032",
"title": "",
"text": "purposes of taxation. Adams Express Co. v. Kentucky, 166 U. S. 171, 17 S. Ct. 527, 41 L. Ed. 960; Henderson Bridge Co. v. Kentucky, 166 U. S. 150, 17 S. Ct. 532, 41 L. Ed. 953; and Adams Express Co. v. Ohio State Auditor, 166 U. S. 185, 17 S. Ct. 604, 41 L. Ed. 965; Harvester Bldg. Co. v. Hartley, 98 Kan. 732, 160 P. 971. No judgment was sought by the state other than a forfeiture of The Wheat Farming Company’s franchises to be a corporation and to do as a corporation. The intangible things involved were seized at the institution of that procedure, so far as there could be seizure; and the judgment that followed operated ex proprio vigor e as condemnation of all corporate rights. The appointment of receivers was a just administrative act for the protection of equitable rights and would have been implied in the absence of statute. We therefore think the information of the Attorney General and the action of the Supreme Court thereon was closely analogous to a proceeding in rem (Pomeroy’s Equity Jurisprudence, Orig. Ed., §§ 428, 429, 1317; Ennis v. Smith, 14 How. 400, 429, 14 L. Ed. 472, 1 Greenleaf on Eviden.ee, 15th Ed., § 525), and that the jurisdiction of the state Supreme Court over the corporation, its officers and stockholders, including Lonergan and Unrein, the latter being not only a stockholder but director and vice-president, was exclusive and superior to any other court from the time that proceeding was instituted. Gross v. Irving Trust Co., 289 U. S. 342, 53 S. Ct. 605, 77 L. Ed. 1243, 90 A. L. R. 1215; McKinney v. Landon (C. C. A.) 209 F. 300; Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337. The rule as between courts having concurrent jurisdiction over parties and subject matter, when a controversy arises as to which has the better right to possession, has no application here. The proceeding instituted in the state Supreme Court could not have been maintained in the Federal Court, nor the one in the Federal Court"
},
{
"docid": "3509777",
"title": "",
"text": "the insolvency of'the bank. In such case he may appoint a receiver, and the person so appointed by the express terms of the law (Rev. St. § 5234, 12 USCA § 192) may enforce the individual liability of the stockholders.” The language of. the District statute (section 298, title 5, D. C. Code 1929) specifically clothed the Comptroller with all the power which the laws of the United States gave him in relation to insolvent national banks. He is authorized to take charge of an insolvent bank engaged in business in the District of Columbia — wherever incorporated — “in the manner and to the same extent” as if the bank were a national institution. The words “to the same extent” meaning to the full extent. In short, as we think, the provision in question is notice to every banking organization incorporated under the laws of one of the states that, in coming into the District of Columbia to do business, it submits itself to the supervision and control, both in operation and in insolvency, of the Comptroller to the same extent as if it were a national bank; and if this is true, jt seems to us to follow that if, under the federal statutes, the determination of the Comptroller that an assessment is necessary is conclusive, as it is (Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476), the question is thereby foreclosed notwithstanding a contrary statute or ruling in-the state qf incorporation. If we are correct in this, nothing more need be added, for it has been definitely determined that when the Comptroller of the Currency appoints a receiver for a defaulting or insolvent national bank he may also call for a ratable assessment upon the stockholders, without a previous judicial ascertainment of the necessity of the appointment of a receiver or of the existence of the liabilities of the bank. Bushnell v. Leland, 164 U. S. 684, 17 S. Ct. 209, 41 L. Ed. 598; In re Chetwood, 165 U. S. 443, 17 S. Ct. 385, 41 L. Ed. 782. Nor is there anything in"
},
{
"docid": "4292513",
"title": "",
"text": "provided a symmetrical and complete scheme for the banks to he organized under the provisions of the statute.” To the same effect is United States v. Weitzel, 246 U. S. 534, 38 S. Ct. 381, 62 L. Ed. 872, where it is said: “The Comptroller of the Currency is charged With the duty of supervising national banks. When he deems it necessary to take possession of the assets of a bank and assume control of its operations, ho appoints a receiver under Revised Statutes, § 5234 (Comp, St. 1916, § 9821 [12 USCA § 192]).” This was in lino with the earlier ease of Cook County National Bank v. U. S., 107 U. S. 448, 2 S„ Ct. 561, 564, 27 L. Ed. 537, where it is said: “We consider that act as constituting by itself a complete system for the establishment and government of national banks, prescribing * * * their liability to be placed in the hands of a receiver, and the manner, in sueh event, in which their affairs shall be wound up,” etc. Touching the second point, it was also said in-the first case: “Our conclusions, upon principle and authority, are that Congress, having power * * * to regulate and control the exercise of their operations; that Congress has directly.dealt with the subject of insolvency of sueh banks by giving control to the Secretary of the Treasury and the Comptroller of the Currency, who are authorized to suspend the operations of the banks and appoint receivers thereof when they.beeame insolvent.” So also the possession of a receiver appointed by the Comptroller is not the possession of' a court officer, but is the possession of the United States. Thus, In re Chetwood, 165 U. S. 458, 17 S. Ct. 385, 391, 41 L. Ed. 782, it is said: “The receiver was not the officer of any court, but the agent and officer of the United States, .as ruled by Mr. Justice Gray, on circuit, in Price v. .Abbott [C. C.] 17 F. 506, and by Mr. Justice Jackson, then circuit judge, in Armstrong v. Trautman [C."
},
{
"docid": "22367293",
"title": "",
"text": "such assets.” Oil the 13th of October, 1879, L. E. Alexander, a citizen of Missouri, and the receiver of the Columbia Life Insurance Company of Missouri, recovered a claim against the Life Association of America for 11,100,000, and thereupon William S. Relfe, the superintendent of the insurance department of the State, commenced proceedings under the statute to dissolve the last-named corporation and wind up its affairs. In his petition he prayed that the company might be enjoined from doing any further business, and that an agent might be appointed to take •charge of its property temporarily. Such an order was made in the cause, and D. M. Frost, a citizen of Missouri, appointed temporary agent and receiver. Frost at once qualified under this appointment. On the 5th-of November, 1879, Rundle and wife, the appellees, policy-holders of the company, commenced suit in the Fifth District Court of the Parish of New Orleans, against the life association, Frost, the temporary agent and receiver, John R. Fell, the local agent of the company at New Orleans, and L. E. Alexander, receiver of the Columbia Life Insurance Company, the object of which 'was to have the assets of the company in Louisiana declared a trust fund and applied to the payment of the claims of Louisiana creditors and policy-holders in preference to others. In the bill the decree in favor of the receiver of the Columbia Life Insurance Company, and the proceedings by Relfe, the superintendent of the insurance department, with the appointment of Frost as temporary receiver, were set out in detail, and the whole object and purpose of the suit w;as to keep the Louisiana assets out of the hands of Relfe and his successors in office. No special relief was asked against the receiver of the Columbia Life Insurance Company. Upon the filing of the bill, Walter B. Wilcox was appointed receiver. Service of process was made on Alexander only through Francis B. Lee, who was appointed curator ad hoc at the same time that Wilcox was appointed receiver. Fell was made a party only for the purpose of reaching property"
},
{
"docid": "21892306",
"title": "",
"text": "existence, and the temporary agency and receivership of Frost was ended when the property of the- corporation was transferred to Relfe and he became under the law entitled to the possession. Relfe is not an officer of the Missouri State court, but the person designated by law to take the property of any dissolved life insurance corporation of that State, and hold and dispose of it in trust for the use and benefit of creditors, and other parties interested. The law which clothed him with this trust was, in legal effect, part of the charter of the corporation. He was the Statutory successor of the corporation for the purpose of winding up its affairs. As such he represents the corporation at all times and places in all matters connected with his trust. He is the trustee of an express trust, with all the rights which properly belong to such a position. He is an officer of the State, and as such represents the State in its sovereignty while performing its public duties connected with the winding up of affairs of one of its insolvent and dissolved corporations. His authority does not come from the decree of the court, but from the statute. He appeared in Louisiana not by virtue of any appointment from the court but as the statutory successor of a corporation which the Court had in a legitimate way dissolved and put out of existence. He was, in fact, the corporation itself for all purposes of winding up its affairs. Relfe v. Rundle, supra, at 225. More important, however, is authoritative language from a Supreme Court case construing the same diversity statute with which we deal in our instant appeal: On the face of the record the railway company was entitled to a removal. The plaintiffs were citizens of Missouri, the State in which the suit was brought. The railway company was a citizen of the State of Kansas. There was, therefore, diverse citizenship, the defendant a citizen of another State than that in which the suit was brought petitioning for removal, and the removal appears perfect in"
},
{
"docid": "6081953",
"title": "",
"text": "duties connected with the winding up of the affairs of one of its insolvent and dissolved corporations, nevertheless it is to be noted that the status of Relfe was assailed upon the ground that he was an officer of the Missouri court, and as such without capacity to sue in a foreign jurisdiction. It is this issue which the Supreme Court obviously had in mind in its discussion. The case differs from the one before us in a very important particular. The Missouri law devolves the succession to the corporation upon an individual — selected, it is true, because of his official position, but nevertheless an individual as distinguished from a department of the state, as in the instant ease. As the court says, Relfe was, in fact, the corporation itself for all the purposes of winding up its affairs. The statutes of Nebraska lodge this power and duty in a department of the state itself; .while that department must act through individuals, no individual is given title to the assets of the defunct corporation, nor is substituted successor to the corporation for the purpose of liquidation. In our judgment this distinction is a substantial one; but, be that as it may, we think the Supreme Court in later cases has inferentially distinguished the Relfe Case, and has departed from it if it is to be interpreted as holding that a state may be made a party to a proceeding such as this through one of its officers or departments. In Lankford v. Platte Iron Works, 235 U. S. 461, 35 S. Ct. 173, 59 L. Ed. 316, it was held that “a suit by a depositor in a bank in Oklahoma against members of the state banking board and the bank commissioner of Oklahoma to compel payments from, distribution of, and assessments for, the depositors’ guaranty fund, is a suit against the state.” It was further held that “the fact that the fund is to be used to satisfy claims of beneficiaries does not take its administration from the officers of the state or subject them to judicial control.”"
},
{
"docid": "23427509",
"title": "",
"text": "to revenue collector (Salt Lake City v. Hollister, 118 U. S. 256, 6 Sup. Ct. 1055, 30 L. Ed. 176); fraud and deceit by a manufacturing company (Butler v. Watkins, 13 Wall. 457, 463, 20 L. Ed. 629); maintenance of a nuisance (Railroad v. Baptist Church, 108 U. S. 317, 2 Sup. Ct. 719, 27 L. Ed. 739); assault and battery by an express company (Southern Ex. Co. v. Platten, 36 C. C. A. 46, 93 Fed. 936); malicious prosecution by a manufacturing company (Copley v. Sewing Machine Co., 2 Woods, 494, Fed. Cas. No. 3213); boycotting by a corporation of which the members were mercantile firms’ (Hartnett v. Plumber’s Supply Assn., 169 Mass. 229, 47 N. E. 1002, 38 L. R. A. 194); malicious prqsecution by a savings bank (Reed v. Home Savings Bank, 130 Mass. 443, 39 Am. Rep. 468); false representations as to corporate stock by a manufacturing company (Dorsey Machine Co. v. McCaffrey, 139 Ind. 545, 38 N. E. 208, 47 Am. St. Rep. 290); false imprisonment by a national bank (Wachsmuth v. Nat. Bank, 96 Mich. 426, 56 N. W. 9, 21 L. R. A. 278); conspiracy between a bank through its president and a merchant to defraud those of whom latter purchased goods (Johnston Fife Hat Co. v. National Bank, 4 Okl. 17, 44 Pac. 192). It is also well settled that a corporation cannot escape liability upon a plea that the tortious acts were ultra vires. Railroad v. Quigley, 21 How. 202, 16 L. Ed. 73; Merchants’ Bank v. State Bank, 10 Wall. 604, 645, 19 L. Ed. 1008; County of Calhoun v. Emigrant Company, 93 U. S. 124, 130; 23 L. Ed. 826; National Bank v. Graham, 100 U. S. 699, 702, 25 L. Ed. 750; Salt Lake City v. Hollister, 118 U. S. 256, 6 Sup. Ct. 1055, 30 L. Ed. 176; Railway v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, 30 L. Ed. 146; Railway Co. v. Howard, 178 U. S. 153, 160, 20 Sup. Ct. 880, 44 L. Ed. 1015; Alexander v. Relfe, 74 Mo. 517; Zinc"
},
{
"docid": "14506782",
"title": "",
"text": "v. Gibson, supra, 75 U. S. 498, 19 L. Ed. 476; Casey v. Galli, 94 U. S. 673, 24 L. Ed. 168; United States v. Knox, 102 U. S. (12 Otto) 422, 26 L. Ed. 216; Richmond v. Irons, 121 U. S. 27, 7 S. Ct. 788, 30 L. Ed. 864; Schrader v. Bank, 133 U. S. 67, 10 S. Ct. 238, 33 L. Ed. 564; Bushnell v. Leland, 164 U. S. 684, 17 S. Ct. 209, 41 L. Ed. 598; Hightower v. Bank, 263 U. S. 351, 44 S. Ct. 123, 68 L. Ed. 334; Deweese v. Smith (8th C. C. A.) 106 F. 438, 66 L. R. A. 971. Moreover, upon the Comptroller appointing a receiver of a national bank, the receiver takes possession of the assets of the bank, and assumes control of its operation, not as agent of the bank, but as an officer of the United States. He executes bond to the United States for the faithful performance of his duties, and pays to the Treasurer of the United States the moneys collected, and makes to the Comptroller under whose supervision and control he disburses the funds to the credit of the insolvent bank, a full report of his acts and doings in the premises. In re Chetwood, Pet’r, 165 U. S. 443, 458, 17 S. Ct. 385, 41 L. Ed. 782; United States v. Weitzel, 246 U. S. 533, 38 S. Ct. 381, 62 L. Ed. 872, and eases cited in each opinion. Coming to the consideration of the second case, No. 2569, it is confined within a comparatively narrow compass, and really involves the question of the right to appeal from an order refusing to grant an injunction. What court should exercise this power — that is, the court that declined the injunction, or the one to which the appeal is proposed to be taken, and what is the authority of courts acting in such circumstances ? The relief asked is based upon a written motion made by the parties who failed to secure an injunction, to preserve the status quo, and stay"
}
]
|
190305 | "value of any mineral rights and that the vendor would not have agreed to the land sale absent the Government’s representation that Louisiana prescriptive law would not apply. Id., at 1006. The initial duration of the reservation was 10 years. If mineral operations took place for “an average of at least 50 days per year” during the final three years of the specified term, the servitude would be extended for an additional five-year period, but only with respect to “an area of twenty-five acres of land” around each well or mine producing or being drilled at the ""time of first extension.” Additional five-year extensions could be obtained “from time to time” to permit completion of active drilling operations. REDACTED aff’g 127 F. Supp. 439 (ED La. 1954). The 1957 remand was in effect a remand with instructions to abstain. It contemplated state court elucidation of various uncertainties surrounding Act 315, before this Court would attempt “to decide their relation to the issues in the case.” We do not, therefore, understand the respondents’ suggestion, echoed by Mr. Justice Stewart, that the 1957 remand foreshadowed final resolution of the Leiter Minerals controversy through state law. Indeed, the Court’s opinion stated that “[i]t need hardly be added that the state courts . . . can decide definitively only questions of state law that are not subject to overriding federal law.” 352 U. S. 220, 229-230. In Leiter Minerals, the Court of Appeals" | [
{
"docid": "15788706",
"title": "",
"text": "sale of March 14, 1935, between the United. States and the executors and trustees of the Estate of Joseph Leiter, Thomas Leiter, as heir of Joseph Leiter, on December 21, 1938, conveyed to the United States approximately 8,711 acres of land in Plaquemines Parish, Louisiana. The deed contained a mineral reservation identical to that contained in the earlier agreement of March 14, 1935. The text of the mineral reservation is set forth in full in the complaint and the following is a summary of its provisions: The vendor reserved until April 1, 1945, the right to mine and remove all oil, gas and other valuable minerals; provided, that if for three years prior to April 1, 1945, mineral operations were conducted to commercial advantage for an average of at least 50 days per year, the mineral rights were to be extended for a further period of five years, but the right so extended would be limited to an area of twenty-five acres around each well producing or being drilled or developed on April 1, 1945. This right to mine as previously stated was to be further extended for additional periods of five years whenever operations during the preceding five years had been on an average of 50 days per year during this period. It was further provided that “at the termination of any extended period in case the operation has not been carried on for the number of days stated, the right to mine shall terminate, and complete fee in the land become vested in the United States.” After setting forth these facts the complaint alleges that no mineral operations within the meaning of the reservation were ever conducted on the land by the vendor or the appellant or anyone acting under or through them. Then follow the allegations that on March 1, 1949, the United States executed mineral leases covering portions of the property conveyed to it by Leiter to Frank J. and Albert Lobrano; that the Lobranos conveyed the operating rights under the leases to The California Company; that The California Company has drilled and completed 80 producing"
}
]
| [
{
"docid": "22143610",
"title": "",
"text": "“expectancy” revocable at any time by after-enacted legislation. Respondents place heavy reliance on the opinion of the Louisiana Supreme Court in Leiter Minerals, where that court held that a mineral reservation for an indefinite duration was one traditionally subject to retroactive prescriptive change. But even if this rule of law could have been anticipated in 1937 and 1939, when the United States agreed to the mineral reservations in issue here, that the 1937 and 1939 reservations were of “indefinite” duration could not have been. Indeed, some 20 years later, in 1957, when Leiter Minerals came to this Court for the first time, we were not in a position to resolve the Government's contention that the Leiter reservation was one of specific duration. Uncertainty over this question of Louisiana law was the guiding force behind our remand in hopes of obtaining the view of the Louisiana Supreme Court. In its advisory opinion, the Louisiana Supreme Court did not decide whether the Leiter-type reservation was “indefinite” and subject to retroactive modification — to the extent that the Federal District Court, in Louisiana, subsequently concluded that the servitude in the Leiter reservation was not, under state law, freely revocable. In Leiter Minerals, one Court of Appeals judge dissented on this state law issue, and, with reason, the Government renews the issue before the Court in this case. Were the terms of the mineral reservations at issue here less detailed and specific, it might be said that the Government acknowledged and intended to be bound by unforeseeable changes in state law. But the mineral reservations before us are flatly inconsistent with the respondents’ suggestion that the United States in fact expected that these reservations would be wholly subject to retroactive modification. Nor, given the absence of any reliable contemporaneous Louisiana signpost and the absence even today of any final resolution of the pertinent state law question, can we say that the United States ought to have anticipated that its deed contained an empty promise. Respondents’ reliance on the Louisiana Supreme Court’s holding in its opinion in 1961 in Leiter Minerals assumes that a late-crystallizing"
},
{
"docid": "22143609",
"title": "",
"text": "of confiscating interests of the United States. Respondents point out that “[o]ne who owns land subject to an outstanding mineral reservation possesses no vested property interest [under Louisiana law], inasmuch as 'estates in reversion' are unknown to Louisiana law. Such an owner of the land possesses only a hope or expectancy to acquire these mineral rights; and . . . this hope or expectancy is not an object that can be legally sold.” Brief for Respondents 27, citing, e. g., Hicks v. Clark, 225 La. 133, 72 So. 2d 322 (1954). But whether Louisiana recognizes the interests at stake here as transferable interests in real property, as such, has no bearing on our conclusion that after-the-fact modification of explicit contractual terms would be adverse to the United States and contrary to the requirements of the Migratory Bird Conservation Act. It is also of no import that, under Louisiana law as it might be articulated in 1973, the United States acquired from respondents only the reversion to a mineral interest of indefinite duration, a “hope” or “expectancy” revocable at any time by after-enacted legislation. Respondents place heavy reliance on the opinion of the Louisiana Supreme Court in Leiter Minerals, where that court held that a mineral reservation for an indefinite duration was one traditionally subject to retroactive prescriptive change. But even if this rule of law could have been anticipated in 1937 and 1939, when the United States agreed to the mineral reservations in issue here, that the 1937 and 1939 reservations were of “indefinite” duration could not have been. Indeed, some 20 years later, in 1957, when Leiter Minerals came to this Court for the first time, we were not in a position to resolve the Government's contention that the Leiter reservation was one of specific duration. Uncertainty over this question of Louisiana law was the guiding force behind our remand in hopes of obtaining the view of the Louisiana Supreme Court. In its advisory opinion, the Louisiana Supreme Court did not decide whether the Leiter-type reservation was “indefinite” and subject to retroactive modification — to the extent that the"
},
{
"docid": "9743339",
"title": "",
"text": "In 1935, the United States, acting under the Migratory Bird Conservation Act, contracted to purchase almost 9000 acres of land in south Louisiana. The seller reserved the minerals for a ten-year period with provisions for extensions of five years so long as certain minimum use was made of the rights. In Louisiana the sale or reservation of mineral rights establishes only a servitude or right to extract the minerals. Servitudes prescribe in ten-years for non-use, a prescription that cannot be avoided by contract. In 1938, before the conveyance, the Louisiana legislature adopted a statute providing that prescription of mineral rights should not run against the State or United States. This legislation was replaced by Act 315 of 1940 restricting the exemption to the United States. The Louisiana court held that Act 315 would not apply if the deed provided for a mineral servitude for fixed term, but would apply if the term were indefinite. Leiter Minerals, Inc., successor to the seller of the land, filed suit in 1953 to have itself declared owner of the mineral rights. The United States then filed suit to quiet title. This Court, applying state law, held that the reservation was for an indefinite term. Here, therefore, we have the United States a party to the litigation concerning its rights under a contract entered into pursuant to a federal statute. Directly affected are national policies under that statute, policies relating to the conservation of our national resources, and settled policies of federal land acquisition. Presumably the Government paid more to obtain the favorable term. “It seems reasonable to assume a congressional intent that rights for which the Government has paid should not be taken away by operation of special state legislation directed against the United States.” Note, 78 Harv.L.Rev. 891, 895 (1965). Finally, the case involved state legal concepts exceptionally complex and foreign to common law concepts. I must say, if federal common law applies in the case now before this Court, Leiter Minerals, Inc. was an a fortiori case for federal common law. This Court held otherwise: “We have no doubt that the Congress"
},
{
"docid": "3769346",
"title": "",
"text": "Louisiana law. See Nebo Oil, 190 F.2d at 1006-08 (rejecting Contract Clause challenge to Act 315 because such rights are not vested). The Supreme Court held that this was not relevant to the federal choice-of-law determination. Little Lake, 412 U.S. at 602, 93 S.Ct. 2389 (\"It is also of no import that, under Louisiana law as it might be articulated in 1973, the United States acquired from respondents only the reversion to a mineral interest of indefinite duration, a 'hope’ or 'expectancy' revocable at any time by after-enacted legislation.”). . In the 1936 and 1938 transfers, the following language was used: \"This sale is made subject to the sale of oil, gas.... Subject to the above mineral sales and rights of any and all persons thereunder [the rights of Burton] there are specifically reserved to the vendor [Gulf Lumber Company] for a period of twenty-five (25) years from December 31, 1936, the right to mine....” Appellants claim that this attempted reversion of the possibility of prescription of the servitude belonging to Burton was invalid. See infra note 42. . Little Lake, 412 U.S. at 594, 93 S.Ct. 2389 (\"We deal with the interpretation of a land acquisition agreement.”). . U.S. Const. Art. I, § 10, cl. 1. . Nebo Oil, 190 F.2d at 1008. This Court has examined the constitutionality of Act 315 numerous times, in fact. In the saga of Leiter Minerals, Inc. v. United States, 329 F.2d 85 (5th Cir.1964) (Leiter Minerals II), which generated two opinions from this Court, one from the Supreme Court, and an advisory opinion from the Louisiana Supreme Court, we held that Clearfield Trust did not require the application of federal common law to a factually indistinguishable dispute about the retroactive application of Act 315. Id. at 90. However, the Supreme Court vacated our opinion as moot. United States v. Leiter Minerals, Inc., 381 U.S. 413, 85 S.Ct. 1575, 14 L.Ed.2d 692 (1965). We reaffirmed the holding of Leiter Minerals II in Little Lake, 453 F.2d at 362, which, of course, was subsequently reversed by the Supreme Court on Clearfield Trust grounds. Little"
},
{
"docid": "21364687",
"title": "",
"text": "shall be further extended from time to time for periods of five (5) years whenever operation during the preceding five (5) year period has been for an average of 50 days per year during this period, and “Provided that at the termination of the ten (10) year period of reservation, if not extended, or at the termination of any extended period in case the operation has not been carried on for the number of days stated, the right to mine shall terminate, and complete fee in the land become vested in the United States. “The reservation of the oil and mineral rights herein made for the original period of ten (10) years and for any extended period or periods in accordance with the above provisions shall not be affected by any subseqeunt conveyance of all or any of the aforementioned properties by the United States of America, but said mineral rights shall, subject to the conditions above above (sic) set forth, remain vested in the vendors.” The appellant, Leiter Minerals, Inc., hereafter Leiter, is the successor in interest to the right reserved by Thomas Leiter, and bases its claim upon that reservation. It concedes that no minerals have ever been produced by either Thomas Leiter or any successor in interest to the right established by that reservation. The United States issued four oil and gas leases to Frank J. Lo-brano and Allen Lobrano, who entered into operating agreements with The California Company, hereafter California. California completed the first producing well in January 1950. By May of 1954, 80 wells were producing, under which the royalty paid to the United States had then exceeded $3,500,000.00. Under the terms of the reservation, it would be clear that the right to mine terminated and complete fee in the land became vested in the United States but for the possible operation on the mineral right of two Louisiana statutes. Act No. 151 of 1938, in existence at the date of the deed, provided: “ * * * That when real estate is acquired by the United States of America, the State of Louisiana, or"
},
{
"docid": "21364705",
"title": "",
"text": "that event be in the course of nature, certain; if it be uncertain, it forms a condition.” The first paragraph of the reservation provided: “ * * * the right to enter upon said lands at any time for the purpose of mining and removing said oil, gas and minerals, said right, subject to the conditions hereinafter set forth, to expire April 1, 1945 * * But for the words “subject to the conditions hereinafter set forth” the servitude would have been established “for a certain time only.” The first condition was expressed in the next paragraph, as follows: “* * * if af fjjg termination of the ten (10) year period of reservation, it is found that such minerals, oil and gas are being operated and have been operated for an average of at least 50 days per year during the preceding three (3) year period to commercial advantage, then, and in that event the said right to mine shall be extended for a further period of five (5) years, but that the right so extended shall be limited to an area of twenty-five acres of land around each well or mine producing, and each well or mine being drilled or developed at time of first extension, to-wit: April 1, 1945.” It seems to us inescapable that that condition made the period for which the servitude was established indefinite and uncertain. At the time the parties entered into the contract it could not be known whether that condition would be met. The event was not “in the course of nature, certain”. Successive conditions, likewise indefinite and uncertain, are provided in the succeeding paragraph: “ * * * said right to mine as previously stated shall be further extended from time to time for periods of five (5) years whenever operation during the preceding five (5) year period has been for an average of 50 days per year during this period * * At the time the servitude was established, it might extend, according to the contract, for 10 years, 15 years, 20 years or until the minerals were exhausted."
},
{
"docid": "22143588",
"title": "",
"text": "so reserved or previously sold shall be imprescriptible.” Respondents contended that the 1940 enactment rendered inoperative the conditions set forth in 1937 and 1939 for the extinguishment of the reservations. The District Court concluded that the Court of Appeals’ prior decision in Leiter Minerals, Inc. v. United States, 329 F. 2d 85 (CA5 1964), required resolution of this case in favor of respondents, notwithstanding that we had vacated the Court of Appeals’ judgment in Leiter Minerals and remanded with instructions to dismiss the complaint as moot. 381 U. S. 413 (1965). The Court of Appeals affirmed, for the reasons stated in its Leiter Minerals holding. It rejected the Government’s Contract Clause and Supremacy Clause objections on the authority of United States v. Nebo Oil Co., 190 F. 2d 1003 (CA5 1951), and further rejected the Government’s argument that Act 315 was unconstitutionally discriminatory against the United States. The Court of Appeals observed “that the same principle applies to acquisitions by the State of Louisiana [La. Rev. Stat. § 9:5806 B], and that the act really does nothing more than place citizens of Louisiana in the same position as citizens of other states whose land has been purchased or condemned by the United States.” 453 F. 2d 360, 362 (1971). We reverse. I Litigation involving Act 315 began more than a quarter century ago. The Leiter Minerals case, upon which the Court of Appeals based its decision in this case, is only the principal holding in the area. The first case to arise involving Act 315, Whitney Nat. Bank v. Little Creek Oil Co., grew out of a 1932 sale of mineral rights that specified a 10-year period of prescription. The surface property was conveyed to the United States in 1936, subject to the 1932 mineral sale, and in 1947 the question arose whether Act 315 of 1940 had the effect of extending indefinitely the servitude created by the 1932 sale. The Louisiana Supreme Court held that Act 315 of 1940 was fully applicable to the 1936 transaction — “not because there is anything in the terms of the statute to"
},
{
"docid": "22143591",
"title": "",
"text": "the original 1932 sale of mineral rights. But the Court of Appeals upheld the application of Act 315 to the previously consummated transaction, stressing that reversionary estates are unknown in Louisiana law and that, as a result, the United States in 1936 took “nothing more than a mere expectation, or hope, based upon an anticipated continuance of the applicable general laws .... [This] mere expectancy . . . cannot be regarded as a vested right protected by the Constitution.” 190 F. 2d, at 1008-1009. In the Leiter Minerals litigation, retrospective application of Act 315 to a detailed, conditional mineral reservation was in issue for the first time. Leiter Minerals, Inc., succeeded to the interests of the Leiter family, which in 1938 had sold a substantial tract in Plaquemines Parish, Louisiana, to the United States. Leiter’s federal sale was subject to a mineral reservation in Leiter’s favor, providing in essence that the reservation would be extended for five years beyond its initial 10-year duration whenever commercially advantageous mineral extraction had occurred during 50 days of a defined period. At the expiration of any period during which the conditions for extension had not been met, the right to mine would terminate “and complete fee in the land becomes vested in the United States.” The mineral reservation expired by its own terms; the Government granted a valuable mineral lease; and Leiter invoked Act 315 to support its claim to a servitude of continuing duration. After a false start in the Louisiana courts, the ensuing litigation found its way into a federal forum. The United States sued in the Eastern District of Louisiana to quiet title and to enjoin the concurrent state court proceedings initiated by Leiter. The Court of Appeals affirmed an injunction granted by the District Court, and this Court agreed, but remanded to the Court of Appeals with instructions to secure an authoritative construction of Act 315 before proceeding to the difficult constitutional issues in the case. Leiter Minerals, Inc. v. United States, 352 U. S. 220, 229 (1957). Adhering to the terms of the remand, Leiter sought a declaratory judgment"
},
{
"docid": "22143617",
"title": "",
"text": "it is lost.\"’ Blister v. Wray Dickinson Co., Inc., 183 La. 562, 565, 164 So. 415, 416 (1935), cited in United States v. Nebo Oil Co., 90 F. Supp. 73, 80 (WD La. 1950). Because statutes of prescription are considered “remedial” the Louisiana courts have generally held that such statutes are applicable to causes of action which arose before the statute was enacted. United States v. Nebo Oil Co., supra, at 81-82, and cases cited. The Court of Appeals also emphasized that officials of the Department of Agriculture had represented to the Government’s vendor that “the prescriptive provisions of the Louisiana Civil Code would not apply to lands sold to the United States for national forest purposes.” 190 F. 2d 1003, 1005. The Court of Appeals noted that the price paid by the Government did not reflect the value of any mineral rights and that the vendor would not have agreed to the land sale absent the Government’s representation that Louisiana prescriptive law would not apply. Id., at 1006. The initial duration of the reservation was 10 years. If mineral operations took place for “an average of at least 50 days per year” during the final three years of the specified term, the servitude would be extended for an additional five-year period, but only with respect to “an area of twenty-five acres of land” around each well or mine producing or being drilled at the \"time of first extension.” Additional five-year extensions could be obtained “from time to time” to permit completion of active drilling operations. Leiter Minerals, Inc. v. United States, 224 F. 2d 381 (CA5 1955), aff’g 127 F. Supp. 439 (ED La. 1954). The 1957 remand was in effect a remand with instructions to abstain. It contemplated state court elucidation of various uncertainties surrounding Act 315, before this Court would attempt “to decide their relation to the issues in the case.” We do not, therefore, understand the respondents’ suggestion, echoed by Mr. Justice Stewart, that the 1957 remand foreshadowed final resolution of the Leiter Minerals controversy through state law. Indeed, the Court’s opinion stated that “[i]t need"
},
{
"docid": "22143592",
"title": "",
"text": "defined period. At the expiration of any period during which the conditions for extension had not been met, the right to mine would terminate “and complete fee in the land becomes vested in the United States.” The mineral reservation expired by its own terms; the Government granted a valuable mineral lease; and Leiter invoked Act 315 to support its claim to a servitude of continuing duration. After a false start in the Louisiana courts, the ensuing litigation found its way into a federal forum. The United States sued in the Eastern District of Louisiana to quiet title and to enjoin the concurrent state court proceedings initiated by Leiter. The Court of Appeals affirmed an injunction granted by the District Court, and this Court agreed, but remanded to the Court of Appeals with instructions to secure an authoritative construction of Act 315 before proceeding to the difficult constitutional issues in the case. Leiter Minerals, Inc. v. United States, 352 U. S. 220, 229 (1957). Adhering to the terms of the remand, Leiter sought a declaratory judgment in the Louisiana courts, which expressed some continuing doubt over the breadth of their responsibility for resolving the Leiter controversy on its own facts. Ultimately, the Louisiana Supreme Court took jurisdiction of the case and rendered a declaratory judgment limited to general elucidation of Act 315, without applying the Act to the specific terms of the Leiter mineral reservation itself. Leiter Minerals, Inc. v. California Co., 241 La. 915, 132 So. 2d 845 (1961). The Louisiana Supreme Court expressed its conclusions as follows: “First, that if the reservation in the Leiter deed is construed as establishing a mineral servitude for a definite, fixed, and specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied; and second, that if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional ex-tinguishment of the mineral servitude created, then"
},
{
"docid": "9743338",
"title": "",
"text": "also United States v. Taylor, 5 Cir. 1964, 333 F.2d 633, holding that federal law rather than state law applies to the interpretation of a disputes clause in a contract between private parties where there is a sufficient federal interest. The federal interest was in controlling and effecting prompt settlement of disputes between a sub-contractor and a prime contractor engaged in construction work for the Atomic Energy Commission. But see United States v. Yazell, 5 Cir. 1964, 334 F.2d 454, an action to recover on a note for a loan from the Small Business Administration. This Court held, surprisingly, perhaps, that the capacity of a married woman to contract with the federal government is controlled by state law, notwithstanding the effect such a decision might have on the administration of the national program for assistance to small business. Leiter Minerals, Inc. v. United States, 5 Cir. 1964, 329 F.2d 85; affirmed subject to abstention, 1957, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, cannot be reconciled with the majority’s holding in the instant case. In 1935, the United States, acting under the Migratory Bird Conservation Act, contracted to purchase almost 9000 acres of land in south Louisiana. The seller reserved the minerals for a ten-year period with provisions for extensions of five years so long as certain minimum use was made of the rights. In Louisiana the sale or reservation of mineral rights establishes only a servitude or right to extract the minerals. Servitudes prescribe in ten-years for non-use, a prescription that cannot be avoided by contract. In 1938, before the conveyance, the Louisiana legislature adopted a statute providing that prescription of mineral rights should not run against the State or United States. This legislation was replaced by Act 315 of 1940 restricting the exemption to the United States. The Louisiana court held that Act 315 would not apply if the deed provided for a mineral servitude for fixed term, but would apply if the term were indefinite. Leiter Minerals, Inc., successor to the seller of the land, filed suit in 1953 to have itself declared owner of the"
},
{
"docid": "22143590",
"title": "",
"text": "indicate that it was intended to have a retroactive application, but because of the general rule of law established by the jurisprudence of this court that laws of prescription and those limiting the time within which actions may be brought are retrospective in their operation.” 212 La. 949, 958, 33 So. 2d 693, 696 (1947). The court acknowledged the contention that if Act 315 were applied retroactively, it might be unconstitutional, but dismissed the constitutional issue without resolving it for failure to join the United States, a necessary party. Whitney Bank set the stage for the first federal court test of Act 315, as construed to have retroactive application, in United States v. Nebo Oil Co., supra, affg 90 F. Supp. 73 (WD La. 1950). There the United States brought suit against Nebo Oil (the successor to the 1932 mineral purchaser of the Whitney Bank case) to secure a declaratory judgment that the United States owned the acreage it purchased in 1936 subject only to the 10-year rule of prescription specified at the time of the original 1932 sale of mineral rights. But the Court of Appeals upheld the application of Act 315 to the previously consummated transaction, stressing that reversionary estates are unknown in Louisiana law and that, as a result, the United States in 1936 took “nothing more than a mere expectation, or hope, based upon an anticipated continuance of the applicable general laws .... [This] mere expectancy . . . cannot be regarded as a vested right protected by the Constitution.” 190 F. 2d, at 1008-1009. In the Leiter Minerals litigation, retrospective application of Act 315 to a detailed, conditional mineral reservation was in issue for the first time. Leiter Minerals, Inc., succeeded to the interests of the Leiter family, which in 1938 had sold a substantial tract in Plaquemines Parish, Louisiana, to the United States. Leiter’s federal sale was subject to a mineral reservation in Leiter’s favor, providing in essence that the reservation would be extended for five years beyond its initial 10-year duration whenever commercially advantageous mineral extraction had occurred during 50 days of a"
},
{
"docid": "22143618",
"title": "",
"text": "was 10 years. If mineral operations took place for “an average of at least 50 days per year” during the final three years of the specified term, the servitude would be extended for an additional five-year period, but only with respect to “an area of twenty-five acres of land” around each well or mine producing or being drilled at the \"time of first extension.” Additional five-year extensions could be obtained “from time to time” to permit completion of active drilling operations. Leiter Minerals, Inc. v. United States, 224 F. 2d 381 (CA5 1955), aff’g 127 F. Supp. 439 (ED La. 1954). The 1957 remand was in effect a remand with instructions to abstain. It contemplated state court elucidation of various uncertainties surrounding Act 315, before this Court would attempt “to decide their relation to the issues in the case.” We do not, therefore, understand the respondents’ suggestion, echoed by Mr. Justice Stewart, that the 1957 remand foreshadowed final resolution of the Leiter Minerals controversy through state law. Indeed, the Court’s opinion stated that “[i]t need hardly be added that the state courts . . . can decide definitively only questions of state law that are not subject to overriding federal law.” 352 U. S. 220, 229-230. In Leiter Minerals, the Court of Appeals stated that, although “Congress could make federal law applicable, ... it had no intention to do so when it merely authorized the contract by which the United States acquired the [Leiter] property.” The Court of Appeals expressed the view that “[s]tate law must govern in the absence of a federal statute,” and in support of its view it cited Swift v. Tyson, 16 Pet. 1, 18 (1842). Later in its opinion, the Court of Appeals stated that “since the United States had the right to invoke federal jurisdiction (28 U. S. C. § 1345), the ultimate responsibility for the interpretation of the reservation rests upon the federal courts. That interpretation, however, must be in accordance with State law 329 F. 2d 85, 90, 91. From these statements, it appears that the Court of Appeals considered that the"
},
{
"docid": "22143628",
"title": "",
"text": "Louisiana's freedom in this respect. Act 315 of 1940, however, as applied retroactively, had the avowed purpose and would have the clear effect of permitting taxation and conservation regulation of minerals which, quite possibly, would otherwise fall within the Federal Government’s exclusive domain. However parallel the two statutes in purpose and in their potential effect on actual mineral right ownership by the respective sovereigns, it is only Act 315 of 1940 that significantly affects interests of the United States in intergovernmental immunity. Wallis is readily distinguishable from the instant case; there the assignability of an oil and gas lease was in controversy between two private parties. That presented \"no significant threat to any identifiable federal policy or interest.” 384 U. S. 63, 68. Thus, I do not suggest, as the Court seems to think I do (ante, at 588 n. 7), that this controversy can necessarily be finally resolved through state law. Rather, my analysis is wholly consistent with the statement in Leiter Minerals, Inc. v. United States, 352 U. S. 220, 229-230 (1957), quoted by the Court today (ante, at 588 n. 7), that state courts “can decide definitively only questions of state law that are not subject to overriding federal law.” Mr. Justice Stewart, concurring in the judgment. I cannot agree with the Court that the mineral reservations agreed to by the United States and the respondents in 1937 and 1939 are governed by some brooding omnipresence labeled federal common law. It seems clear to me, as a matter of law, not a matter of “choice” or “borrowing,” that when anyone, including the Federal Government, goes into a State and acquires real property, the nature and extent of the rights created are to be determined, in the absence of a specifically applicable federal statute, by the law of the State. That was the very premise of the decision in Leiter Minerals, Inc. v. United States, 352 U. S. 220, 228-230 (1957), which remanded the case to the Court of Appeals with instructions to secure an authoritative construction of the state statute by the state courts, in order possibly"
},
{
"docid": "21364691",
"title": "",
"text": "the statute, especially with reference to problems of constitutionality. The District Court recognized the importance of the statute in deciding this case; it also recognized that a problem of interpretation was involved, that the statute cannot be read by him who runs. What are the situations to which the statute is applicable? Is the statute merely declaratory of prior Louisiana law? What are the problems that it was designed to meet? The answers to these questions are, or may be, relevant. Before attempting to answer them and to decide their relation to the issues in the case, we think it advisable to have an interpretation, if possible, of the state statute by the only court that can interpret the statute with finality, the Louisiana Supreme Court. The Louisiana declaratory judgment procedure appears available to secure such an interpretation, La.Rev.Stat., 1950, 13:4231 et seq., and the United States of course may appear to urge' its interpretation of the statute.. See Stanley v. Schwalby, 147 U.S. 508, 512-513 [13 S.Ct. 418, 37 L.Ed. 259]. It need hardly be added that the state courts in such a proceeding can decide definitively only questions, of state law that are not subject to> overriding federal law. “We therefore modify the judgment of the Court of Appeals to permit an interpretation of the state' statute to be sought with every expedition in the state court in conformity with this opinion.” Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 229, 230, 77 S.Ct. 287, 292, 293, 1 L.Ed.2d 267. The Louisiana courts rendered three published opinions, the last of which is presently of most importance. The Supreme Court of Louisiana summarized its advice to the federal courts as follows: “To summarize in conclusion, it is our view, and we hold: First, that if the reservation in the Leiter deed is ■construed as establishing a mineral ■servitude for a definite, fixed, and ■specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied ; and second, that if the reservation is construed as not establishing a servitude for a"
},
{
"docid": "21364706",
"title": "",
"text": "so extended shall be limited to an area of twenty-five acres of land around each well or mine producing, and each well or mine being drilled or developed at time of first extension, to-wit: April 1, 1945.” It seems to us inescapable that that condition made the period for which the servitude was established indefinite and uncertain. At the time the parties entered into the contract it could not be known whether that condition would be met. The event was not “in the course of nature, certain”. Successive conditions, likewise indefinite and uncertain, are provided in the succeeding paragraph: “ * * * said right to mine as previously stated shall be further extended from time to time for periods of five (5) years whenever operation during the preceding five (5) year period has been for an average of 50 days per year during this period * * At the time the servitude was established, it might extend, according to the contract, for 10 years, 15 years, 20 years or until the minerals were exhausted. The district court properly commented that, “[t]he Louisiana Supreme Court itself has told us that an ‘uncertain and indefinite duration’ is the hallmark of prescription,” and continued, “Here the hallmark is missing.” (204 F.Supp. at p. 567.) We cannot agree, but think that here the hallmark is inescapably present. The district court pointed out many ways in which the “periods of reservation” differed from statutory prescription: “ * * * There are other essential differences between the effect of these provisions and the rules of lib-erative prescription. These may be summarized: “First, under the present contract, a large area will be released from the servitude after the expiration of ten years regardless of use or production, for only 25 acres around each well are saved in any event. “Second, no use of the servitude short of actual production in paying quantities for at least fifty days a year for three years will preserve any part of the servitude beyond the primary term. “Third, only production in the last three years of the primary term will"
},
{
"docid": "21364692",
"title": "",
"text": "be added that the state courts in such a proceeding can decide definitively only questions, of state law that are not subject to> overriding federal law. “We therefore modify the judgment of the Court of Appeals to permit an interpretation of the state' statute to be sought with every expedition in the state court in conformity with this opinion.” Leiter Minerals, Inc. v. United States, 1957, 352 U.S. 220, 229, 230, 77 S.Ct. 287, 292, 293, 1 L.Ed.2d 267. The Louisiana courts rendered three published opinions, the last of which is presently of most importance. The Supreme Court of Louisiana summarized its advice to the federal courts as follows: “To summarize in conclusion, it is our view, and we hold: First, that if the reservation in the Leiter deed is ■construed as establishing a mineral ■servitude for a definite, fixed, and ■specified time which has elapsed, then Act 315 of 1940 is not applicable and cannot be constitutionally applied ; and second, that if the reservation is construed as not establishing a servitude for a fixed, definite and certain time, and if it is decided that the provisions of the reservation show that the parties were stipulating for a period of contractual prescription for the conditional extin-guishment of the mineral servitude ■created, then Act 315 of 1940 is applicable and constitutional. The interpretation of the contract is for the United States courts.” Leiter Minerals, Inc. v. California Co., La.1961, 241 La. 915, 132 So.2d 845, 854, 855. The federal district court then granted summary judgment in favor of the United States. This appeal is from that .judgment. The United States argues that the deed is explicit that under the admitted circumstances the right was “to expire” and “the right to mine shall terminate, and complete fee in the land become vested in the United States”; that such a contract is valid under federal law; and that the rights of the United States under the deed are governed by federal law, citing Clearfield Trust Co. v. United States, 1943, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838; United States v."
},
{
"docid": "21364685",
"title": "",
"text": "RIVES, Circuit Judge. The question presented is the right to mine and remove oil, gas, and other minerals from about 8711 acres of land in Plaquemines Parish, Louisiana, a right worth many millions of dollars. The mineral right was established in a deed dated December 21, 1938 from Thomas Leiter conveying the lands to the United States, and reserving the right to the minerals as follows: “The Vendor reserves from this sale the right to mine and remove, or to grant to others the right to mine and remove, all oil, gas and other valuable minerals which maybe deposited in or under said lands, and to remove any oil, gas or other valuable minerals from the premises; the right to enter upon said lands at any time for the purpose of mining and removing said oil, gas and minerals, said right, subject to the conditions hereinafter set forth, to expire April 1, 1945, it being understood, however, that the vendors will pay to the United States of America, 5% of the gross proceeds received by them as royalties or otherwise from all oil or minerals so removed from in or under the aforedescribed lands, until such time as the vendors shall have paid to the United States of America, the sum of $25,000 being the purchase price paid by said United States of America for the aforedescribed properties. “Provided, that if at the termination of the ten (10) year period of reservation, it is found that such minerals, oil and gas are being operated and have been operated for an average of at least 50 days per year during the preceding three (3) year period to commercial advantage, then, and in that event, the said right to mine shall be extended for a further period of five (5) years, but that the right so extended shall be limited to an area of twenty-five acres of land around each well or mine producing, and each well or mine being drilled or developed at time of first extension, to-wit: April 1, 1945. “Provided, that this said right to mine as previously stated"
},
{
"docid": "21364686",
"title": "",
"text": "them as royalties or otherwise from all oil or minerals so removed from in or under the aforedescribed lands, until such time as the vendors shall have paid to the United States of America, the sum of $25,000 being the purchase price paid by said United States of America for the aforedescribed properties. “Provided, that if at the termination of the ten (10) year period of reservation, it is found that such minerals, oil and gas are being operated and have been operated for an average of at least 50 days per year during the preceding three (3) year period to commercial advantage, then, and in that event, the said right to mine shall be extended for a further period of five (5) years, but that the right so extended shall be limited to an area of twenty-five acres of land around each well or mine producing, and each well or mine being drilled or developed at time of first extension, to-wit: April 1, 1945. “Provided, that this said right to mine as previously stated shall be further extended from time to time for periods of five (5) years whenever operation during the preceding five (5) year period has been for an average of 50 days per year during this period, and “Provided that at the termination of the ten (10) year period of reservation, if not extended, or at the termination of any extended period in case the operation has not been carried on for the number of days stated, the right to mine shall terminate, and complete fee in the land become vested in the United States. “The reservation of the oil and mineral rights herein made for the original period of ten (10) years and for any extended period or periods in accordance with the above provisions shall not be affected by any subseqeunt conveyance of all or any of the aforementioned properties by the United States of America, but said mineral rights shall, subject to the conditions above above (sic) set forth, remain vested in the vendors.” The appellant, Leiter Minerals, Inc., hereafter Leiter, is the"
},
{
"docid": "22143629",
"title": "",
"text": "by the Court today (ante, at 588 n. 7), that state courts “can decide definitively only questions of state law that are not subject to overriding federal law.” Mr. Justice Stewart, concurring in the judgment. I cannot agree with the Court that the mineral reservations agreed to by the United States and the respondents in 1937 and 1939 are governed by some brooding omnipresence labeled federal common law. It seems clear to me, as a matter of law, not a matter of “choice” or “borrowing,” that when anyone, including the Federal Government, goes into a State and acquires real property, the nature and extent of the rights created are to be determined, in the absence of a specifically applicable federal statute, by the law of the State. That was the very premise of the decision in Leiter Minerals, Inc. v. United States, 352 U. S. 220, 228-230 (1957), which remanded the case to the Court of Appeals with instructions to secure an authoritative construction of the state statute by the state courts, in order possibly to avoid deciding the federal constitutional issues. Other decisions of this Court lead to the same conclusion. United States v. Yazell, 382 U. S. 341, 352-358 (1966); United States v. Burnison, 339 U. S. 87, 89 (1950); Davies Warehouse Co. v. Bowles, 321 U. S. 144, 155 (1944); Sunderland v. United States, 266 U. S. 226, 232-233 (1924); Mason v. United States, 260 U. S. 545, 557-558 (1923); United States v. Fox, 94 U. S. 315, 320 (1877). Cf. Wallis v. Pan American Petroleum Corp., 384 U. S. 63 (1966). Since I think the Government’s property acquisitions here are controlled by state law, the decisive question for me is whether the retroactive application of Louisiana Act 315 of 1940 to those acquisitions is constitutional. The 1937 deed of purchase and the 1939 condemnation judg ment were unequivocal: the mineral rights were reserved to the former owners of the land for a 10-year period, after which time — if certain conditions regarding exploration and production were not met — the reserved rights were to terminate, and"
}
]
|
832478 | 1746. The debtor is imposed with a paramount duty to carefully consider all questions included in the Schedules and Statement and see that each is answered accurately and completely. See, e.g., Katz, supra, 203 B.R. at 233, citing In re Woodson, 839 F.2d 610, 614-17 (9th Cir.1988); REDACTED and Farmers Co-op. Ass’n v. Stunk, 671 F.2d 391, 395 (10th Cir.1982). As we indicated during the course of the trial, we were deeply offended by the Debt- or’s unilateral distribution of assets of the Business to the Son and himself, to the exclusion of creditors and the equal co-owner of the Business, the Wife. As of one year prior to the bankruptcy filing, i.e., as of November 14, 1995, the Business was manifested as a grossly insolvent corporation which was imminently prepared to cease operations. In such circumstances, the Debtor, officiously acting as the corporation’s sole managing director, thrust himself into the role of a fiduciary for the Business’s creditors. See Teasdale v. Robinson, 290 F.2d 108, 114 (8th | [
{
"docid": "18742825",
"title": "",
"text": "concerning these securities and the various corporations. The bankruptcy court held Cha- lik’s failure to list the securities on his bankruptcy schedules constituted a false oath knowingly and fraudulently made and barred a discharge. The court noted, however, that “there is no present indication that the concealed information would have or could have revealed assets available for creditors [but] that circumstance does not excuse the concealment of information, which is necessary to the investigation of a debtor’s financial condition. 4 Collier on Bankruptcy ¶ 727.04 (15th ed. 1984); In re Mascolo, 505 F.2d 274, 277-78 (1st Cir.1974); In re Robinson, 506 F.2d 1184, 1188 (2d Cir.1974).” This court has not addressed the precise question of whether a false oath regarding worthless assets constitutes a material omission and precludes discharge. The First and Second Circuits have decided the issue against the bankrupt. In re Robinson, 506 F.2d 1184, 1188 (2d Cir.1974), holds that “[e]ven though truthful responses to the questions propounded by the bank’s counsel would not have increased the value of the bankrupt’s estate, they were certainly material to discovering what, if any, assets Robinson may have had.” In re Mascolo, 505 F.2d 274, 277-78 (1st Cir.1974), holds that “[mjatters are material if pertinent to the discovery of assets, including the history of a bankrupt’s financial transactions.... Therefore, knowing and fraudulent omission of a bank account, whether or not it is closed at the time of filing, warrants the denial of discharge.” See also Morris Plan Industrial Bank v. Finn, 149 F.2d 591, 592 (2d Cir.1945). We glean further support from decisions of several circuits holding that detriment to the creditor need not be shown in order to bar discharge for making a false oath. Farmers Co-Operative Association v. Strunk, 671 F.2d 391, 396 (10th Cir.1982); United States v. O’Donnell, 539 F.2d 1233, 1237-38 (9th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 386, 50 L.Ed.2d 328 (1976); Willoughby v. Jamison, 103 F.2d 821, 824 (8th Cir.), cert. denied, 308 U.S. 588, 60 S.Ct. 111, 84 L.Ed. 492 (1939). The subject matter of a false oath is “material,” and thus"
}
]
| [
{
"docid": "7636906",
"title": "",
"text": "California’s statutory scheme preserving the board’s traditional management function in the case of corporate control transactions, we see no reason to conclude that the drafters of the Corporate Code intended to deprive a corporate board of the authority to agree to refrain from negotiating or accepting competing offers until the shareholders have considered an initial offer.”); Revlon, Inc., 506 A.2d at 185 (holding that the board’s decision to grant an asset option lock-up with a no-shop provision represented a breach of the directors’ duty of care under the circumstances of the case, and was “not entitled to the deference accorded it by the business judgment rule”). In the chapter 11 context, a debtor in possession stands in the shoes of a trustee and is a fiduciary for the estate and its creditors. 11 U.S.C. § 1107(a); see, e.g., Thompson v. Margen (In re McConville), 110 F.3d 47, 50 (9th Cir.1997) (stating that chapter 11 debtors in possession “were fiduciaries of their own estate owing a duty of care and loyalty to the estate’s creditors”), cert. denied, 522 U.S. 966, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997); Woodson v. Fireman’s Fund Ins. Co. (In re Woodson), 839 F.2d 610, 614 (9th Cir.1988) (“As debt- or in possession he is the trustee of his own estate and therefore stands in a fiduciary relationship to his creditors.”) (footnote omitted); Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 754 (9th Cir.1985) (“A debtor-in-possession has the duty to protect and conserve property in his possession for the benefit of creditors.”). When the debtor is a corporation, the debtor in possession’s fiduciary obligations to the corporation, its creditors and shareholders, fall upon the officers and directors. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 355, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985) (stating that “the debtor’s directors bear essentially the same fiduciary obligation to creditors and shareholders as would the trustee for a debtor out of possession”); Wolf v. Weinstein, 372 U.S. 633, 649, 83 S.Ct. 969, 10 L.Ed.2d 33 (1963) (observing that “so long as the Debtor remains in"
},
{
"docid": "18148689",
"title": "",
"text": "authority to bring “actions against the debtor’s officers and directors for breach of duty or misconduct.” Koch Ref. v. Farmers Union Cent. Exch., Inc., 831 F.2d 1339, 1348 (7th Cir.1987), citing Pepper v. Litton, 308 U.S. 295, 307, 60 S.Ct. 238, 84 L.Ed. 281 (1939); see also La. World Exposition v. Fed. Ins. Co., 858 F.2d 233, 246 (5th Cir.1988); Mixon v. Anderson (In re Ozark Rest. Equip. Co.), 816 F.2d 1222, 1225 (8th Cir.1987); Delgado Oil Co. v. Torres, 785 F.2d 857, 860 (10th Cir.1986). Moreover, neither our own decision in Williams, nor any of the other decisions upon which the Non-Settling Defendants principally rely, see Breeden v. Kirkpatrick & Lockhart LLP (In re Bennett Funding Group, Inc.), 336 F.3d 94 (2d Cir.2003); Hirsch v. Arthur Andersen & Co., 72 F.3d 1085(2d Cir.1995); E.F. Hutton & Co. v. Hadley, 901 F.2d 979 (11th Cir.1990); Mixon, 816 F.2d 1222, are inconsistent with this analysis, as none of these decisions hold that conduct causing an insolvent debtor corporation to expend its assets injures only the creditors and not the corporation. Third, the Non-Settling Defendants point out that if the Trustee' succeeds in holding the defendants liable and distributes the recovery to Boston Chicken’s creditors, some creditors might make out better than if they had brought their own direct fraud claims against the defendants, while others might fare worse. This may be true, but it is irrelevant to the question of the Trustee’s standing. As Nadhir himself explains in his brief, this supposed disparity is simply a function of the reality that any recovery in the Trustee’s Action would be distributed to creditors according to the priority schedule set forth in the Bankruptcy Code. This does not show that Boston Chicken itself was not injured by the defendants’ conduct. Fourth, the Underwriter Defendants argue that the Trustee is asserting claims barred by Caplin because the “Trustee’s damage claim here is measured in terms of Boston Chicken’s unpaid debt at the time of its bankruptcy filing, instead of any actual harm to the corporation.” In response, the Trustee cites dicta in several cases"
},
{
"docid": "9435403",
"title": "",
"text": "to Plaintiff and committed a defalcation. Therefore, the bankruptcy court determined that the Judgment was nondis-chargeable under § 523(a)(4). The nondischargeability judgment was entered on April 30, 1999, and Debtor timely appealed. II.ISSUES A. Whether the bankruptcy court erred in determining that Debtor was a fiduciary within the meaning of § 523(a)(4). B. Whether the bankruptcy court erred in determining that NIM was insolvent as of October 1,1995. III.STANDARD'OF REVIEW We review de novo the bankruptcy court’s determination that Debtor was a fiduciary within the meaning of § 523(a)(4). See Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986). We review the bankruptcy court’s factual determination that NIM was insolvent as of October 1, 1995 for clear error. See Sierra Steel, Inc. v. Totten Tubes, Inc. (In re Sierra Steel, Inc.), 96 B.R. 275, 277 (9th Cir. BAP 1989).' “A finding is clearly erroneous if, after review of the record, the Panel is left with' a definite and firm conviction that error has been committed.” Id. IV.DISCUSSION A. The Bankruptcy Court Did Not Err in Determining that Debtor Was a Fiduciary Within the Meaning of § 523(a)(1). The bankruptcy court held that Debtor was a fiduciary within the meaning of § 523(a)(4), which requires either an express or technical trust that arises before and independently of any wrongdoing. See Ragsdale, 780 F.2d at 796. The bankruptcy court determined that Debtor was a fiduciary because of Oregon’s “trust fund doctrine,” which provides that a director of an insolvent corporation that has ceased doing business is a trustee for the corporation’s creditors and must hold the corporate assets for the creditors’ benefit. See Gantenbein v. Bowles, 103 Or. 277, 203 P. 614, 619 (1922). The- bankruptcy court held that NIM was insolvent as of October 1, 1995 and that Debtor, as its sole director, was a fiduciary of.NIM’s creditors as of that date. Because the fiduciary duty arose independent of any wrongdoing by Debtor, the court held that it satisfied the requirements of § 523(a)(4). On appeal, Debtor argues that although Oregon law imposed a fiduciary duty on her, this fiduciary obligation"
},
{
"docid": "10246390",
"title": "",
"text": "made.” In re Martin, 88 B.R. 319, 323 (D.Colo.1988) (citing In re Chalik, 748 F.2d 616, 618 (11th Cir.1984)). “A material omission from the debt- or’s Chapter 7 schedules or a false answer on a statement of financial affairs may constitute a false oath for the purposes of § 727.” Martin, 88 B.R. at 323. A debtor has a paramount duty to consider all questions posed on a statement or schedule carefully and see that the question is answered completely in all respects. In re Sofro, 110 B.R. 989, 991 (Bankr.S.D.Fla.1990) (citing In re Burke, 83 B.R. 716 (Bankr.D.N.D.1988); In re Dias, 95 B.R. 419 (Bankr.N.D.Tex.1988). A matter is material “if it bears a relationship to the debtor’s business transactions or estate, or concerns discovery of assets, business dealings or existence or disposition of [debtor’s] property.” In re Montgomery, 86 B.R. 948, 956 (Bankr.N.D.Ind.1988) (citing Chalik, 748 F.2d at 618). This does not require that creditors be prejudiced by the false statements. Montgomery, 86 B.R. at 957; In re Calder, 93 B.R. 734, 738 (Bankr.D.Utah 1988), aff’d 907 F.2d 953 (10th Cir.1990). “[R]ather, the question of materiality depends on whether the false oath was pertinent to the discovery of assets or past transactions.” Montgomery, 86 B.R. at 957 (aff’d 907 F.2d 953 (10th Cir.1990)). The “knowingly and fraudulently” requirement of § 727(a)(4) “may be inferred from the debtor’s conduct or from the particular circumstances of the case.” Ingersoll, 106 B.R. at 292. See also Martin, 88 B.R. at 323; In re Bujak, 86 B.R. 30, 31 (Bankr.W.D.N.Y.1988); Matter of Kilson, 83 B.R. 198, 203 (Bankr.D.Conn.1988); In re Krich, 97 B.R. 919, 923 (Bankr.N.D.Ill.1988); Zahneis, 75 B.R. at 203. [A] reckless disregard of both the serious nature of the information sought and the necessary attention to detail and accuracy in answering may give rise to the level of fraudulent intent necessary to bar a discharge. Martin, 88 B.R. at 324 (quoting In re Diodati, 9 B.R. 804, 808 (Bankr.D.Mass.1981)). See also Zahneis, 75 B.R. at 203. The burden of proof under § 727(a)(4) is on the plaintiff. In re Ingersoll, 106"
},
{
"docid": "9435406",
"title": "",
"text": "because the duty arises independently of any wrongdoing); Woodworking Enters., Inc. v. Baird (In re Baird), 114 B.R. 198, 203-04 (9th Cir. BAP 1990) (holding that Arizona law imposes a fiduciary duty within the meaning of § 523(a)(4) by requiring certain sums paid to contractors to be held in trust for the benefit of subcontractors or suppliers because the trust exists independent of and prior to any wrongdoing). Although federal law determines whether the debtor is a fiduciary, state law must be consulted to determine whether a trust exists. Ragsdale, 780 F.2d at 796. Oregon has adopted the trust fund doctrine which provides that directors of a corporation owe its creditors a fiduciary duty if either of the following occurs: (1) the corporation suspends its business and becomes insolvent or (2) the corporation’s assets are placed in the possession of the court and it ceases to be a going concern. See Gantenbein, 203 P. at 617. Once that occurs, the corporation’s directors hold its assets in trust for equal distribution among its creditors and “cannot use those assets to prefer themselves as creditors ... to the prejudice of general creditors.” Id. at 619. Directors who fulfill their fiduciary duties by preserving the corporation’s assets and properly distributing them to its creditors will not be subject to liability. However, a director who breaches this fiduciary duty by misappropriating corporate assets for personal gain will be held liable under the trust fund doctrine. Here, once NIM became insolvent and ceased doing business, the trust fund doctrine imposed a fiduciary duty upon Debtor to hold NIM’s assets in trust for the benefit of its creditors and to distribute those assets equally. The fiduciary duty was imposed prior to any defalcation, and no personal liability arose until Debtor breached this fiduciary obligation. Because the fiduciary duty arose independently of any wrongdoing and existed prior to and without reference to it, we hold that the bankruptcy court properly concluded that the trust fund doctrine imposes a fiduciary obligation upon directors within the meaning of § 523(a)(4). B. The Bankruptcy Court Did Not Err in Including"
},
{
"docid": "18534490",
"title": "",
"text": "are two prerequisites for a court to find a debtor was a fiduciary under Section 523(a)(4). One is that the relationship is the result of an express or technical trust which is not created in response to some wrongdoing. E.g., In re Amman, 73 B.R. 156, 167 (Bankr.D.Colo.1986). The second is that the fiduciary relationship must be shown to exist prior to the creation of the debt in controversy. In re Romero, 535 F.2d 618, 621 (10th Cir.1976) (citing Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934)). The concept of fiduciary is to be narrowly defined as a matter of federal law, however, state law is to be consulted to determine when a trust exists under this section. In re Stone, 94 B.R. 298, 302 (S.D.N.Y.1988); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir.1986), The Court acknowledges that in some cases an express technical trust can be imposed by virtue of a state’s common law. Ragsdale, supra; In re Napoli, 82 B.R. 378, 382 (Bankr.E.D.Pa.1988). Under Colorado common law, a trust relationship is created between directors of an insolvent corporation and its creditors. As such the directors owe a duty to the creditors not to divest corporate property for their own benefit and thereby defeat a corporate creditor’s claim. Rosebud Corp., 561 P.2d at 372. The duty created is unambiguous and failure to comply results in personal liability for malfeasance. 3A W. Fletcher, Cyclopedia of Corporations Section 1185. The district court found the actions of the debtors breached the common law fiduciary duty owed to Bay 511. This was not a fiduciary relationship created in response to some wrongdoing. The basis of Bay 511’s claim and resulting judgment is that DCR was insolvent at the time that the debtors transferred DCR’s business assets to other entities owned by the debtors. The Court must determine if this common law trust relationship contains the typical attributes of a trust recognized under Section 523(a)(4). This is not an express trust involving a declaration of trust, a clearly defined trust and intent to create a trust"
},
{
"docid": "9435405",
"title": "",
"text": "is not the narrow obligation required by § 523(a)(4). Debtor contends that the fiduciary obligation arose only after NIM distributed money to Debtor after October 1,1995, not prior to that date, and that she therefore was not a fiduciary within the meaning of § 523(a)(4). We disagree. Section 523(a)(4) excepts from discharge any debt “for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). Whether a debtor is a fiduciary within the meaning of § 523(a)(4) is a question of federal law and is narrowly interpreted. See Ragsdale, 780 F.2d at 796. The Ninth Circuit has held that “[t]he trust giving rise to the fiduciary relationship must be imposed pri- or to any wrongdoing; the debtor must have been a ‘trustee’ before the wrongdoing and without reference to it. These requirements eliminate constructive, resulting or implied trusts.” Id. (citation omitted); see also Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir.1996) (holding that Arizona law imposes upon business partners a fiduciary duty within the meaning of § 523(a)(4) because the duty arises independently of any wrongdoing); Woodworking Enters., Inc. v. Baird (In re Baird), 114 B.R. 198, 203-04 (9th Cir. BAP 1990) (holding that Arizona law imposes a fiduciary duty within the meaning of § 523(a)(4) by requiring certain sums paid to contractors to be held in trust for the benefit of subcontractors or suppliers because the trust exists independent of and prior to any wrongdoing). Although federal law determines whether the debtor is a fiduciary, state law must be consulted to determine whether a trust exists. Ragsdale, 780 F.2d at 796. Oregon has adopted the trust fund doctrine which provides that directors of a corporation owe its creditors a fiduciary duty if either of the following occurs: (1) the corporation suspends its business and becomes insolvent or (2) the corporation’s assets are placed in the possession of the court and it ceases to be a going concern. See Gantenbein, 203 P. at 617. Once that occurs, the corporation’s directors hold its assets in trust for equal distribution among its creditors and “cannot"
},
{
"docid": "18498359",
"title": "",
"text": "important or relevant. Rather, a debtor is obliged to completely and accurately list all property of every kind and nature, tangible and intangible, legal and equitable, which may comprise his bankruptcy estate, and to respond truthfully to all questions in the Schedules and Statement of Financial Affairs. “The determination of relevance and importance of the question is not for the debtor to make. It is the debtor’s role simply to consider the question carefully and answer it completely and accurately.” In re Mazzola, 4 B.R. 179, 182 (Bankr. D.Mass.1980). In In re Chalik, 748 F.2d 616 (11th Cir.1984), the Court affirmed the denial of the debtor’s discharge based on his omission from his bankruptcy schedules of interests in certain corporations. The Court accepted the Bankruptcy Court’s finding that while “there [was] no present indication that the concealed information would have or could have revealed assets available for creditors ... that circumstance does not excuse the concealment of information, which is necessary to the investigation of a debtor’s financial condition.” In re Mascolo, 505 F.2d 274, 277-78 (1st Cir.1974); In re Robinson, 506 F.2d 1184, 1188 (2d Cir.1974). See also, 4 Collier on Bankruptcy, ¶ 727.04 (15th ed. 1994). The denial of a discharge will not be avoided by debtor’s assertion that omitted or falsely stated information concerned a “worthless business relationship or holding,” such defense being categorized as “specious.” In re Chalik, 748 F.2d 616, 618 (citing Diorio v. Kreisler-Borg Construction Co., 407 F.2d 1330 (2d Cir.1969)). Accordingly, Sicari’s failure to disclose his interest in Sicari Associates constitutes a false oath under § 727(a)(4)(A). Plaintiff has also presented evidence sufficient to establish that Sicari knew the statements made in his bankruptcy Schedules and Statement of Financial Affairs were false. After transfer of the Kingston and Virgo properties, Sicari continued to be involved in the control and maintenance of those properties. Rental income from the properties continued to be received at his address by his representative and was diverted to various accounts in a manner inconsistent with the rent payments. Rental income from the Medical Building and the Widmark- Farm property"
},
{
"docid": "1128177",
"title": "",
"text": "Id. Material matters include those “concernpng] the existence and disposition of the debtor’s property.” Id. at 252 (citing In re Chalik, 748 F.2d 616, 618 (11th Cir.1984) (per curiam) (“The subject matter of a false oath is ‘material,’ and thus sufficient to bar discharge, if it bears a relationship to the bankrupt’s business transactions or estate, dr concerns the discovery of assets, business dealings, or the existence and disposition of his property.”)). The Williamson court observed the inherent problems in ascertaining whether a debtor has acted with fraudulent intent. Id. at 252. Usually the debtor will be the only person to testify directly as to his own intent, and “[bjecause a debtor is unlikely to testify directly that his intent was fraudulent, the courts may deduce fraudulent intent from all the facts and circumstances of a case.” Id. (quoting In re Devers, 759 F.2d 751, 754 (9th Cir.1985)). See also Farmers Co-op. Ass’n v. Strunk, 671 F.2d 391, 395 (10th Cir.1982) (“Fraudulent intent ... may be established by circumstantial evidence, or by inferences drawn from a course of conduct.”). Moreover, courts have recognized that a “reckless indifference to the truth” is the functional equivalent of fraud. See Tully, 818 F.2d at 112; Diorio v. Kreisler-Borg Constr. Co. (In re Diorio), 407 F.2d 1330, 1331 (2d Cir.1969) (per curiam) (“Statements called for in the schedules, or made under oath in answer to questions propounded during the bankrupt’s examination or otherwise, must be regarded as serious business; reckless indifference to the truth ... is the equivalent of fraud.”); Guardian Indus. Prods. Inc. v. Diodati (In re Diodati), 9 B.R. 804, 807-08 (Bankr.D.Mass.1981) (“[Cjourts have held that a reckless disregard of both the serious nature of the information sought and the necessary attention to detail and accuracy in answering may rise to the level of the fraudulent intent necessary to bar a discharge.”)- With these standards as the criterion, we turn next to an examination of the Debtor’s “Statement of Financial Affairs For Debtor Not Engaged In Business,” which the Debtor signed under penalty of perjury indicating that his statement was true and"
},
{
"docid": "21273956",
"title": "",
"text": "they had prepetition required a finding of false oath when debtors failed to pierce the corporate veil of their own accord and failed to list assets of their purported alter ego). . Bonham, 224 B.R. at 116; . Cf. Utah Code Ann. § 48-2c-602(l) (imposing joint and several liability on \"[a]ll persons who assume to act as a company without complying with this chapter”). . 11 U.S.C. § 727(a)(4)(A). . Self, 325 B.R. at 245; see also Job v. Calder (In re Calder), 907 F.2d 953 (10th Cir.1990); Farmers Co-op. Ass’n of Talmage, Kansas v. Strunk (In re Strunk), 671 F.2d 391 (10th Cir.1982); Chalik v. Moorefield (In re Chalik), 748 F.2d 616 (11th Cir.1984); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174 (5th Cir.1992); Korte v. IRS (In re Korte), 262 B.R. 464 (8th Cir. BAP 2001) (§ 341 meetings). . See Dana Federal Credit Union v. Holt (In re Holt), 190 B.R. 935, 939 (Bankr.N.D.Ala.1996) (deposition testimony); Richter v. Gordon (In re Gordon), 83 B.R. 78 (Bankr.S.D.Fla.1988) (other hearings during the course of the bankruptcy case). . Self, 325 B.R. at 245; Chalik, 748 F.2d at 618. . Id. (internal quotes and citations omitted). . Brown, 108 F.3d at 1294. . Id. at 1294-95. . Boroff v. Tully (In re Tully), 818 F.2d 106, 112 (1st Cir.1987); see also Jordan v. Bren (In re Bren), 303 B.R. 610 (8th Cir. BAP 2004) (“A reckless disregard for both the serious nature of the information sought and the necessary attention to detail and accuracy in answering may rise to the level of fraudulent intent necessary to bar a discharge.”). . Self, 325 B.R. at 248. . See, e.g,, Chalik, 748 F.2d at 617-18 (finding omission of valueless securities to be material for purposes of § 727(a)(4)(A)); Strunk, 671 F.2d at 396; Beaubouef, 966 F.2d at 178. . Self, 325 B.R. at 249 (quoting Chalik, 748 F.2d at 618); see also In re Jamison, 329 B.R. 743, 752 (Bankr.D.Kan.2005) (citing Calder and Chalik). . Beaubouef, 966 F.2d at 178 (\"Creditors are entitled to judge for themselves what will benefit, and"
},
{
"docid": "14739227",
"title": "",
"text": "severe in its effect than excepting a single debt from discharge under Section 523. Because of this severity ... it is this Court’s view that the clear and convincing standard must apply in establishing proof if nondischarge-ability.” Id. Curiously, neither the District Court in Camacho, nor the Bankruptcy Court in Booth, distinguish Farmers Co-op. Ass’n of Talmage, Kansas v. Strunk, supra, 671 F.2d 391, 395 (10th Cir.1982), for the latter’s holding that a mere preponderance of the evidence is sufficient to establish a false oath under Section -14(c) of the Bankruptcy Act’s predecessor of § 727. Booth did, however, cite Strunk for the proposition that “[a] finding of actual intent can be based on circumstantial evidence or on inferences drawn from the debtor’s conduct.” Id., 70 B.R. at 395. See also, Sprague, Thall & Albert v. Woerner (In re Woerner), 66 B.R. 964, 972 n. 9 (Bkrtcy.E.D.Pa.1986), aff'd, CA 86-7324 (E.D.Pa. April 28, 1987), which held clear and convincing was the appropriate standard under 727(a)(4) and criticized the Second Circuit’s preponderance holding in In re Robinson, supra, 506 F.2d 1184 (2d Cir.1974) for lack of discussion or analysis where fraud is alleged as a “mere affirmation of the Bankruptcy Referee’s finding.” Accord, McNulty v. Sullaway (In re Sullaway), 66 B.R. 320, 321 (Bkrtcy.D.Mass. 1986). The McNulty Court applied a clear and convincing standard to find the creditor had established a denial of discharge for knowingly and willfully making a false oath under § 727(a)(4)(A). See also, Fox v. Cohen (In re Cohen), 47 B.R. 871, 874-75 (Bkrtcy.S.D.Fla.1985), where the creditor failed to establish by “clear, cogent and convincing evidence” that the debtor conducted himself in any manner as to warrant a denial of discharge under §§ 727(a)(2), (3), (4), and (5). But see, Taylor v. Lineberry (In re Lineberry), 55 B.R. 510, 513 (Bkrtcy.W.D.Ky.1985) (The standard of explanation by which a debtor explains a loss or deficiency is one of reasonableness or credibility.) The Taylor Court also joined the clear and convincing camp on the creditor’s burden. See, In re Schnabel, 61 F.Supp. 386, 395 (D.Minn.1945), citing, Remmers v. Bank,"
},
{
"docid": "10246389",
"title": "",
"text": "practice of throwing them away. Especially in view of the post-petition destruction of his checking account records, this practice cannot be justified under all the circumstances of the case. Where the destruction of pertinent financial records is unexplained, the debtor is not entitled to receive the benefits of a discharge. Hyder, 38 B.R. at 471, (citing Rosenberg v. Bloom, 99 F.2d 249 (9th Cir.1938); In re Hirsch, 14 B.R. 59 (Bankr.S.D.Fla.1981); In re Lowe, 25 B.R. 86 (Bankr.D.S.C.1982). More significant than the debtor’s record keeping practices is the challenge pursuant to § 727(a)(4). Plaintiffs contend that the debtor has, “knowingly and fraudulently, in or in connection with the case — made a false oath or account.” 11 U.S.C. § 727(a)(4)(A). This claim is based upon inaccuracies contained in the debtor’s bankruptcy schedules and statement of affairs. To deny a discharge under § 727(a)(4) requires that the debtor “(1) ... made a false oath or account in connection with his or her bankruptcy proceeding; and (2) that such false oath or account was knowingly and fraudulently made.” In re Martin, 88 B.R. 319, 323 (D.Colo.1988) (citing In re Chalik, 748 F.2d 616, 618 (11th Cir.1984)). “A material omission from the debt- or’s Chapter 7 schedules or a false answer on a statement of financial affairs may constitute a false oath for the purposes of § 727.” Martin, 88 B.R. at 323. A debtor has a paramount duty to consider all questions posed on a statement or schedule carefully and see that the question is answered completely in all respects. In re Sofro, 110 B.R. 989, 991 (Bankr.S.D.Fla.1990) (citing In re Burke, 83 B.R. 716 (Bankr.D.N.D.1988); In re Dias, 95 B.R. 419 (Bankr.N.D.Tex.1988). A matter is material “if it bears a relationship to the debtor’s business transactions or estate, or concerns discovery of assets, business dealings or existence or disposition of [debtor’s] property.” In re Montgomery, 86 B.R. 948, 956 (Bankr.N.D.Ind.1988) (citing Chalik, 748 F.2d at 618). This does not require that creditors be prejudiced by the false statements. Montgomery, 86 B.R. at 957; In re Calder, 93 B.R. 734, 738 (Bankr.D.Utah"
},
{
"docid": "7654457",
"title": "",
"text": "obligations in the future was destroyed. Not only were the means to continue its business taken away from the Debtor, Nielson caused only approximately 50% of the value of the assets to be paid to the Debtor for the expirations. Furthermore, this value which N-F claims to have paid came from the continuing operations of the agency, which is money belonging to the Debtor in the first place and cannot be viewed as value paid by N-F. In essence, Nielson attempted to derive a private profit from the transfer of the expi-rations of the Debtor to N-F. The transfer left the Debtor not only without fair value being paid for these assets but also the clear inability to continue to meet the obligations to its creditors. The value of N-F, previously a shell corporation owned by Nielson, was enhanced by the transfer of these valuable assets to it. N-F virtually clothed itself with the trade name and operating history of a longstanding, historically viable business entity, leaving the Debtor, and the creditors in its wake. This willful misapplication of corporate assets by Niel-son, who was still an officer of the Debtor owing it a fiduciary duty, was constructive fraud per se, and resulted in the inevitable consequence of bankruptcy of the Debtor. Nielson has attempted to immunize these assets from the reach of the creditors herein. His participation in the transfer of the Debtor’s property while the Debtor was insolvent to another corporation which he controlled is a breach of the fiduciary duties Nielson owed to the Debtor. See, e.g., Guaranty Trust & Savings Bank v. United States Trust Co., 89 Fla. 324, 103 So. 620 (1925) (directors of an insolvent corporation occupy a fiduciary relationship toward creditors and are charged with managing the corporation’s assets for the best interests of creditors) citing Beach v. Williamson, 78 Fla. 611, 83 So. 860, 9 A.L.R. 1438 (1919); Skinner v. Hulsey, 103 Fla. 713, 138 So. 769 (1931). See also Robinson v. Watts Detective Agency, 685 F.2d 729, 736-737 (1st Cir.1982), cert. denied, 459 U.S. 1105, 103 S.Ct. 728, 74 L.Ed.2d 953"
},
{
"docid": "9435404",
"title": "",
"text": "Determining that Debtor Was a Fiduciary Within the Meaning of § 523(a)(1). The bankruptcy court held that Debtor was a fiduciary within the meaning of § 523(a)(4), which requires either an express or technical trust that arises before and independently of any wrongdoing. See Ragsdale, 780 F.2d at 796. The bankruptcy court determined that Debtor was a fiduciary because of Oregon’s “trust fund doctrine,” which provides that a director of an insolvent corporation that has ceased doing business is a trustee for the corporation’s creditors and must hold the corporate assets for the creditors’ benefit. See Gantenbein v. Bowles, 103 Or. 277, 203 P. 614, 619 (1922). The- bankruptcy court held that NIM was insolvent as of October 1, 1995 and that Debtor, as its sole director, was a fiduciary of.NIM’s creditors as of that date. Because the fiduciary duty arose independent of any wrongdoing by Debtor, the court held that it satisfied the requirements of § 523(a)(4). On appeal, Debtor argues that although Oregon law imposed a fiduciary duty on her, this fiduciary obligation is not the narrow obligation required by § 523(a)(4). Debtor contends that the fiduciary obligation arose only after NIM distributed money to Debtor after October 1,1995, not prior to that date, and that she therefore was not a fiduciary within the meaning of § 523(a)(4). We disagree. Section 523(a)(4) excepts from discharge any debt “for fraud or defalcation while acting in a fiduciary capacity.” 11 U.S.C. § 523(a)(4). Whether a debtor is a fiduciary within the meaning of § 523(a)(4) is a question of federal law and is narrowly interpreted. See Ragsdale, 780 F.2d at 796. The Ninth Circuit has held that “[t]he trust giving rise to the fiduciary relationship must be imposed pri- or to any wrongdoing; the debtor must have been a ‘trustee’ before the wrongdoing and without reference to it. These requirements eliminate constructive, resulting or implied trusts.” Id. (citation omitted); see also Lewis v. Scott (In re Lewis), 97 F.3d 1182, 1186 (9th Cir.1996) (holding that Arizona law imposes upon business partners a fiduciary duty within the meaning of § 523(a)(4)"
},
{
"docid": "21273951",
"title": "",
"text": "materially hinder or delay their ability to obtain repayment.”). Cf. Mill Creek Lumber & Supply Co. v. Stripling, 135 B.R. 133 (N.D.Okla.1990), aff'd 947 F.2d 954 (10th Cir.1991) (rejecting the argument that “the transferred property must have some value” as a prerequisite to a finding of fraudulent intent). . See Marine Midland Bus. Loans, Inc. v. Carey (In re Carey), 938 F.2d 1073, 1077 (10th Cir.1991); Job v. Calder (In re Calder), 907 F.2d 953, 955-56 (10th Cir.1990) (citing Farmers Co-op. Ass’n of Talmage, Kansas v. Strunk (In re Strunk), 671 F.2d 391, 395 (10th Cir.1982)). . Matus, 303 B.R. at 672. . Id. . See, e.g., Brown, 108 F.3d at 1293 (\"The mere fact that a transaction occurred soon before the filing of bankruptcy does not necessarily support the inference of fraud. The circumstances of the transaction must be examined.”) (internal citation omitted); Moore v. Lang (In re Lang), 246 B.R. 463, 469 (Bankr.D.Mass.2000) (\"But no debtor will admit to an improper intent. The Court must therefore consider the surrounding facts and circumstances and draw inferences of a debt- or's actual intent from that debtor’s action.”); Cadle Co. v. Stewart (In re Stewart), 263 B.R. 608, 611 (10th Cir. BAP 2001) (\"The [§ 727] cases ... are peculiarly fact specific, and the activity in each situation must be viewed individually.”). . First Savings Bank v. Turner (In re Turner), 335 B.R. 755, 761-62 (Bankr.D.N.M.2005); see also Salomon v. Kaiser (In re Kaiser), 722 F.2d 1574, 1582-83 (2d Cir.1983) (enumerating various badges of fraud). The Tenth Circuit has stated that a \"business purpose,” even one of potentially questionable ethics, may either argue against or completely negate a finding of bad intent under § 727(a)(2). See Brown, 108 F.3d at 1293; In re Thurman, 901 F.2d 839, 842 (10th Cir.1990). Flowever, \"business purposes” cannot be confused with nor can they override the Bankruptcy Code's condemnation of statutorily prohibited transfers. And bare desire to avoid having one's income garnished serves no manner of business purpose. . Lang, 246 B.R. at 469 n. 9. . Womble, 289 B.R. at 854. . See Stewart,"
},
{
"docid": "7636907",
"title": "",
"text": "denied, 522 U.S. 966, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997); Woodson v. Fireman’s Fund Ins. Co. (In re Woodson), 839 F.2d 610, 614 (9th Cir.1988) (“As debt- or in possession he is the trustee of his own estate and therefore stands in a fiduciary relationship to his creditors.”) (footnote omitted); Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 754 (9th Cir.1985) (“A debtor-in-possession has the duty to protect and conserve property in his possession for the benefit of creditors.”). When the debtor is a corporation, the debtor in possession’s fiduciary obligations to the corporation, its creditors and shareholders, fall upon the officers and directors. See Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 355, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985) (stating that “the debtor’s directors bear essentially the same fiduciary obligation to creditors and shareholders as would the trustee for a debtor out of possession”); Wolf v. Weinstein, 372 U.S. 633, 649, 83 S.Ct. 969, 10 L.Ed.2d 33 (1963) (observing that “so long as the Debtor remains in possession, it is clear that the corporation bears essentially the same fiduciary obligation to the creditors as does the trustee for the debtor out of possession”) (emphasis in original); Holta v. Zerbetz (In re Anchorage Nautical Tours, Inc.), 145 B.R. 637, 643 (9th Cir.BAP1992) (“When the debtor is a corporation, corporate officers and directors are considered to be fiduciaries both to the corporate debtor in possession and to the creditors.”). Corporate officers, as fiduciaries, must protect and preserve estate assets held in trust for the benefit of creditors. Holta, 145 B.R. at 643; Hirsch v. Penn. Textile Corp. (In re Centennial Textiles, Inc.), 227 B.R. 606, 612 (Bankr.S.D.N.Y.1998) (“As fiduciaries, the debtor in possession and its managers are obligated to treat all parties to the case fairly, maximize the value of the estate, and protect and conserve the debtor’s property.”) (internal citations omitted). Not surprisingly, courts have scrutinized deal protection measures, such as break-up fees, no-shop clauses, and window shop provisions, built into asset sales for which approval is sought by a chapter 11 debtor"
},
{
"docid": "4702788",
"title": "",
"text": "extrinsic to the debtor’s conduct and which are indicative of such actual fraudulent intent. Bank of Pennsylvania v. Adlman (In re Adlman), 541 F.2d at 1004. Hence, a transfer or concealment of assets, without more, is not enough to deny a discharge; there must be a showing of actual intent to hinder, delay or defraud creditors. In re Irving, 27 B.R. 943, 945-946 (Bankr.E.D.N.Y.1983); In re Rubin, 12 B.R. 436 (Bankr.S.D.N.Y.1981). However, because a debtor generally does not admit the existence of such actual intent, this element must be established through inferences that might be drawn from a course of conduct which reflects a clear and convincing' scheme on the part of a debtor to hinder, delay or defraud creditors. Federal Texas Savings Association v. Reed (In re Reed), 700 F.2d 986, 991 (5th Cir.1983); Farmers Co-op Association of Talmage, Kansas v. Strunk, 671 F.2d 391, 395 (10th Cir.1982). The debtor’s payments to his daughters and parents over a period of many years and his annual skiing vacations are not like the single instance transfers within the year preceding bankruptcy which occurred in In re White, 63 B.R. 742 (Bankr.N.D.Ill.1986), where the debtor disposed of proceeds from the sale of a business. Nor is the debtor’s conduct similar to the single instance transfer of the debt- or’s home to his wife in In re Rubin, 12 B.R. 136. Moreover, the transfer of a debt- or’s funds to pay her daughter’s auto loan and a vacation to Europe in In re Lubin, 61 B.R. 511 were also single instance events which were undertaken by the debtor because she said that she did not want the funds to go to her creditors. There was no prior pattern of payments or vacations at times when the debtor did not have her creditors in mind. In the instant case, for many years before he filed his Chapter 7 petition, the debtor made substantial payments to his daughters and parents in the form of monthly and annual allowances for their support. Additionally, he annually took skiing vacations with his family. There was no proof that"
},
{
"docid": "22773272",
"title": "",
"text": "wife’s bank account. On October 13, 1988, the bankruptcy court entered a separate order rejecting Calder’s objection to Dennis Job’s proof of claim. The bankruptcy court determined that Calder could not claim the protections of the automatic stay under section 362(a) because he “failed to timely perform his obligation to provide notice to the state court of the fact that he had previously filed a petition under Chapter 13 of the Bankruptcy Code, and ... that failure constitutes a de facto stipulation between the Debtor and Job to grant Job relief from the automatic stay.” The district court summarily affirmed both the denial of discharge and the allowance of the proof of claim. II. Denial of Discharge Ten categories of circumstances which can forestall a debtor’s receipt of a discharge in bankruptcy are described in 11 U.S.C. § 727(a). Calder does not dispute that an omission of assets from a Statement of Affairs or schedule may constitute a false oath under section 727(a)(4)(A). Farmers Co-op. Ass’n v. Strunk, 671 F.2d 391, 395 (10th Cir.1982). To trigger section 727(a)(4)(A), the false oath must relate to a material matter and must be made willfully with intent to defraud. See 4 Collier on Bankruptcy, 11727.04[1] at 727-54 to -57 (15th ed. 1987). We agree with the bankruptcy court that each of Calder’s omissions was a material matter that would support denial of discharge. The omitted information concerned the existence and disposition of Calder’s property. See In re Chalik, 748 F.2d 616, 618 (11th Cir.1984) (“The subject matter of a false oath is ‘material,’ and thus sufficient to bar discharge if it bears a relationship to the bankrupt’s business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of his property.”). Calder has argued that he should not be denied a discharge of his debts because the undisclosed bank accounts and mineral interest were worthless assets. However, a “recalcitrant debtor may not escape a section 727(a)(4)(A) denial of discharge by asserting that the admittedly omitted ... information concerned a worthless business relationship or holding; such a defense"
},
{
"docid": "14439599",
"title": "",
"text": "was ultimately resolved by rule, specifically former Bankruptcy Rule 407, which made clear that the burden of proof applicable to a complaint objecting to a discharge was on the plaintiff. See Matter of Decker, 595 F.2d 185 (3rd Cir.1979) (upholding validity of Rule 407). Current Bankruptcy Rule 4005 is virtually identical to former Rule 407 in stating that the burden is on the plaintiff in a proceeding brought under 727. See 8 COLLIER ON BANKRUPTCY p. 4005 at 4005-1 to 4005-2 (15 ed. 1988). While the plaintiff has the burden of persuasion, the burden of going forward with the evidence shifts to the debtor once the plaintiffs have shown the acts complained of occurred. In re Martin, 698 F.2d 883, 887 (7th Cir.1983). The debtor must then come forward with a credible explanation of his actions. However, the ultimate burden of proof in a proceeding objecting to discharge lies with the plaintiff. An inference of irregularity may arise from a series of assets or potential assets omitted from a debtor’s schedules. In re Topping, 84 B.R. 840, 842 (Bankr.M. D.Fla.1988) The cumulative effect of evidence of assets not listed will satisfy the creditor’s burden of proof. The Tenth Cir cuit has determined that the plaintiff need carry its burden under this section only by a preponderance of the evidence. Farmers Co-Op. Assn. of Talmage, Kansas v. Strunk, 671 F.2d 391, 395 (10th Cir.1982). The focus of the evidence before us was on the Statement of Affairs and Schedule B-l filled out by the debtor and filed with the petition. Paragraph 2(e) of the Statement of Affairs (Statement) asks “What amount of income have you received from other sources during each of these two years? (Give particulars, including each source and the amount received therefrom).” Calder answered this question, “Until April 1984, debtor received the income from Redlac partnership. This was approximately $500.00 per month. There was a bonus paid at the end of the year.” Paragraph 4 of the Statement asked the debtor about all bank accounts. The answer listed three. Calder answered “no” in response to paragraph 12 of"
},
{
"docid": "14785697",
"title": "",
"text": "State Bank of Canova, 15 F.2d 499 (8th Cir.1926); In re Johnson, 80 B.R. 953 (Bankr.D.Minn.1987). We agree with the foregoing decisions that we should not prohibit a debtor’s full use of exemptions within the limits of the law. We, therefore, find it irrelevant that Mr. Smiley stood to gain a large amount of money from his creditors had his Kansas exemptions been upheld. In addition, his knowledge of Kansas exemption law is irrelevant, since we do not find bankruptcy planning necessarily to be a fraud on creditors. We look, however, for extrinsic signs of fraud. Such signs include: (1) that the debtor obtained credit in order to purchase exempt property; (2) that the conversion occurred after the entry of a large judgment against the debtor; (3) that the debtor had engaged in a pattern of sharp dealing prior to bankruptcy; ... and [ (4) ] that the conversion rendered the debtor insolvent. 4 Collier on Bankruptcy, ¶ 727.02[3] at 19-20 (15th ed. 1986) (footnotes omitted). Although the bankruptcy court found that Mr. Smiley’s course of conduct was evidence of fraud, he did not exhibit sharp dealing such as that shown by the debtor in the case of In re Reed, 700 F.2d 986 (5th Cir.1983). The Reed court wrote, that “Reed’s whole pattern of conduct evinces that intent [to defraud].” Id. at 991 (citing Farmers Co-Operative Ass’n v. Strunk, 671 F.2d 391, 395 (10th Cir.1982)). After obtaining an agreement from his creditors to postpone collection of his debts, Reed borrowed money to augment his antique collection. He set up a separate bank account opened without the knowledge of his creditors in which he deposited his business receipts. He repaid from that account the money he had borrowed to buy the antiques. In addition to the antiques, Reed accumulated other personal assets and then sold all of them for less than fair market value. He transferred the proceeds to exempt property by applying them towards the mortgages on his house. Reed’s entire course of conduct evidenced that he intended not only to take advantage of his exemption rights, but that"
}
]
|
576118 | between what courts have termed “direct” trespass, that is, where rocks or debris have been cast by blasting on adjoining land, Asheville Const. Co. et al. v. Southern Ry. Co., 4 Cir., 1927, 19 F.2d 32, and a situation such as we have here, where air-waves or ground vibrations have been sent out by the blasting, causing damage. In both cases the property is damaged by a physical force coming upon it. Whether such force is visible or invisible, or whether it causes the damage by smashing or by shaking is of no consequence. There is, I believe, a Federal rule on the subject, which is to be found in the case of Exner et REDACTED d 510, 513, 80 A.L.R. 686. While this was a case of accidental explosion of dynamite, rather than intentional blasting, Judge A. N. Hand of the Second Circuit Court of Appeals in the opinion states the principle which he concluded, and which I believe, is applicable to both types of explosion. The case was decided prior to Erie Railroad Co. v. Tompkins and was therefore not based on any considerations of State law. I quote as follows from the opinion: “It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or debris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability for | [
{
"docid": "3018243",
"title": "",
"text": "Tiffin v. McCormack, 34 Ohio St. 638, 32 Am. Rep. 408; Rafferty v. Davis, 260 Pa. 563, 103 A. 951; Mulchanock v. Whitehall Cement Mfg. Co., 253 Pa. 262, 98 A. 554, L. R. A. 1917A, 1015; Wells v. Knight, 32 R. I. 432, 80 A. 16; Hickey v. McCabe, 30 R. I. 346, 75 A. 404, 27 L. R. A. (N. S.) 425, 19 Ann. Cas. 783; Gossett v. So. Ry. Co., 115 Tenn. 376, 89 S. W. 737, 1 L. R. A. (N. S.) 97, 112 Am. St. Rep. 846; Schade Brewing Co. v. C., M. & St. P. Ry., 79 Wash. 651, 140 P. 897; Patrick v. Smith, 75 Wash. 407, 134 P. 1076, 48 L. R. A. (N. S.) 740. And the rule of absolute liability for direct injury from blasting has been applied, not only to damage to property, but to the person. Wright v. Compton, 53 Ind. 337; Louisville & N. R. Co. v. Smith’s Adm’r, 203 Ky. 513, 263 S. W. 29, 35 A. L. R. 1238; Sullivan v. Dunham, 161 N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 274; St. Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258. See, also, Miles v. Forest Rock Granite Co., 34 Times Law Reports, 500. It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or débris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability, for the latter where the blasting itself was conducted at a lawful time and place and with due care. Booth v. Rome, W. O. T. Ry. Co., 140 N. Y. 267, 35 N. E. 592, 24 L. R. A. 105, 37 Am. St. Rep. 552; Simon v. Henry, 62 N. J. Law, 486, 41 A. 692; Bessemer, etc., Co. v. Doak, 152 Ala. 166, 44 So. 627, 12 L. R. A. (N. S.) 389; Gibson v. Womack, 218 Ky. 626, 291 S. W. 1021, 51 A."
}
]
| [
{
"docid": "14913131",
"title": "",
"text": "two' situations. Such dangerous instrumentalities as dynamite, being useful, if not indispensable, in many commercial and indus trial pursuits, must be kept and stored. It may be reasonable to conclude, as many courts have done, that in cases of accidental explosion liability depends on failure to exercise due care in keeping and storing the explosive. On the other hand, when one intentionally sets off a charge of dynamite, he thereby looses for a destructive purpose (albeit a proper and lawful purpose) those very forces which are known to be dangerous to any person or property which may be within the radius of the concussions and vibrations produced by the blast. This distinction must, in my opinion, be given weight in deciding the question here propounded. In two West Virginia cases dealing with damage caused by bursting water tanks, the Court goes far towards establishing a rule of absolute liability, even where the dangerous force is released accidentally and not intentionally. Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126, 33 L.R.A.,N.S., 1061; Wigal, Adm’x v. City of Parkersburg, 74 W.Va. 25, 81 S.E. 554, 52 L.R.A.,N.S., 465. While both these cases appear on their face to have been decided by the application of res ipsa loquitur as a rule of evidence, yet in the latter case the Court held that no degree of care 'shown by the defendant could relieve it from liability, and that in such cases nothing short of proof that the bursting of the tank was due to an act of God or a clandestine hand could excuse the defendant from liability; and in both cases instructions offered by the defendants which would have submitted the question of negligence to the jury were held to have been properly refused. This is little, if any, different from the conclusions of those courts which follow the doctrine of absolute liability in similar situations. If these cases are interpreted as imposing absolute liability, whether designated as such or not, they furnish sufficient authority a fortiori to sustain this Court in adhering to that rule in the instant case."
},
{
"docid": "14913126",
"title": "",
"text": "BEN MOORE, Chief Judge. The plaintiff in these two cases, which have been consolidated, bring their actions seeking to recover for damage to their dwelling houses which they allege resulted from concussions and vibrations from defendant’s blasting operations in connection with the construction of the Kanawha County Airport, near Charleston, West Virginia. No allegation of negligence appears in the complaints. Defendant moves to dismiss the complaints on the ground that they do not state a cause of action. The motion presents the question: Is a person who intentionally sets off a dynamite blast in the conduct of a lawful blasting operation absolutely liable for damage to houses (however distant from the scene of the blast), or must the plaintiff as a condition precedent to recovery allege and prove some act of negligence on the part of the person responsible for the blasting? It is, of course, the duty of the Court, following the rule of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, to apply the law of the State of West Virginia to the problem posed by the question, if an answer can be found in any of the cases decided by the Supreme Court of Appeals of that State. However, counsel have cited no West Virginia cases, and I have been able to find none, which could be said to be squarely in point. The only case in which the facts are closely similar to those of the instant case is that of Dallas v. Whitney, 118 W.Va. 106, 188 S.E. 766. Unfortunately for the purpose here, the West Virginia Supreme Court in that case did not purport to lay down any West Virginia rule but applied the law of Ohio in imposing absolute liability without requiring allegation or proof of negligence. A few other West Virginia cases approach but do not touch the question. For example, in the case of Wilson v. Phoenix Powder Manf’g Co., 40 W.Va. 413, 21 S.E. 1035, 52 Am.St.Rep. 890, the Court imposed absolute liability on the owner of a powder mill which"
},
{
"docid": "20962635",
"title": "",
"text": "ROBERT L. TAYLOR, Chief Judge. This action was started August 4, 1965 against the TVA in the Circuit Court of Anderson County, alleging that blasting in the early months of 1963 by the Authority in connection with the construction of its Bull Run Steam Plant had done great and permanent damage to plaintiff’s dwelling house on nearby property. On August 19, 1965 the Authority petitioned for removal of the cause to this Court, under 16 U.S.C. §§ 831-831dd, on the ground that it is an agency of the United States. Thereafter on September 9, 1965, the Authority filed its motion to dismiss on the grounds: that the detonations by defendant were made in the course of a construction project of a federal agency authorized by federal statute and if there was damage, the law affords no remedy; and that there was no allegation of negligence and that defendant as an agency of the United States cannot be held liable in tort for the non-negligent conduct of an authorized activity. Plaintiff responds that the motion should be dismissed, on the ground that the Authority is subject to the common law of Tennessee which requires no proof of negligence where defendant uses powerful explosives in a blasting operation which proximately injure and damage the property of a third party, and that the Tennessee law affords a remedy for direct and consequential damages from the use of high explosives. This is true whether there is physical invasion of the adjoining property. Liability may be based upon concussion and vibration of the earth and air. Aycock v. Nashville, C. & St. L. Ry. Co., 4 Tenn.App. 655. In Pate v. Lewisburg & Northern Ry. Co., 8 Tenn. CCA (Higgins) 355, it is said that plaintiff need not prove the blasting was d'one^ in a negligent manner. City of Knoxville v. Peebles, et ux., 19 Tenn. App. 340, 87 S.W.2d 1022 supports both previous cases. See also, Jones v. Oman, 28 Tenn.App. 1, 184 S.W.2d 568. But defendant argues: “ * * * Defendant had a legal right to construct the Bull Run plant and"
},
{
"docid": "11127520",
"title": "",
"text": "All these must be distinguished from the violent breach of a reservoir by this elemental force stored by the act of a party. Where one is managing a stream of water and loses control, whereby the element rages over the land of another, the cases above mentioned have no applicability. This distinction has been little noted in the opinions. Closely allied to this doctrine is the liability imposed where one, either personally or by agency of some force which he voluntarily sets in motion, trespasses upon the land of another. At common law, with certain minor exceptions not important here, any interference with possession is an act which will , entitle the injured party to bring an action in tort. The fact that the act is done accidentally or in good faith or under justifiable error is no defense. The most striking illustration of this doctrine in modern law is found in cases where á trespass is committed on land' by virtue of an invasion thereof by falling rocks, earth or other substances occasioned by the voluntary setting off of a blast of dynamite or other explosive. Here the rule of absolute liability is applied because the defendant voluntarily unleashed a force which, contrary to his intention, invaded the lands of another. In these instances, the overwhelming weight of authority is that there is no defense even though the most extreme precautions were used. If the substances had been stored by the owner of adjoining land and had exploded without the owner’s intention or knowledge, then the doctrine of the Rylands case would apply. The analogy between the blasting cases and the stored water cases is' indicated in a very interesting opinion of the Court of Appeals of the Second Circuit. The Court there say: “While the rule laid down ,by Blackburn, J., in Rylands v. Fletcher, * * * has not been followed in America; to the full extent of all its implications, and) at the outset its authority was impaired by Brown v. Collins, 53 N.H. 442, 16 Am.Rep. 372, Marshall v. Welwood, 38 N.J.Law, 339, 20 Am.Rep."
},
{
"docid": "3018245",
"title": "",
"text": "L. R. 773; Rost v. Union Pac. Ry. Co., 95 Kan. 713, 149 P. 679. Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. In each ease, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between the actions of trespass and ease and, in our opinion, is without logical basis. It has been rejected in Colton v. Onderdonk, 69 Cal. 155, 10 P. 395, 58 Am. Rep. 556; McKenna v. Pacific Electric Ry. Co., 104 Cal. App. 538, 286 P. 445; Fitzsimons & Connell Co. v. Braun, 199 Ill. 390, 65 N. E. 249; 59 L. R. A. 421; Watson v. Mississippi River Power Co., 174 Iowa, 23, 156 N. W. 188, L. R. A. 1916D, 101; Longtin v. Persell, 30 Mont. 306, 76 P. 699, 65 L. R. A. 655, 104 Am. St. Rep. 723, 2 Ann. Cas. 198; Louden v. City of Cincinnati, 90 Ohio St. 144, 106 N. E. 970, L. R. A. 1915E, 356, Ann. Cas. 1916C, 1171; Hickey v. McCabe & Bihler, 30 R. I. 346, 75 A. 404, 27 L. R. A. (N. S.) 425, 19 Ann. Cas. 783; Feinberg v. Wisconsin Granite Co., 54 S. D. 643, 224 N. W. 184; Patrick v. Smith, 75 Wash. 407, 134 P. 1076, 48 L. R. A. (N. S.) 740; Schade Brewing Co. v. C., M. & St. P. Ry. Co., 79 Wash. 651, 140 P. 897. We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences. As"
},
{
"docid": "8518452",
"title": "",
"text": "the bursting tank, and the Court said in its syllabus: “In the absence of proof that the breaking of the tank was caused by some superior force, such as an unusual and violent disturbance of the elements or an explosion clandestinely caused, negligence will be inferred from the breaking.” The general principal of law broadly stated in those two cases; namely, that one must not use his property in such a way as to damage another, indicates that the trend in West Virginia is toward imposing liability in a case like the one at bar. As to the rule at common law in the United States generally, the best exposition that I have found or that has been cited to me is that in the case of Exner v. Sherman Power Construction Co., 2 Cir., 54 F.2d 510, 512, 80 A.L.R. 686. The opinion in that case by Judge Augustus N. Hand, and concurred in by Circuit Judges Learned Hand and Swan, traces the developments in this law and discusses the legal question involved generally as applied in the courts of the United States. This case arose before the Supreme Court decision-in Erié Railway Company v. Tompkins. The Court expressly rejected a contention that a state statute was controlling, and decided the matters presented upon the basis of the general American law. In this connection, Judge Hand said: “We may say at the outset that we have been referred to nothing relevant as to this in the Vermont decisions, but they would not control in any event, because the matter is one in which we are at liberty to gather the principle to be applied from the general field of jurisprudence.” This case involved damages resulting from concussion caused by an explosion of dynamite, and the Court of Appeals for the Second Circuit held that there was liability upon the part of the defendant without proof of negligence. In this connection it cited the cases of Weaver Mercantile Co. v. Thurmond, supra, and Wigal v. City of Parkersburg, supra, indicating that that Court at least feels that the law of"
},
{
"docid": "20962636",
"title": "",
"text": "be dismissed, on the ground that the Authority is subject to the common law of Tennessee which requires no proof of negligence where defendant uses powerful explosives in a blasting operation which proximately injure and damage the property of a third party, and that the Tennessee law affords a remedy for direct and consequential damages from the use of high explosives. This is true whether there is physical invasion of the adjoining property. Liability may be based upon concussion and vibration of the earth and air. Aycock v. Nashville, C. & St. L. Ry. Co., 4 Tenn.App. 655. In Pate v. Lewisburg & Northern Ry. Co., 8 Tenn. CCA (Higgins) 355, it is said that plaintiff need not prove the blasting was d'one^ in a negligent manner. City of Knoxville v. Peebles, et ux., 19 Tenn. App. 340, 87 S.W.2d 1022 supports both previous cases. See also, Jones v. Oman, 28 Tenn.App. 1, 184 S.W.2d 568. But defendant argues: “ * * * Defendant had a legal right to construct the Bull Run plant and in so doing to conduct any blasting operations it deemed necessary. It owed no duty to plaintiff to refrain from blasting or from using explosive charges of whatever size were most efficient and economical.” It argues plaintiff “is simply complaining of a non-negligent invasion of her property arising out of the authorized construction of a public project * * * ” and calls for application of Transportation Co. v. Chicago, 99 U.S. 635, 25 L.Ed. 336. It cited also Lynn v. United States, 110 F.2d 586 (C.A. 5) where there was damage from improvement of the river by the Wheeler reservoir. Other cases of like import dealt with the effects of flooding out crops, Atchley v. TVA, D.C., 69 F. Supp. 952; highway construction, Myers v. United States, 9 Cir., 323 F.2d 580; airports and avigation easements, Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585; a proving , , ... ,T „ TT ., t ground for munitions, Nunnally v. United States, 4 Cir., 239 F.2d 521; storage of munitions,"
},
{
"docid": "22138375",
"title": "",
"text": "modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.” 328 U. S., at 260-261. Thus, quite apart from what would very likely be insuperable problems of proof in connecting the passage of the plane over the owner’s air space with any ensuing damage from a sonic boom, this version of the trespass theory is ruled out by established federal law. Perhaps the precise holding of United States v. Causby, supra, could be skirted by analogizing the pressure wave of air characterizing a sonic boom to the concussion that on occasion accompanies blasting, and treating the air wave striking the actual land of the property owner as a direct intrusion caused by the pilot of the plane in the mold of the classical common-law theory of trespass. It is quite clear, however, that the presently prevailing view as to the theory of liability for blasting damage is frankly conceded to be strict liability for undertaking an ultrahazardous activity, rather than any attenuated notion of common-law trespass. See Restatement of Torts §§ 519, 520 (e); W. Prosser, Law of Torts § 75 (4th ed. 1971). While a leading North Carolina case on the subject of strict liability discusses the distinction between actions on the case and actions sounding in trespass that the earlier decisions made, it, too, actually grounds liability on the basis that he who engages in ultrahazardous activity must pay his way regardless of what precautions he may have taken. Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N. C. 69, 131 S. E. 2d 900 (1963). More importantly, however, Congress in considering the Federal Tort Claims Act cannot realistically be said to have dealt in terms of either the jurisprudential distinctions peculiar to the forms"
},
{
"docid": "8553325",
"title": "",
"text": "71 Or. 521, 136 P. 885, 143 P. 616; Freer v. City of Eugene, 166 Or. 107, 111 P.2d 35. . “Actionable negligence must be predicated upon the breach of a legal duty.” Freer v. City of Eugene, 166 Or. 107, 111 P.2d 85, 87. . Rylands v. Fletcher, L. R., 3 II.L. 330; Tenant v. Goldwin (Eng.), 1 Salk. 360; Suko v. Northwestern Ice Co., 166 Or. 557, 113 P.2d 209. . Brown v. Gessler, 191 Or. 503, 512-513; 230 P.2d 541, 23 A.L.R.2d 815. . «* * # ¡n the so-called ‘blasting’ cases an absolute liability, without regard to fault, has uniformally been imposed by the American courts wherever there has been an actual invasion of property by rocks or debris.” Exner v. Sherman Power Construction Co., 2 Cir., 54 F.2d 510, 513, 80 A.L.R. 686. For the application of this rule in Oregon, see Salmi v. Columbia & Nehalem Railroad Co., 75 Or. 200, 146 P. 819, L.R.A. 1915D, 834; Fisher v. Burrell, 116. Or. 317, 241 P. 40. . See Stapleton’s Case, Y.B. 29 Edw. Ill, 32b, in which the plaintiff sued out a writ of trespass against the defendant for damage done to plaintiff’s premises by water breaking over, or through, a restraining wall or bank which the defendant was bound by custom to maintain. Street, ' Foundation of Legal Liability, 182. As to the duty to maintain a dike or seawall, cf. Terrier of Fleet Lincolnshire, London, published for the British Academy by Humphrey Milford, Oxford University Press, Amen Corner, E.C.1920; Callis on Sewers, Reading before Gray’s Inn (1022), second edition (1085); United States v. Florea, D.C., 68 F.Supp. 307, 372 ff. . Crawford v. Cobbs & Mitchell Co., 121 Or. 628, 253 P. 3, 257 P. 16. . Executive Order No. 9957, 13 F.R, 2503. . General Order No. 4, dated May 17, 1948, P.T.O., 13 F.R.D. 342. . Ure v. United States, D.C., 98 F.Supp. 779; Prosser, Handbook of the Law of Torts, 291 ff. (1941); . McPherson v. Oregon Trunk Railway, 163 Or. 1, 102 P.2d 726. The rocks in this"
},
{
"docid": "14913134",
"title": "",
"text": "cases of trespass quare clausum fregit, so deep-seated in the law as to require no citation of authority, is that the person causing the trespass is liable for resulting damage irrespective of negligence. I can see no difference in principle between what courts have termed “direct” trespass, that is, where rocks or debris have been cast by blasting on adjoining land, Asheville Const. Co. et al. v. Southern Ry. Co., 4 Cir., 1927, 19 F.2d 32, and a situation such as we have here, where air-waves or ground vibrations have been sent out by the blasting, causing damage. In both cases the property is damaged by a physical force coming upon it. Whether such force is visible or invisible, or whether it causes the damage by smashing or by shaking is of no consequence. There is, I believe, a Federal rule on the subject, which is to be found in the case of Exner et ux. v. Sherman Power Const. Co., 2 Cir., 1931, 54 F.2d 510, 513, 80 A.L.R. 686. While this was a case of accidental explosion of dynamite, rather than intentional blasting, Judge A. N. Hand of the Second Circuit Court of Appeals in the opinion states the principle which he concluded, and which I believe, is applicable to both types of explosion. The case was decided prior to Erie Railroad Co. v. Tompkins and was therefore not based on any considerations of State law. I quote as follows from the opinion: “It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or debris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability for the latter where the blasting itself was conducted at a lawful time and place and with due care. (Citing cases.) Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down"
},
{
"docid": "13955290",
"title": "",
"text": "waves, if possible. Although at the state of scientific progress attained at the time of this test series it was impossible to predict whether and where such bending might occur, the trial court found “that every precaution for the public’s safety was exercised, commensurate with the task to be performed, and the equipment and scientific knowledge available.” As to the remaining contentions, the trial court made the following finding of fact: “Upon the evidence before it, this Court cannot find that any officer or employee of the United States was negligent in the performance of his duties relating to atomic experimentation, or that the atomic detonations were the proximate cause of the damage to plaintiff’s property. The Court finds that blast waves released from atomic detonations during the period in question may have reached the property of plaintiff on one or two occasions during the period involved. The Court further finds that as to each such blast wave from the atomic detonation reaching the land of plaintiff, if any, the shock wave was uncontrollable and unpredictable under the circumstances obtaining.” This finding is correct and is affirmed upon the record before this Court. The law of the State of Nevada between private parties has been neglected by both parties to this case. It is not unusual to find this situation in the briefs and arguments in this type case. But there is, so we have been taught, no federal common law. The Tort Claims Act, 28 U.S.C.A. § 2674, expressly establishes the law of the state where the incident occurred applicable to private parties as the criterion by which the liability of the federal government under like facts may be found. This Court has no means of predicting what the courts of Nevada would decide if confronted with the exact situation here between private parties. However, it is well established at common law that a blast of air, caused by an explosion, rushing over distant real property is not a trespass. It is possible, of course, that the courts of Nevada may impose liability between private parties for the consequences"
},
{
"docid": "14913129",
"title": "",
"text": "caused by dangerous instrumentalities, is that of Vaughan v. Miller Bros. “101” Ranch Wild West Show, 109 W.Va. 170, 153 S.E. 289, 69 A.L.R. 497. In this case plaintiff was standing near a wild animal which was being exhibited in a cage in a circus menagerie, and he having his hand within reach of the animal, his finger was seized and bitten off. The Court, after reviewing the trend of English and American authorities, concluded that' the mere keeping of a wild animal is not enough to impose liability on the keeper, but that there must be some neglect properly to restrain it if the owner is to be held liable in damages. It is to be noted that in this case the plaintiff was seeking to recover for personal injuries received after he had placed himself in a position of known peril. The cases in this State involving blasting or explosions of dynamite are of little aid to the Court in reaching a proper conclusion in the instant case. Where railroads, in grading condemned rights of way, have cast rocks and debris upon adjoining lands, the Court has held that such damage was necessarily taken into consideration in fixing the award for the condemned lands (the measure being the value of the land taken and damages to the residue), and that removal of the rocks and debris within a reasonable time would absolve the contractor from liability. Watts v. Norfolk & W. R. Co., 39 W.Va. 196, 19 S.E. 521, 23 L.R.A 674, 45 Am.St.Rep. 894; Gordon v. Elmore, 71 W.Va 195, 76 S.E. 344. Other cases involve personal injuries received from unexpected explosions and are distinguishable on their facts. See Schwartz v. Shull, 45 W.Va 405, 31 S.E 914; State ex rel. Bennett v. Sims, W.Va. 1948, 48 S.E.2d 13. Nowhere in the cases have I found any judicial recognition of a distinction between the accidental explosion of dynamite or other accidental release of dangerous forces and the intentional setting off or release of such forces; yet as I see it, there is a substantial difference between the"
},
{
"docid": "11127522",
"title": "",
"text": "394, and Losee v. Buchanan, 51 N.Y. 476, 10 Am.Rep. 623, yet in the so-called ‘blasting’ cases an absolute liability, without regard to fault, has uniformly been imposed by the American courts wherever there has been an actual invasion of property by rocks or debris.”' The blasting cases have one-element which is not present in the stored water cases, but is present in the instant case. When one voluntarily and deliberately does an act upon his own land which, results in a physical trespass upon lands in other ownership, the liability is absolute. In the stored water cases, a condition has been created, the consequences of which may be injury to other land. But in the active release and management of a column of water flowing at a fast raté and in great volume, as in setting off a blast, the person-who initiates and carries on the activity is a participant in whatever results. If the result is a trespass on lands of another, the liability is absolute. This is not an isolated instance of the; doctrine that, where one voluntarily does: an act which results in trespass upon land! of another, he is absolutely liable. There-are opinions which hold that water cast upon another’s land, as a result of some act voluntarily done by another, constitutes a trespass, whether intentional or not, and this rule is applicable to acts done by governmental bodies. Due to changing fashions of pleading, the ground of trespass is rarely chosen alone at the present time. The pleader usually thinks that he is safer to place the matter upon a ground of negligence. The Courts, however, in applying the doctrines of negligence, recognize the difference between an inherently dangerous situation and one that will result in a trespass, as differentiated from the ordinary course of events which requires only ordinary care. There are no degrees of negligence, but there are degrees of care. Where a situation has potential elements of extreme hazard, the Courts require a high degree of care and sometimes what they term the \"highest degree of care,” which does not render"
},
{
"docid": "14913130",
"title": "",
"text": "rights of way, have cast rocks and debris upon adjoining lands, the Court has held that such damage was necessarily taken into consideration in fixing the award for the condemned lands (the measure being the value of the land taken and damages to the residue), and that removal of the rocks and debris within a reasonable time would absolve the contractor from liability. Watts v. Norfolk & W. R. Co., 39 W.Va. 196, 19 S.E. 521, 23 L.R.A 674, 45 Am.St.Rep. 894; Gordon v. Elmore, 71 W.Va 195, 76 S.E. 344. Other cases involve personal injuries received from unexpected explosions and are distinguishable on their facts. See Schwartz v. Shull, 45 W.Va 405, 31 S.E 914; State ex rel. Bennett v. Sims, W.Va. 1948, 48 S.E.2d 13. Nowhere in the cases have I found any judicial recognition of a distinction between the accidental explosion of dynamite or other accidental release of dangerous forces and the intentional setting off or release of such forces; yet as I see it, there is a substantial difference between the two' situations. Such dangerous instrumentalities as dynamite, being useful, if not indispensable, in many commercial and indus trial pursuits, must be kept and stored. It may be reasonable to conclude, as many courts have done, that in cases of accidental explosion liability depends on failure to exercise due care in keeping and storing the explosive. On the other hand, when one intentionally sets off a charge of dynamite, he thereby looses for a destructive purpose (albeit a proper and lawful purpose) those very forces which are known to be dangerous to any person or property which may be within the radius of the concussions and vibrations produced by the blast. This distinction must, in my opinion, be given weight in deciding the question here propounded. In two West Virginia cases dealing with damage caused by bursting water tanks, the Court goes far towards establishing a rule of absolute liability, even where the dangerous force is released accidentally and not intentionally. Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126, 33 L.R.A.,N.S., 1061; Wigal,"
},
{
"docid": "8518449",
"title": "",
"text": "BAKER, Chief Judge. This action is based upon alleged damages caused to the property of the plaintiff by the defendant. It is claimed that this damage resulted when the defendant blasted with dynamite on defendant’s property and the concussion therefrom injured the plaintiff’s property. There is no allegation that the blasting cast any rocks -or other debris upon the plaintiff’s property. The complaint sets forth three causes of action; first, it alleges that the defendant was negligent in its blasting operations and so- injured the plaintiff; second, it alleges that the defendant, even though not negligent, used such a dangerous instrumentality that he is liable to- the plaintiff in the absence of proof of negligence; third,' it alleges that the defendant’s conduct constituted a nuisance. The defendant has filed a motion to- dismiss. The defendant first asserts that the complaint does not comply with the Federal Rules of Civil Procedure, 28 U.S.C.A., in that it sets forth three separate causes of action. I feel that the complaint complies with Rule 8 of the Rules of Civil Procedure in all essential respects. Second, the defendant asserts that the cause of action at the time the suit was instituted was barred by the Statute of Limitations. This being an injury to real property, the one-year Statute of Limitations does not apply, and I hold that this action was instituted within the time permitted by West Virginia law. The third and principal attack upon the complaint goes to the theory alleged in the second and third causes of action, that the defendant is liable even if he acted without negligence. There is a division of judicial opinion among the courts of this country on this question. Counsel for the defendant and for the plaintiff have each cited numerous cases from other states, which sustain their respective positions. However, counsel were unable to find any West Virginia case directly in point, and my own research has not dis closed such a case. Therefore, under the rule in the case of Erie Railway Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 118,"
},
{
"docid": "14913136",
"title": "",
"text": "people. In each case, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between the actions of trespass and case and, in our opinion, is without logical basis. (Citing cases.) “We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences. As Justice Holmes has said in The Common Law, p. 154: ‘The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.’ ” I have found no other case which could be said to have established a Federal rule. There are cases in which the plaintiff sustained personal injuries from exploding dynamite, after exposing himself to the danger, known by him to exist. In these cases, it is taken for granted that negligence on the part of the person setting off the blast must be alleged and proved. Cary Bros. & Hannon v. Morrison, 8 Cir., 1904, 129 F. 177, 65 L.R.A. 659; Smith v. Day, C.C.D.Or.1905, 136 F. 964. I am impressed with Judge Hand’s reasoning, and regard the law of the Exner case as being especially applicable to present day conditions, when major improvements are being effected in already overcrowded localities. The use of dynamite in blasting is a well-recognized practice, but the injurious results often occasioned thereby are equally well known. Any person who uses it in such manner as to cause damage to his neighbor must be held absolutely liable therefor. The motions to dismiss the complaints in each case are overruled."
},
{
"docid": "11127521",
"title": "",
"text": "the voluntary setting off of a blast of dynamite or other explosive. Here the rule of absolute liability is applied because the defendant voluntarily unleashed a force which, contrary to his intention, invaded the lands of another. In these instances, the overwhelming weight of authority is that there is no defense even though the most extreme precautions were used. If the substances had been stored by the owner of adjoining land and had exploded without the owner’s intention or knowledge, then the doctrine of the Rylands case would apply. The analogy between the blasting cases and the stored water cases is' indicated in a very interesting opinion of the Court of Appeals of the Second Circuit. The Court there say: “While the rule laid down ,by Blackburn, J., in Rylands v. Fletcher, * * * has not been followed in America; to the full extent of all its implications, and) at the outset its authority was impaired by Brown v. Collins, 53 N.H. 442, 16 Am.Rep. 372, Marshall v. Welwood, 38 N.J.Law, 339, 20 Am.Rep. 394, and Losee v. Buchanan, 51 N.Y. 476, 10 Am.Rep. 623, yet in the so-called ‘blasting’ cases an absolute liability, without regard to fault, has uniformly been imposed by the American courts wherever there has been an actual invasion of property by rocks or debris.”' The blasting cases have one-element which is not present in the stored water cases, but is present in the instant case. When one voluntarily and deliberately does an act upon his own land which, results in a physical trespass upon lands in other ownership, the liability is absolute. In the stored water cases, a condition has been created, the consequences of which may be injury to other land. But in the active release and management of a column of water flowing at a fast raté and in great volume, as in setting off a blast, the person-who initiates and carries on the activity is a participant in whatever results. If the result is a trespass on lands of another, the liability is absolute. This is not an isolated instance of"
},
{
"docid": "14913135",
"title": "",
"text": "case of accidental explosion of dynamite, rather than intentional blasting, Judge A. N. Hand of the Second Circuit Court of Appeals in the opinion states the principle which he concluded, and which I believe, is applicable to both types of explosion. The case was decided prior to Erie Railroad Co. v. Tompkins and was therefore not based on any considerations of State law. I quote as follows from the opinion: “It is true that some courts have distinguished between liability for a common-law trespass, occasioned by blasting, which projects rocks or debris upon the property or the person of the plaintiff, and liability for so-called consequential damages arising from concussion, and have denied liability for the latter where the blasting itself was conducted at a lawful time and place and with due care. (Citing cases.) Yet in every practical sense there can be no difference between a blasting which projects rocks in such a way as to injure persons or property and a blasting which, by creating a sudden vacuum, shatters buildings or knocks down people. In each case, a force is applied by means of an element likely to do serious damage if it explodes. The distinction is based on historical differences between the actions of trespass and case and, in our opinion, is without logical basis. (Citing cases.) “We can see no reason for imposing a different liability for the results of an explosion, whether the dynamite explodes when stored or when employed in blasting. To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences. As Justice Holmes has said in The Common Law, p. 154: ‘The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of the venture on the person who introduces the peril into the community.’ ” I have found no other case which could be said to have"
},
{
"docid": "8518456",
"title": "",
"text": "in a position to be injured. The defendant owed him only the duty that devolves upon the owner of property when some one, even though he be an invitee or licensee, comes upon that property. Tn the case at bar, the defendant caused waves of shock or concussion to travel from his property onto the plaintiff’s property. Counsel for the defendant impliedly admitted in his argument that had debris actually been thrown upon the property of the plaintiff, there would be liability without negligence, but that since the damage is what he terms “consequential,” negligence must be alleged and proved. As I stated at the beginning, the authorities on this point are divided. American Jurisprudence, Volume 22, at page 180, states: “According to one theory, since recovery is permitted for damage done by stones or dirt thrown upon one’s premises by the force of an explosion upon adjoining premises, there is no valid reason why recovery should not be permitted for damage resulting to the same property from a concussion or vibration sent through the earth or the air by the same explosion. There is really as much a -physical invasion of the property in one case as there is in the other; and the fact that the explosion causes stones or other debris to be thrown upon the land in one case, and in the other only operates by vibrations or concussions through the earth and air, is held to be immaterial.” With that conclusion I agree. Blasting is necessarily and inherently dangerous and, hence, one who- undertakes to blast so near to another’s property as to be liable to cause damage must assume the risk for any damage resulting from vibration or concussions, irrespective of negligence. Counsel may present an order overruling the motion to dismiss."
},
{
"docid": "14913133",
"title": "",
"text": "Conversely, if they are interpreted as requiring an allegation of negligence in order to state a cause of action, it must be remembered that they belong to that class of cases which, as I have said, are distinguishable from the instant case in that there was no intentional loosing of a force against the countryside to cause damage where and to whom it might. Since there is no definite and certain rule of law in West Virginia with reference to the question presented here, this Court is at liberty to apply the Federal rule, if there be one, and if not, to endeavor to reach a proper conclusion in the light of the decisions in other states and from the general field of jurisprudence. Nearly all the Federal cases arising out of damage caused by blasting are cases in which the Federal Courts have applied the local State rule, as they are required to do if such a rule exists. Therefore, such cases are of little value in answering our question. The established rule in cases of trespass quare clausum fregit, so deep-seated in the law as to require no citation of authority, is that the person causing the trespass is liable for resulting damage irrespective of negligence. I can see no difference in principle between what courts have termed “direct” trespass, that is, where rocks or debris have been cast by blasting on adjoining land, Asheville Const. Co. et al. v. Southern Ry. Co., 4 Cir., 1927, 19 F.2d 32, and a situation such as we have here, where air-waves or ground vibrations have been sent out by the blasting, causing damage. In both cases the property is damaged by a physical force coming upon it. Whether such force is visible or invisible, or whether it causes the damage by smashing or by shaking is of no consequence. There is, I believe, a Federal rule on the subject, which is to be found in the case of Exner et ux. v. Sherman Power Const. Co., 2 Cir., 1931, 54 F.2d 510, 513, 80 A.L.R. 686. While this was a"
}
]
|
586513 | the FCC correctly argues, fails to state either a viable discrimination or hostile-work-environment claim. For the former, a plaintiff must allege that she suffered an adverse employment action because of her race, color, religion, sex, national origin, age, or disability. See Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (laying out basic elements of discrimination claim under Title VII, ADEA, and Rehabilitation Act). The alleged employment action must be “tangible” as evidenced by “firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities.” Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003) (citations and quotation marks omitted). Huang never alleges, however, that Dozc-kat’s negative comments affected her employment in any such tangible way. REDACTED ). At best, she complains only that she found the insinuation that she was unqualified for her job offensive and unfair. But a “bruised ego will not suffice to make an employ ment action adverse.” Stewart, 352 F.3d at 426 (quoting Stewart v. Ashcroft, 211 F.Supp.2d 166, 173 (D.D.C. 2002)). Without more, then, Huang has not stated a viable discrimination claim on the basis of Docz-kat’s comments and conclusions alone. This count likewise falls well shy of establishing a hostile work environment. The Supreme Court has held that federal antidiscrimination laws make it unlawful for an employer to “requir[e] people to work in a discriminatorily | [
{
"docid": "18011965",
"title": "",
"text": "at 1320 (same); Gardner v. Morris, 752 F.2d 1271, 1279 (8th Cir.1985) (exhaustion required for claims under both §§ 501 and 504). B. Title VII Title VII provides that “[a]ll personnel actions affecting employees ... in the Smithsonian Institution ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16. Because Title VII does not proscribe discrimination based upon an employee’s excessive weight, the district court properly considered only Taylor’s claim of race discrimination under Title VII. Where, as here, a plaintiff proffers only indirect evidence of unlawful discrimination, her case is subject to the three-part test the Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). As we recently reiterated: Under McDonnell Douglas, it is the plaintiffs burden to establish a prima facie case of discrimination by a preponderance of the evidence. If the plaintiff establishes a prima facie case, the employer must then articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff must then demonstrate that the employer’s stated reason was pretextual and that the true reason was discriminatory. Stella v. Mineta, 284 F.3d 135, 144 (D.C.Cir.2002) (citations omitted). In order to make out a prima facie case of racial discrimination, Taylor must demonstrate: (1) she suffered an “adverse employment action”; and (2) the adverse action occurred in circumstances that give rise to an inference of racial discrimination. See Stella v. Mineta, 284 F.3d 135, 146 (D.C.Cir.2002). In order to make out a prima facie case of retaliation, Taylor must show: (1) she engaged in a statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal connection between the two. See Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C.Cir.2003). As detailed below, Taylor failed to make out a prima facie case for any count of her complaint. The district court therefore properly entered summary judgment in favor of the Smithsonian on all Taylor’s Title VII claims. 1. Count I: Low Performance Evaluations Taylor first argues"
}
]
| [
{
"docid": "21108594",
"title": "",
"text": "the same conduct giving rise to her Title VII claims.” Brown v. Children’s Natl. Med. Ctr., 773 F.Supp.2d 125, 138 (D.D.C.2011); see also Wade v. Wash. Metro. Area Transit Auth., No. 01-0334, 2005 WL 1513137, at *6 (D.D.C. June 27, 2005) (granting summary judgment for defendant on a claim of negligently failing to ensure that “sexual harassment policies were not violated, and more specifically, to assure that Plaintiff was not subjected to a hostile work environment,” because the claim was “preempted by Title VII as the injury arises out of the alleged harassment itself’). Here, Leach does not deny that the same conduct underpins both her hostile-work-environment and negligent-supervision claims, but instead argues that the underlying legal theory for the negligent-supervision claim is different, given that some of the behavior Leach suffered could also constitute assault and battery or intentional infliction of emotional distress. Pl.’s Reply Supp. Pl.’s Mot. Summ. J. at 20-21. The Court finds this distinction immaterial. Because the same facts underlie Leach’s negligent-supervision and hostile-work-environment claims, the Court will deny Leach’s Motion for Partial Summary Judgment on this issue and grant Amtrak’s Motion for Summary Judgment as to Leach’s negligent-supervision claim. C. Sex Discrimination A sex-discrimination claim under Title VII has two essential elements: that “(i) the plaintiff suffered an adverse employment action (ii) because of the plaintiffs ... sex.” Baloch, 550 F.3d at 1196; accord Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008). For purposes of this claim, an “adverse employment action” is “ ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’ ” Baird v. Gotbaum (Baird I), 662 F.3d 1246, 1248 (D.C.Cir. 2011) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009)). Leach contends that her transfer from the morning to the evening shift constitutes an adverse employment action under this definition. But such a “lateral transfer, without more, does not constitute an adverse employment action” for purposes of a discrimination claim, particularly since her title, pay, benefits, and job duties remained the"
},
{
"docid": "1381891",
"title": "",
"text": "any claim based on criticism by plaintiffs employer or alleged changes in duties also fails because the evidence does not indicate that plaintiff suffered an adverse employment action. A showing of an adverse personnel action is, of course, equally required for a prima facie case of retaliation or discrimination. See Brody, 199 F.3d at 452. B. Hostile Work Environment With respect to plaintiffs argument that she was subjected to a retaliatory hostile work environment, the Court notes as an initial matter that it is not clear whether such a claim is actionable in this Circuit. Under Brown v. Brody, a plaintiff asserting a claim for retaliation must establish that (1) he engaged in statutorily protected activity; (2) the employer took an adverse personnel action; and (3) a causal connection existed between the two. 199 F.3d at 452. As in the case of a discrimination claim, in the retaliation context “[a]n ‘employment decision does not rise to the level of an actionable adverse action ... unless there is a tangible change in the duties or working conditions constituting a material employment disadvantage.’ ” Stewart, 275 F.3d at 1134 (quoting Walker v. WMATA, 102 F.Supp.2d 24, 29 (D.D.C.2000)). The D.C. Circuit has not ruled on whether a hostile work environment or other cumulative retaliatory harassment can constitute an “adverse personnel action” for the purposes of a retaliation claim. In some cases in this Court, judges have entertained claims for a retaliatory hostile work environment. See, e.g., Singletary v. District of Columbia, 225 F.Supp.2d 43, 62 (D.D.C.2002) (setting out elements for “hostile work environment claim based on retaliation”); Brodetski, 141 F.Supp.2d at 48 (“Hostile work environment claims more frequently accompany Title VII gender, race or national origin discrimination than retaliation claims. Nevertheless, there is little reason that a claim of hostile work environment should not be considered in cases of retaliation as well.”); Batson v. Powell, 912 F.Supp. 565, 576 (D.D.C.1996) (considering, but denying based on lack of credible evidence of causation, claim for hostile work environment in retaliation for filing an administrative complaint). Most Circuits have recently concluded that allegations of harassment"
},
{
"docid": "21664580",
"title": "",
"text": "F.Supp.2d 190, 195 (D.D.C.2008)). III. Analysis As enumerated above, Kilby-Robb brings claims of discrimination, retaliation, and—under a liberal reading of her Complaint—hostile work environment. The Court will discuss each claim separately. A. Race and Age Discrimination Kilby-Robb alleges that the Department subjected her to discrimination based on her race in violation of Title VII and based on her age in violation of the ADEA. Under both Title VII and the ADEA, since she is undisputedly a member of the relevant protected classes, Kilby-Robb must establish a prima facie case that she “(i) ... suffered an adverse employment action (ii) because of [her] race [or] age[.]” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008) (citing 42 U.S.C. § 2000e-16(a); 29 U.S.C. §§ 621 et seq.). To be materially adverse, an employment action need not result in a loss of salary or grade level. See id. (citing Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007). However, in the context of a discrimination claim, it must entail “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Baird v. Gotbaum, 662 F.3d 1246, 1249 (D.C.Cir.2011) (citing Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009)) (internal quotation marks omitted). In other words, a plaintiff must show that an action led to “objectively tangible harm.” Briscoe v. Kerry, 111 F.Supp.3d 46, 54 (D.D.C.2015) (quoting Doe v. Gates, 828 F.Supp.2d 266, 270 (D.D.C.2011)) (internal quotation marks omitted). Under the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), once a plaintiff has presented a prima facie case of discrimination by establishing an adverse action caused by a protected characteristic such as race or age, the burden shifts to the employer to assert a legitimate, non-discriminatory reason for its action. See Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008). At that point, courts at the summary judgment stage “must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that"
},
{
"docid": "8239092",
"title": "",
"text": "477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but the party opposing a motion for summary judgment must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal citations omitted). “[A] mere unsubstantiated allegation ... creates no genuine issue of fact and will not withstand summary judgment.” Ginger v. District of Columbia, 527 F.3d 1340 (D.C.Cir.2008) (quoting, Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)). A. Legal Standards “Under Title VII, the ADEA, and the Rehabilitation Act, the two essential elements of a discrimination claim are that (I) the plaintiff suffered an adverse employment action (ii) because of the plaintiffs race, color, religion, sex, national origin, age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. 2008). “[Tjypical adverse actions in employment discrimination cases” are being “fired or denied a job or promotion ... [or] suffering a] reduction! ] in salary or benefits,” Baloch, 550 F.3d at 1199, although other acts may qualify, such as “withdrawing an employee’s supervisory duties,” Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003), or “reassignment with significantly different responsibilities,” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). “To prove retaliation, the plaintiff generally must establish that he or she suffered (I) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch, 550 F.3d at 1198. “Adverse actions in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim ... [and] are not limited to discriminatory actions that affect the terms and conditions of employment and may extend to harms that are not workplace-related or employment-related so long as a reasonable employee would have found the challenged action materially adverse,” Id. at 1198 fn. 4 (internal citation omitted), “which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,”"
},
{
"docid": "15728744",
"title": "",
"text": "performing a ‘substantial class’ or 'broad range’ of jobs otherwise available to [her]” rather than demonstrating that she is unable to do her specific job. Duncan v. Washington Metropolitan Area Transit Authority, 240 F.3d 1110, 1115 (D.C.Cir.2001) (quoting Sutton v. United Air Lines, Inc., 527 U.S. at 491-92, 119 S.Ct. 2139). This assumes, of course, that working qualifies a major life activity, a premise that the Supreme Court has questioned. See Sutton v. United Air Lines Inc., 527 U.S. at 492, 119 S.Ct. 2139; Toyota Motor Mfg. v. Williams, 534 U.S. at 184, 122 S.Ct. 681. See also Scarborough v. Natsios, 190 F.Supp.2d 5, 21-22 & n. 15 (D.D.C.2002). . EPA also argues that even if the plaintiff were disabled, she would still not be entitled to relief because she was not subject to any adverse employment action in being reassigned to be a Program Analyst. The question is whether ordering an employee to work in conditions where she — but only she — will suffer health problems is an adverse employment action. EPA, relying on D.C. Circuit precedent, argues that an employment action is adverse only when the new assignment is objectively worse than the previous position. See Stewart v. Ashcroft, 352 F.3d 422, 426-27 (D.C.Cir.2003); Brown v. Brody, 199 F.3d 446, 455-57 (D.C.Cir.1999) (\"Mere idiosyn-cracies of personal preference” are insufficient to make out a. discrimination claim). Because the plaintiff has not been given any decrease in authority, salary, responsibility or the like (according to the defendant), EPA contends that ordering her to work at a particular location is not an adverse employment action. That may or may not be correct, depending on the circumstances. To require that an employment action be objectively adverse or, in the words of Brody, to cause \"objectively tangible harm,” Brown v. Brody, 199 F.3d at 457, is not to suggest that the change affect everyone identically. While plaintiffs medical condition places her in a somewhat unusual position, the entire point of the Rehabilitation Act and the Americans with Disabilities Act is to make employers conscious and tolerant of disabled employees’ relatively unusual limitations."
},
{
"docid": "19022817",
"title": "",
"text": "Board. Brooks Aff. at 2. III. ANALYSIS “Title VII prohibits federal agencies from discriminating against their employees based on race or sex,” McGrath v. Clinton, 666 F.3d 1377, 1379 (D.C.Cir.2012), “and from retaliating against them for asserting their rights under Title VII.” Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C.Cir.2011). To prove a case of discrimination or retaliation under Title VII, a plaintiff must demonstrate either that she has suffered an adverse employment action, see Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008) (discrimination); McGrath, 666 F.3d at 1379-81 (retaliation), or that she has been subjected to a hostile work environment, Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (discrimination); Hussain v. Nicholson, 435 F.3d 359, 366 (D.C.Cir.2006) (retaliation). Brooks claims only the latter, alleging that the MSPB discriminated against her on the basis of race and gender and retaliated against her for asserting her Title VII rights, all by subjecting her to a hostile work environment. The standards for finding a workplace illegally hostile are “sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). “To prevail on a hostile work environment claim, a plaintiff must show that his employer subjected him to discriminatory [or retaliatory] intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C.Cir.2011) (internal quotation marks omitted); Hussain, 435 F.3d at 366 (applying the standard to a retaliation claim). “ ‘[Conduct must be extreme to amount to a change in the terms and conditions of employment.’ For example, ‘simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.’ ” George, 407 F.3d at 416 (quoting Faragher, 524 U.S. at 788, 118 S.Ct. 2275)."
},
{
"docid": "11067299",
"title": "",
"text": "a claim under those employment discrimination laws. The District Court also concluded that Baloch had not produced sufficient evidence of an objectively hostile work environment for purposes of that claim. Baloch appeals, and our review is de novo. II We first address Baloch’s discrimination claim. Under Title VII, the ADEA, and the Rehabilitation Act, the two essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiffs race, color, religion, sex, national origin, age, or disability. See 42 U.S.C. § 2000e-16(a); 29 U.S.C. §§ 621 et seq.; 29 U.S.C. §§ 701 et seq.; Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008); Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008); see also Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999) (race discrimination under Title VII); Barnette v. Chertoff, 453 F.3d 513, 515 (D.C.Cir.2006) (age discrimination under the ADEA); Breen v. Dep’t of Transp., 282 F.3d 839, 841 (D.C.Cir.2002) (disability discrimination under the Rehabilitation Act). A plaintiff must prove both elements to sustain a discrimination claim. A In most employment discrimination cases that reach federal court, there is no dispute that the employee has suffered an adverse employment action, and the sole question is whether the action occurred because of discrimination. See Adeyemi, 525 F.3d at 1227; Brady, 520 F.3d at 493, 494 n. 2. In this case, however, the employer also contests whether Baloch suffered an adverse action. Baloch alleges that the change in his substantive duties after another Water Rights Specialist was hired constituted an adverse employment action. The initial problem for Baloch’s legal argument is that he was not fired or denied a job or promotion, and he did not suffer any reductions in salary or benefits, which are the typical adverse actions in employment discrimination cases. See, e.g., Brown, 199 F.3d at 455-56. To be sure, in Czekalski v. Peters, this Court said that an adverse employment action need not entail a loss of salary, grade level, or benefits if the plaintiff has “raised a genuine issue as to whether the reassignment"
},
{
"docid": "2913538",
"title": "",
"text": "expectations” close-out rating, nor the alleged procedural issues leading to its issuance constitute unlawful adverse employment actions. To establish a prima facie case of gender discrimination under Title VII (and thus under the CAA), the plaintiff must show that “(1) [she] is a member of a protected class; (2) [she] suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999); see also Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C.Cir.2003); Carroll v. England, 321 F.Supp.2d 58, 68 (D.D.C.2004). The USCP argues that the close-out performance evaluation did not constitute an adverse employment action in the context of a discrimination claim. The court agrees. In the context of discrimination claims, the D.C. Circuit has held that, in the absence of a diminution in pay or benefits, an employee does “not suffer an actionable injury unless there are some other materially adverse consequence s affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.” Brown, 199 F.3d at 457. “Mere idiosyncrasies of personal preference are not sufficient to state an injury.” Id. Likewise, “[m]inor and even trivial employment actions that ‘an irritable, chip-on-the-shoulder employee did not like’ ” are not actionable. Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). The Supreme “Court specifically identified ‘discharge, demotion, or undesirable reassignment’ as three examples of the kind of ‘tangible employment action’ for which an employee may bring a vicarious liability suit against her employer under Title VII.” Broum, 199 F.3d at 457 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 808, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). There is a “thick body of precedent ... refutfing] the notion that formal criticism or poor performance evaluations are necessarily adverse actions.” Id. at 458. This is because “[performance evaluations are likely to be ‘[i]nterlocutory or mediate decisions having no immediate effect upon employment’ ”"
},
{
"docid": "5641155",
"title": "",
"text": "assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.Cir.2008) (citations and internal quotation marks omitted). The defendant primarily argues that the plaintiffs Complaint should be dismissed for two reasons. First, the defendant argues that the plaintiff has failed to allege a cognizable “adverse employment action” with respect to her disparate treatment and retaliation claims. Def.’s Mot. to Dismiss (“Def.’s Mem.”) at 5-13, 15-16, ECF No. 4. Second, the defendant argues that the plaintiff has failed to allege facts that would elevate her workplace treatment to the level of a “hostile work environment.” Id. at 13-14. The Court agrees and as a result grants the defendant’s motion to dismiss the Complaint. A. Adverse Employment Action Title VII of the Civil Rights Act makes it unlawful for an employer to discriminate against any individual “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Under Title VII, “the two essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race, color, religion, sex, [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008); accord Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008). An “adverse employment action” is “ ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’” Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C.Cir.2011) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009)); see also Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003) (“[An] [a]dverse employment action .... [entails a] tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities.”). An adverse employment action occurs if an employee “experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that"
},
{
"docid": "21029582",
"title": "",
"text": "was reassigned from the position of Operating Committee Chairman to the position of Export Policy Analyst, and, second, that there is insufficient evidence from which a jury could reasonably conclude that plaintiffs sex was a reason for the reassignment. 1. Plaintiffs reassignment may be an actionable adverse action In Brody, the D.C. Circuit said that “[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” 199 F.3d at 456 (emphasis supplied). The court of appeals went on to say that “[a] plaintiff who is made to undertake ... a lateral transfer” — that is, a reassignment in which she suffers no diminution in pay or benefits — can maintain a cause of action under Title VII if she has endured “materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.” Id. at 457. In Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C.Cir.2003), the D.C. Circuit reiterated the principle it had articulated in Brody: “[Wjhile generally lateral transfers, or the denial of them, [will] not be considered adverse employment actions, there are circumstances where they [may] be.” And in the very recent case of Holcomb v. Powell, the court found such circumstances, holding that a Title VII plaintiff had suffered “materially adverse consequences that in-flictfed] objectively tangible harm” when, following an ostensibly “lateral” reassign ment, she spent two years doing work that was commensurate with a GS-5 position while continuing to be classified and paid at the GS-11 level. 433 F.3d 889, 902-03 (D.C.Cir.2006). Here, defendant contends that plaintiff did not suffer any actionable adverse employment consequences as a result of her reassignment from Operating Committee Chairman to Export Policy Analyst. Defendant emphasizes that plaintiff incurred no loss of grade, salary, or benefits, even though her precise job responsibilities changed to some degree. Defendant further suggests that the two positions are largely analogous, pointing to"
},
{
"docid": "21664579",
"title": "",
"text": "is ripe for consideration. II. Legal Standards The Court will grant summary judgment if the movant “shows that there is no genuine dispute as to any material fact,” such that “judgment as a matter of law” is proper. Fed. R. Civ. P. 56(a). The movant has the burden of showing the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), and the Court accepts as true the nonmovant’s evidence, drawing all reasonable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On the other hand, the nonmovant may not rely on mere allegations or conclusory statements. Veitch v. England, 471 F.3d 124, 134 (D.C.Cir.2006). The Court is “most likely” to grant summary judgment in favor of a defendant “when a plaintiffs claim is supported solely by the plaintiffs own self-serving, conclusory statements.” Mokhtar v. Kerry, 83 F.Supp.3d 49, 61 (D.D.C.2015) (quoting Bonieskie v. Mukasey, 540 F.Supp.2d 190, 195 (D.D.C.2008)). III. Analysis As enumerated above, Kilby-Robb brings claims of discrimination, retaliation, and—under a liberal reading of her Complaint—hostile work environment. The Court will discuss each claim separately. A. Race and Age Discrimination Kilby-Robb alleges that the Department subjected her to discrimination based on her race in violation of Title VII and based on her age in violation of the ADEA. Under both Title VII and the ADEA, since she is undisputedly a member of the relevant protected classes, Kilby-Robb must establish a prima facie case that she “(i) ... suffered an adverse employment action (ii) because of [her] race [or] age[.]” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008) (citing 42 U.S.C. § 2000e-16(a); 29 U.S.C. §§ 621 et seq.). To be materially adverse, an employment action need not result in a loss of salary or grade level. See id. (citing Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir.2007). However, in the context of a discrimination claim, it must entail “a significant change in employment status, such as hiring, firing, failing"
},
{
"docid": "5342670",
"title": "",
"text": "of here is not nearly as serious as the incident alleged in Tatum. Mr. DeGeorge did not physically accost Ms. Stewart. His verbal barrage of profanity was not sexually suggestive in any way or otherwise related to or caused by plaintiffs gender. Ms. Stewart’s claim of hostile work environment must, therefore, fail for the alternative reason that the incident complained of is not the type of severe and pervasive sexual harassment prohibited by Title VII. B. Retaliation Claim Ms. Stewart alleges that the defendant retaliated against her in violation of Title VII. In order to state a prima facie case of retaliation, plaintiff must demonstrate: (1) that she engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two. Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999). To establish an adverse personnel action in the absence of diminution of pay or benefits, plaintiff must show an action with “materially adverse consequences affecting the terms, conditions, or privileges of employment.” Id. at 457. An “employment decision does not rise to the level of an actionable adverse action ... unless there is a tangible change in the duties or working conditions constituting a material employment disadvantage.” Walker v. WMATA, 102 F.Supp.2d 24, 29 (D.D.C.2000) (citation omitted); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2268-69, 141 L.Ed.2d 633 (1998) (“A tangible employment action constitutes a significant change in employment status, such as hir ing, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”). Plaintiff contends that she suffered six different acts of retaliation. First, she alleges that Ms. Esserman, Ms. Freder-icks, and Ms. Taylor, of the General Counsel’s Office, interfered with and attempted to block her nomination for a Presidential Rank Meritorious Award. However, Ms. Stewart successfully obtained this Award for which she was nominated. Even if the Court accepts as true Ms. Stewart’s allegation that the members of the General Counsel’s Office attempted to block her nomination and selection for this award, Title"
},
{
"docid": "18986956",
"title": "",
"text": "based on her race.” Id. at 11-12. The plaintiff has presented a long list of actions taken by her supervisors with which she takes issue. See id. at 2-7. Several of these purportedly hostile actions, such as withholding the plaintiffs 2004 salary increase and requiring the plaintiff to attend special “coaching sessions” during work hours, had at least some tangible impact on the plaintiffs work life. See id. The plaintiff, however, has presented virtually no evidence suggesting any link between this allegedly hostile behavior and her race. Courts in this jurisdiction have routinely held that hostile behavior, no matter how unjustified or egregious, cannot support a claim of hostile' work environment unless there exists some linkage between the hostile behavior and the plaintiffs membership in a protected class. See Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C.Cir.2008) (upholding summary judgment on the plaintiffs hostile work environment claim in part because “none of the comments or actions directed at [the plaintiff] expressly focused on his race, religion, age, or disability”); Kline v. Springer, 602 F.Supp.2d 234, 243 (D.D.C. 2009) (granting summary judgment to the defendant on a hostile work environment claim because almost none of the comments relied on to support the claim had any direct connection to the plaintiffs race or sex and most of the comments were “completely unconnected to impermissible motive”); Chaple v. Johnson, 453 F.Supp.2d 63, 73-74 (D.D.C.2006) (observing that “[i]t must be clear that the hostile work environment was the result of discrimination based on a protected status”) (quoting Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 440 (2d Cir.1999)); Nichols v. Truscott, 424 F.Supp.2d 124, 139-40 (D.D.C.2006) (granting summary judgment to the defendant on a hostile work environment claim because “[o]nly a handful of the comments (and none of the conduct) by [the] plaintiffs coworkers could have been even remotely linked to [the] plaintiffs membership in a protected class” and “[t]hese isolated statements, while no doubt offensive to the plaintiff, simply are not ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’ on"
},
{
"docid": "16135620",
"title": "",
"text": "occurred. As detailed above, there were several events in February that should have prompted Stewart to inquire about the status of the job he sought. Rather, Stewart waited until June to have his attorney ask. This formalistic event simply does not salvage Stewart’s claim. Particularly troublesome is Stewart’s letter to So-low identifying Solow as Chief. Stewart’s response that calling Solow “Chief’ was a mere courtesy does not persuade this Court that Stewart was not aware of So-low’s selection prior to June 27,1998. Stewart failed to bring his claims regarding Solow’s selection to the EEO Counselor in a timely manner and failed to satisfy the tolling provision. Because timely exhaustion of administrative remedies is a prerequisite to a Title VII action against the federal government, the Solow selection is not properly before this Court. Bowden, 106 F.3d at 437. B. Adverse Employment Action Stewart contends that the District Court’s determination that he had not been subjected to an adverse employment action was erroneous. The District Court correctly noted that “plaintiff bears the burden of showing tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities.” Stewart v. Ashcroft, 211 F.Supp.2d at 173 (citing Brown, 199 F.3d at 452). The District Court also correctly noted that “a bruised ego” will not suffice to make an employment action adverse. Id. (quoting Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir.1994)). The District Court viewed Stewart’s situation as a denial of a lateral transfer, with no change in pay, benefits, or other material consequences. The Court therefore held he had “not suffered an objectively tangible harm.” Id. at 175 (quoting Freedman, 255 F.3d at 848). We most clearly addressed lateral transfers in Brown, where we held: A plaintiff who is made to undertake or who is denied a lateral transfer - that is, one in which she suffers no diminution in pay or benefits - does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment"
},
{
"docid": "8239093",
"title": "",
"text": "... [or] suffering a] reduction! ] in salary or benefits,” Baloch, 550 F.3d at 1199, although other acts may qualify, such as “withdrawing an employee’s supervisory duties,” Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003), or “reassignment with significantly different responsibilities,” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). “To prove retaliation, the plaintiff generally must establish that he or she suffered (I) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim.” Baloch, 550 F.3d at 1198. “Adverse actions in the retaliation context encompass a broader sweep of actions than those in a pure discrimination claim ... [and] are not limited to discriminatory actions that affect the terms and conditions of employment and may extend to harms that are not workplace-related or employment-related so long as a reasonable employee would have found the challenged action materially adverse,” Id. at 1198 fn. 4 (internal citation omitted), “which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 66, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Close temporal proximity to a plaintiffs EEOC activity can sometimes support an inference of retaliation, but only when “the employer knew that the plaintiff engaged in protected activity.” Moses v. Howard University Hosp., 474 F.Supp.2d 117 (D.D.C.2007) (citing Holcomb v. Powell, 433 F.3d 889 (D.C.Cir.2006)). Because “there is nothing inherently suspicious about an employer’s decision to promote a minority applicant instead of a white applicant ... or to fire a white employee ... a majority-group plaintiff alleging Title VII discrimination ... must show additional background circumstances that support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 851 (D.C.Cir.2006) (internal citations and quotations omitted). “Two general categories of evidence constitute background circumstances ... evidence indicating [that] the particular employer has some reason or inclination to discriminate invidiously against whites ... [and] evidence indicating that there is something fishy about the facts"
},
{
"docid": "985325",
"title": "",
"text": "the employer’s action must be more than ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’ ” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). “Typically, a materially adverse action in the workplace involves a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Id. (internal quotation marks omitted). A reduction in responsibilities can constitute a materially adverse action. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (finding adverse employment action where' plaintiffs “duties dramatically declined in both quantity, and quality”); Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir. 2007) (reassignment “with significantly diminished responsibilities\" constituted an adverse action); Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (“[Withdrawing an employee’s supervisory duties constitutes an adverse employment action!.]”); Saunders v. Mills, 842 F.Supp.2d 284, 293 (D.D.C. 2012) (“Be cause the Court has found'that the diminished responsibilities constituted a material change in her employment, the Court also holds that , such diminished responsibilities would dissuade a reasonable employee from making or supporting a charge of discrimination,”)- “Whether a particular reassignment of duties constitutes an adverse action for purposes of Title VII is generally a jury question. The court may not take that question away from the jury if a reasonable juror could find that the reassignment left the plaintiff with significantly diminished responsibilities.” Czekalski, 475 F.3d at 365 (citation omitted). . However, not all changes in assignments or responsibilities' constitute a materially adverse action. For instance, the “D.C, Gircuit has held that minor changes in work-related duties or opportunities do not constitute an actionable injury unless they are accompanied by some other adverse change in the terms, conditions or privileges of employment.” Stewart v. Evans, 275 F.3d 1126, 1135 (D.C. Cir. 2002). Further, in Jones, the D.C. Circuit held that although plaintiff received an assignment that “was generally less"
},
{
"docid": "5920107",
"title": "",
"text": "380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation and quotation marks omitted). The burden is on the moving party to demonstrate that there is an \"absence of a genuine issue of material fact\" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. DISCUSSION A. Racial Discrimination Claims The plaintiff has alleged that various actions by her supervisors constituted discrete acts of racial discrimination and also combined to create a hostile work environment based on race. These two theories of discrimination are independently actionable under Title VII. The Court will first analyze the plaintiffs claims of racial discrimination and will then address her hostile work environment claims. 1. Legal Standard “Title VII of the Civil Rights Act, as amended, provides that all `personnel actions affecting employees or applicants for employment’ in Executive agencies `shall be made free from any discrimination based on race.’\" Jackson v. Gonzales, 496 F.3d 703, 706 (D.C.Cir.2007) (quoting 42 U.S.C. § 2000e-16(a)). \"Under Title VII ... the two essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race, color, religion, sex, [or] national origin ...\" Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008). An adverse employment action generally entails a \"tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities.\" Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003). \"Where, as here, the record contains no direct evidence that the adverse employment action of which the plaintiff complains was caused by prohibited discrimination, we turn to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973), to analyze the claim.\" Jackson, 496 F.3d at 706 (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006)). \"Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.\" Id. (internal quotation marks and alteration omitted)."
},
{
"docid": "5641156",
"title": "",
"text": "sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Under Title VII, “the two essential elements of a discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race, color, religion, sex, [or] national origin.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008); accord Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008). An “adverse employment action” is “ ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’” Baird v. Gotbaum, 662 F.3d 1246, 1248 (D.C.Cir.2011) (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009)); see also Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003) (“[An] [a]dverse employment action .... [entails a] tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities.”). An adverse employment action occurs if an employee “experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). “[N]ot everything that makes an employee unhappy,” however, “is an actionable adverse action.” Baird, 662 F.3d at 1250 (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009)). Courts have routinely recognized the difference between “purely subjective injuries” on the one hand and' “objectively tangible harm” on the other. See, e.g., Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (internal quotation marks omitted). Because adverse employment actions must be “significant” and entail “objectively tangible harm,” the Supreme Court has recognized that “in most cases [adverse employment actions] inflictf] direct economic harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (emphasis added). As a result, “[c]ourts. applying Title VII have consistently focused on ‘ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating ... [and not] interlocutory or mediate decisions having, no immediate effect upon employment conditions.’ ” Taylor v. FDIC, 132 F.3d 753, 764 (D.C.Cir.1997). 1. Disparate Treatment"
},
{
"docid": "985324",
"title": "",
"text": "not litigated before the EEOC, defendant agency was indisputably put on notice of plaintiffs allegations.”); Laughlin v. Holder, 923 F.Supp.2d 204, 213 (D.D.C. 2013) (“Laughlin raised the issue of her 2008 bonus denial early in the administrative process, and just one week after she found out about it, thus giving the agency ample notice and a fair opportunity to resolve her claim.”). B. Plaintiff Has Plausibly Alleged a Materially Adverse Action and a Retaliatory Hostile Work Environment Defendant contends that Plaintiff has failed to state a Title VII retaliation claim because she has not plausibly alleged that she sustained a materially adverse action at the hands of her employer. “[T]o sustain a retaliation claim, the employee need only demonstrate that the employer’s challenged action would have been material to a reasonable employee, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination ....” Coleman, 867 F.3d at 215, 2017 WL 3480705 at *10 (internal quotation marks and alterations omitted). However, to “be materially adverse, the employer’s action must be more than ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’ ” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir. 2013) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). “Typically, a materially adverse action in the workplace involves a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Id. (internal quotation marks omitted). A reduction in responsibilities can constitute a materially adverse action. See Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) (finding adverse employment action where' plaintiffs “duties dramatically declined in both quantity, and quality”); Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C. Cir. 2007) (reassignment “with significantly diminished responsibilities\" constituted an adverse action); Stewart v. Ashcroft, 352 F.3d 422, 427 (D.C. Cir. 2003) (“[Withdrawing an employee’s supervisory duties constitutes an adverse employment action!.]”); Saunders v. Mills, 842 F.Supp.2d"
},
{
"docid": "5920108",
"title": "",
"text": "discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s race, color, religion, sex, [or] national origin ...\" Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008). An adverse employment action generally entails a \"tangible employment action evidenced by firing, failing to promote, a considerable change in benefits, or reassignment with significantly different responsibilities.\" Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003). \"Where, as here, the record contains no direct evidence that the adverse employment action of which the plaintiff complains was caused by prohibited discrimination, we turn to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973), to analyze the claim.\" Jackson, 496 F.3d at 706 (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006)). \"Although intermediate evidentiary burdens shift back and forth under this framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.\" Id. (internal quotation marks and alteration omitted). Where an employer has asserted legitimate, non-discriminatory reasons for the actions being challenged, the district court need not—and should not—decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer’s motion for summary judgment ... the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin? Diggs v. Potter, 700 F.Supp.2d 20, 40 (D.D.C.2010) (quoting Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008)); see also Hamilton v. Geithner, 666 F.3d 1344, 1351-52 (D.C.Cir. 2012). 2. Analysis of the Challenged Actions As discussed above, the plaintiff, in her opposition brief and Complaint, alleges nine categories of actions in which she experienced racial discrimination and a hostile work environment. Pl.’s Opp’n at 5; Compl. ¶¶ 24-32, 41. The Court will address each of these alleged"
}
]
|
717087 | v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2284, 141 L.Ed.2d 662 (1998) (“We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.”). We find, based on a consideration of all of the circumstances, that Moore’s conduct did not render Shepherd’s work environment objectively “hostile” or “abusive.” Shepherd’s claim involves far less objectionable circumstances than those for which courts afford relief. Moore’s comments were not as frequent or as serious as comments that we have found to alter the work environment. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir.1996) (finding that frequent egregious comments about sexual proclivity created hostile environment); cf. REDACTED The touching of Shepherd’s shoulder is not the type of severe conduct that courts have found to create a hostile environment. See, e.g., Wattman v. International Paper Co., 875 F.2d 468, 478 (5th Cir.1989) (concluding hostile environment existed where female employee sexually groped repeatedly); Hall v. Gus Const. Co., 842 F.2d 1010, 1012 (8th Cir.1988) (finding hostile environment where male coworkers cornered women and rubbed their thighs, grabbed their breasts, and held a woman so that a man could touch her). There is no evidence of an atmosphere of sexual inequality at the Comptroller’s office. See DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596 (5th Cir.1995) | [
{
"docid": "22033470",
"title": "",
"text": "the challenged conduct must create an environment that a reasonable person would find hostile or abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, -, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Whether an environment is hostile or abusive depends on a totality of circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance. Id. at -, 114 S.Ct. at 371. Long’s sole basis for her hostile work environment claim is an offensive joke concerning condoms which Clark told in her presence. The Supreme Court has previously contrasted physically threatening or humiliating conduct, which will support a claim for hostile work environment, from a “mere offensive utterance,” which will not. Id. We find that the alleged joke in this ease is exactly the type of mere offensive utterance which should not, by itself, support a claim for hostile work environment. See DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 595 (5th Cir.) (finding ten offensive articles in a police newspaper insufficient to support a hostile work environment claim), cert. denied, — U.S. -, 116 S.Ct. 473, 133 L.Ed.2d 403 (1995). Accordingly, we hold that the district court did not err in granting summary judgment for Eastfield College on Long’s Title VII hostile work environment claim. Ill Based on the foregoing, we AFFIRM the district court’s order insofar as the district court grants summary judgment for East-field College on Long and Reavis’s Title VII hostile work environment claims. We REVERSE the district court’s order insofar as the district court grants summary judgment for Eastfield College on Long and Reavis’s Title VII unlawful retaliation claims. We REMAND to the district court for further proceedings consistent with this opinion. . Reavis, a woman of Hispanic heritage, asserts that Kelley, an African-American woman, repeatedly subjected her to racial slurs, forced her to perform demeaning tasks, berated her because she did not speak Spanish, and thwarted her attempts to file"
}
]
| [
{
"docid": "22923473",
"title": "",
"text": "were drawn on the walls of the powerhouse, on the restroom walls and on the elevator.” Id. Some of these drawings were directed at Waltman. Waltman also testified that many of the men would leave their lockers open and that the lockers contained pornographic pictures and used tampons. Id. at 471 & n. 1. Waltman’s supervisor testified that the walls of the work space contained drawings of naked men and women. Id. at 471. On one occasion, one employee told another that ‘Waltman was a whore and that she would get hurt if she did not keep her mouth shut.” Id. On another occasion, Waltman’s coworker told her that he “would cut off her breast and shove it down her throat.” Id. That same coworker later “dangled Waltman over a stairwell, more than thirty feet from the floor.” Id. On other occasions, Waltman’s coworkers grabbed her breasts and thighs. Id. Waltman testified that eighty percent of the men in her work place had made sexual comments to her at some point, and a week did not go by without such comments being made. Id. On these facts, we held that Waltman had raised a fact issue re garding the existence of a hostile work environment at her work place. Id. at 478. The Supreme Court has repeatedly stated that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citation omitted)(citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Therefore, contrasting the facts in Shepherd to those in Farpellar-Crosby and Wattman, we held that Moore’s' comments were “boorish and offensive,” but not severe. 168 F.3d at 874. Rather, “each comment made by Moore [was] the equivalent of a mere utterance of an epithet that engenders offensive feelings,” but did not suffice to survive summary judgment. Id. (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367). In short, Moore’s comments were"
},
{
"docid": "23049965",
"title": "",
"text": "an environment is hostile. We agree with Shepherd that the comments made by Moore were boorish and offensive. The comments, however, were not severe. We find each comment made by Moore to be the equivalent of a mere utterance of an epithet that engender offensive feelings. See id. at 21, 114 S.Ct. at 370. In Admumilli v. City of Chicago, the Seventh Circuit considered averments of conduct similar to Moore’s, including several incidents that involved staring and unwanted touching between the elbow and shoulder. See Adusumilli, 164 F.3d 353, 357 (7th Cir.1998). The court noted that, “the most salient feature of the harassment is its lack of severity.” Id. at 361. The court concluded that the conduct was too tepid to amount to actionable harassment. See id. at 362. We find similarly that Moore’s stares and the incidents in which he touched Shepherd’s arm, although they occurred intermittently for a period of time, were not severe. None of Moore’s actions physically threatened Shepherd. Nor would Moore’s conduct interfere unreasonably with a reasonable person’s work performance. Furthermore, Moore’s actions did not undermine Shepherd’s workplace competence. See Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir.1998) (considering, in addition to the other factors, that “[a] plaintiff ... must show that implicit or explicit in the sexual content is the message that the plaintiff is incompetent because of her sex”). “Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected classmember’s opportunity to succeed in the workplace.” Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997). Moore’s harassing actions, although offensive, are not the type of extreme conduct that would prevent Shepherd from succeeding in the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2284, 141 L.Ed.2d 662 (1998) (“We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.”). We find, based on a consideration of all"
},
{
"docid": "22923474",
"title": "",
"text": "not go by without such comments being made. Id. On these facts, we held that Waltman had raised a fact issue re garding the existence of a hostile work environment at her work place. Id. at 478. The Supreme Court has repeatedly stated that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citation omitted)(citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Therefore, contrasting the facts in Shepherd to those in Farpellar-Crosby and Wattman, we held that Moore’s' comments were “boorish and offensive,” but not severe. 168 F.3d at 874. Rather, “each comment made by Moore [was] the equivalent of a mere utterance of an epithet that engenders offensive feelings,” but did not suffice to survive summary judgment. Id. (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367). In short, Moore’s comments were not in the same league as that behavior for which courts afford relief under Title VII. Id. at 874-75. Here, Hockman claims that in the approximate year and a half that she worked for Westward, Rogers harassed her in the following ways: (1) he once made a remark to Hockman about another employee’s body, (2) he once slapped her on the behind with a newspaper, (3) he “grabbed or brushed” against Hockman’s breasts and behind, (4) he once held her cheeks and tried to kiss her, (5) he asked Hockman to come to the office early so that they could be alone, and (6) he once stood in the door of the bathroom while she was washing her hands. This conduct is perhaps even less egregious than that alleged in Shepherd. Cf. Shepherd, 168 F.3d at 872 (describing the harassment, which included Moore remarking that “[Shepherd’s] elbows [were] the same color as [her] nipples,” commenting on the size of Shepherd’s thighs while pretending to look under her desk, and attempting to look down Shepherd’s clothing)."
},
{
"docid": "2050766",
"title": "",
"text": "the form of benefit delays; it certainly does not rise to the level of a hostile environment. As proof of this fact the undersigned points the reader to the following cases in which courts have refused to characterize work environments as hostile even in situations in which there are some indi- cia of harassing or discriminatory conduct. See, e.g., Skouby v. Prudential Ins. Co., 130 F.3d 794, 797 (7th Cir.l997)(female employee’s allegations that she was presented with drawings of male coworker that included references to love or marriage, that she was subjected to constant unwelcome sexual references, that male coworkers talked about going to striptease clubs and had football brochures that featured provocatively dressed woman on the cover, and that males were given information and assistance with planning sales calls and were regularly assisted by their managers, while she was not, were not sufficiently severe or pervasive to create hostile working environment under Title VII); Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir.l997)(male co-workers’ sex-based comments in female employee’s presence were insufficiently severe or pervasive to create objectively hostile work environment in violation of Title VII; even if employee was personally hurt, crushed, and devastated by comments, comments were merely offensive and were not directed at employee), cert, denied, 522 U.S. 865, 118 S.Ct. 172, 139 L.Ed.2d 114 (1997); Baskerville v. Culligan International Co., 50 F.3d 428, 430-31 (7th Cir.l995)(no sexually hostile work environment where supervisor engaged in “occasional vulgar banter, tinged with sexual innuendo.”); Stoeckel v. Environmental Management Systems, Inc., 882 F.Supp. 1106, 1114 (D.D.C.1995)(no sexually hostile work environment where supervisor commented upon plaintiffs dress as well as his own dating life, touched plaintiffs neck, shoulder, or clothing on at least two occasions, and made an effort to kiss plaintiff); DeAngelis v. El Paso Municipal Police Officers Association, 51 F.3d 591 (5th Cir.l995)(anonymous comments in police association’s newsletter directed toward female police officer and toward female officers in general were not so frequent, pervasive, or pointedly insulting as to create hostile working environment under Title VII; four printed derogatory references to officer at irregular intervals in two"
},
{
"docid": "23049964",
"title": "",
"text": "City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (citation omitted). Whether an environment is “hostile” or “abusive” is determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. See Harris, 510 U.S. at 23, 114 S.Ct. at 371. To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. See id. at 21-22, 114 S.Ct. at 370. Whether Moore’s comments and actions rendered Shepherd’s working environment objectively “hostile” or “abusive” must be considered in light of the totality of the circumstances. Shepherd alleges that Moore’s harassing actions spanned a period of time over a year. Even if the conduct occurred with some regularity over this time period, we must also’consider the other factors that contribute to whether an environment is hostile. We agree with Shepherd that the comments made by Moore were boorish and offensive. The comments, however, were not severe. We find each comment made by Moore to be the equivalent of a mere utterance of an epithet that engender offensive feelings. See id. at 21, 114 S.Ct. at 370. In Admumilli v. City of Chicago, the Seventh Circuit considered averments of conduct similar to Moore’s, including several incidents that involved staring and unwanted touching between the elbow and shoulder. See Adusumilli, 164 F.3d 353, 357 (7th Cir.1998). The court noted that, “the most salient feature of the harassment is its lack of severity.” Id. at 361. The court concluded that the conduct was too tepid to amount to actionable harassment. See id. at 362. We find similarly that Moore’s stares and the incidents in which he touched Shepherd’s arm, although they occurred intermittently for a period of time, were not severe. None of Moore’s actions physically threatened Shepherd. Nor would Moore’s conduct interfere unreasonably with a reasonable person’s work performance."
},
{
"docid": "17483372",
"title": "",
"text": "acts of alleged harassment, although by no means ideal workplace conduct, are not “sufficiently severe or pervasive to alter the conditions of [Akonji’s] employment and create an abusive working environment.” Harris, 510 U.S. at 21, 114 S.Ct. 367 (citation and quotation marks omitted). Title VII, the Supreme Court has explained, is not intended to be a “general civility code” in the workplace; rather, “it forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Oncale, 523 U.S. at 80-81, 118 S.Ct. 998. The alleged instances of sexual harassment, comprised of five discrete acts over the two-year period as well as infrequent inappropriate comments and staring, do not reach the level of “severe” or “extremely serious” conduct that is required by the Supreme Court to state a claim for hostile-work-environment discrimination. Federal courts have found that similar conduct, including offensive comments, staring, and unwanted touching, did not meet the standard of severe and pervasive conduct as articulated by the Supreme Court. See, e.g., Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.1999) (concluding that “boorish and offensive” comments, combined with “several incidents that involved staring and unwanted touching between the elbow and shoulder,” was not severe in relation to a hostile-work-environment claim); Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.1998) (determining that teasing, ambiguous comments, staring and attempts to make eye contact, and four isolated incidents in which a co-worker briefly touched the plaintiffs fingers, arm, or buttocks did not amount to a hostile work environment); Carter v. Greenspan, 304 F.Supp.2d 13, 25 (D.D.C.2004) (concluding that an employee’s allegations that the employer “ ‘caressed [him] on his knee,’ ‘placed her breast on [his] arm,’ and ‘placed his fingers on her buttocks’ ” were not “sufficiently severe in quantity or quality” to create a hostile work environment) (alteration in original); see also Curry v. District of Columbia, 195 F.3d 654, 662 (D.C.Cir.1999) (separate opinion of Henderson, J.) (citing the Shepherd and Adusumilli decisions with approval). Furthermore, the five alleged discrete acts of harassment that Akonji experienced — the first four occurring"
},
{
"docid": "8826865",
"title": "",
"text": "omitted). .See, e.g., Butler v. Ysleta Ind. Sch. Dist., 161 F.3d 263, 269 (5th Cir.1998)(listing \"frequency of discriminatory conduct” as but one factor to consider and stating it should not be given \"undue weight”); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1072 (10th Cir.1998)(\"We therefore disagree with defendants’ assertions that a single incident of physically threatening conduct can never be sufficient to create an abusive environment.”); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998)(\"[E]ven a single incident of sexual assault sufficiently alters the conditions of the victim’s employment ....”) (citation and quotation omitted) (alteration in original). . Harris, 510 U.S. at 23, 114 S.Ct. 367. . See Southard v. Texas Bd. of Crim. Justice, 114 F.3d 539, 555 (5th Cir.1997) (holding official, who stared at female plaintiff, made suggestive comments to her, and slammed her door, was entitled to qualified immunity because his conduct was not severe or pervasive enough to constitute sexual harassment). . See Harris, 510 U.S. at 19, 21-23, 114 S.Ct. 367; Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 805-06 (5th Cir.1996). . See DeAngelis v. El Paso Mun. Police Officers Assoc., 51 F.3d 591, 595-96 (5th Cir.1995) (holding ten columns in association newsletter containing derogatory statements about women, only four of which referred to plaintiff, could not alone amount to actionable sexual harassment); Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir.1996) (single offensive joke did not support claim for hostile work environment). . Although Judge Jones purports to assume ar-guendo and therefore not decide whether Indest was subjected to a sexually hostile work environment, she concludes (as do I): \"As far as the entire context of Indest's employment with Freeman is concerned, [], Arnaudet’s misbehavior was neither severe nor pervasive.” Jones Op. at 264. . Id. at 266. .It is, of course, theoretically possible for a supervisor to engage in sufficiently severe conduct (e.g., raping, \"flashing,” or forcibly groping or disrobing the subordinate employee) in such a short period of time that, even though (1) the employee reports the conduct immediately, (2) the employer takes swift and decisive"
},
{
"docid": "22923469",
"title": "",
"text": "as it started, with a couple of exceptions — just as quickly as it started, it ended .... And once it was over, it was over.” Second, we have found judgment as a matter of law appropriate in cases with facts more egregious than those that Hockman alleges here. In Shepherd v. Comptroller of Public Accounts, for example, Shepherd testified that her coworker, Moore, told her, “your elbows are the same color as your nipples,” and “you have big thighs” while he simulated looking under her dress. 168 F.3d at 872. Moore stood over Shepherd’s desk on several occasions and tried to look down her clothing. Id. He also “touched her arm on several occasions, rubbing one of his hands from her shoulder down to her wrist while standing beside her.” Id. Finally, on two occasions, after coming in late to an office meeting, “Moore patted his lap and remarked, ‘here’s your seat.’ ” Id. In Shepherd, we held that Moore’s comments were not as frequent or severe as those we had previously found to alter the workplace environment. Id. at 874-75. To illustrate how frequent harassment must be to sustain a hostile-work-environment claim under Title VII, we contrasted the facts of Shepherd with two other Fifth Circuit cases in which the harassment was severe enough for the' plaintiffs to withstand the defendants’ motions for judgment as a matter of law. Id. at 875. In Farpella-Crosby v. Horizon Health Care, the defendant’s comments were considered frequent and severe enough to sustain a jury verdict for the plaintiff. 97 F.3d 803, 805 (5th Cir.1996). In that case, Defendant Blanco frequently made comments “attributing Farpella-Crosby’s large number of children to a proclivity to engage in sexual activity.” Id. Specifically, Farpella-Crosby complained of the following behavior by Blanco: Blanco repeatedly commented that he “knew what she liked to do” because she had seven children and that she “must not have a television.” At a baby shower held at the facility for another employee, Blanco joked to the group that Farpella-Crosby “[didn’t] know how to use condoms.” Blanco also frequently inquired about Farpella-Crosby’s sexual"
},
{
"docid": "23264633",
"title": "",
"text": "conduct is pervasive but not severe, and so is not actionable. Hockman subsequently relied heavily on comparing its facts to Shepherd’s in finding that the work environment at issue was not sufficiently hostile to be actionable. Hockman, 407 F.3d at 326-29. Setting aside, however, the error of Shepherd and Hockman, the compressed time frame here makes the conduct more pervasive than the conduct in both of those cases. When we found in Shepherd that sexually suggestive comments were “mere utteranee[s],” we noted that the specified comments were spread out over a period lasting more than a year, obviously diluting their pervasive characteristic. 168 F.3d at 874. The court’s approach was similar in Hockman, where in holding that the verbal and physical conduct at issue did not violate Title VII, we noted that the enumerated instances of objectionable conduct were scattered over a year and a half period. 407 F.3d at 328. By contrast, the conduct at issue here could be seen as pervasive because it was compacted into a four-day period. Furthermore, we think that the magistrate judge also overemphasized the lack of physical contact. Certainly, lack of physical contact is a factor to consider. But it is hardly dispositive. It is unsurprising that we have held previously that a reasonable jury could find that coworkers created a hostile work environment despite having no physical contact with the plaintiff. See, e.g., Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir.1996) (upholding a jury verdict against a judgment n.o.v. challenge where a coworker “inquired about [the plaintiffs] sexual activity or made comments similarly offensive two or three times a week”); Glorioso v. Mississippi Dept. of Corrs., 193 F.3d 517, 1999 WL 706173, at *4-6. (5th Cir.1999) (unpublished) (reversing summary judgment on a retaliation claim that was based on the plaintiffs perception that she had been sexually harassed when a coworker called her a “bitch”). We conclude that Royal has shown a genuine dispute of material fact whether the maintenance men’s described behavior created a hostile work environment based upon sexual harassment violating Title VII. ■C. We next consider whether"
},
{
"docid": "23419940",
"title": "",
"text": "discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23, 114 S.Ct. 367. However, Title YII is “not designed to purge the workplace of vulgarity.” Baskerville v. Culligan Int’l Co., 50 F.3d 428, 430 (7th Cir.1995). These standards are designed to “filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (internal quotations omitted). The evidence presented at trial illustrates that Duncan was upset and embarrassed by the posting of the derogatory poster and was disturbed by Booth’s advances and his boorish behavior; but, as a matter of law, she has failed to show that these occurrences in the aggregate were so severe and extreme that a reasonable person would find that the terms or conditions of Duncan’s employment had been altered. See Scusa, 181 F.3d at 967 (experiencing unpleasant conduct and rude comments does not equate to severe or pervasive harassment that altered conditions of employment). Numerous cases have rejected hostile work environment claims premised upon facts equally or more egregious than the conduct at issue here. See, e.g., Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 872, 874 (5th Cir.) (holding that several incidents over a two-year period, including the comment “your elbows are the same color as your nipples,” another comment that plaintiff had big thighs, repeated touching of plaintiffs arm, and attempts to look down the plaintiffs dress, were insufficient to support hostile work environment claim), cert. denied, 528 U.S. 963, 120 S.Ct. 395, 145 L.Ed.2d 308 (1999); Adusumilli v. City of Chicago, 164 F.3d 353, 357, 361-62 (7th Cir.1998) (holding conduct insufficient to support hostile environment claim when employee teased plaintiff, made sexual jokes aimed at her, told her not to wave at police officers “because people would think she was a prostitute,” commented about low-necked tops, leered at her breasts, and touched her arm,"
},
{
"docid": "22795763",
"title": "",
"text": "conversation that Endres had with both LeMaire and Ms. Doiron. This evidence indicates that En-dres discussed his sexual encounters in the presence of both genders, and supports the conclusion that he did not single out Le-Maire because of his sex. Additionally, LeMaire has not shown that the alleged harassment affected a term, condition, or privilege of his employment. See Woods, 274 F.3d at 298. “Conduct sufficient to create a hostile working environment must be severe or pervasive.” Septimus v. Univ. of Houston, 399 F.3d 601, 611 (5th Cir.2005). This Court also considers “the degree to which the conduct is physically threatening or humiliating.” Id. The conversation alleged by LeMaire was clearly inappropriate, but he does not allege that Endres made any physical threats. Further, LeMaire’s conclusory allegations do not specify how often the alleged harassment occurred. “A recurring point in [our] opinions is that ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citations omitted). The offhand comments made during the isolated incidents alleged by LeMaire simply do not rise to the level of actionable sexual harassment. See id. (noting that “sporadic use of abusive language, gender-related jokes, and occasional teasing” are not actionable); see also Shepherd, 168 F.3d at 872, 874 (holding that offensive comments accompanied by touching that occurred over a period exceeding one year did not affect a term, condition, or privilege of employment); cf. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 435-36 (5th Cir.2005) (finding an actionable hostile work environment where the alleged harrasser kissed the plaintiff, touched her breasts and patted her buttocks “numerous times” and made inappropriate comments). It is clear, as the majority points out, that some factual disputes exist. For example, LaDOTD argues that the alleged offensive conduct never occurred.. But only disputes that can affect the outcome under the applicable law will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91"
},
{
"docid": "22357363",
"title": "",
"text": "the conduct and comments are sufficiently continuous and concerted to be deemed pervasive and damaging to her work environment. Assuming arguendo that no single one of the comments or instances of physical conduct was sufficiently egregious on its own, when taken together they do describe a work environment in which a jury could find that men, including Gorzynski’s supervisor, were able to — and did at will — comment inappropriately on women as sexual objects. The evidence does not reveal a “mere offensive utterance,” but a pattern in which female employees such as Gorzynski could expect sexual remarks and other harassment at any time. The fact that other women in addition to Gorzynski testified to the harassing and pervasive nature of Celeste’s behavior further supports her claim. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1415-16 (10th Cir. 1987) (explaining that incidents of sexual harassment directed at employees other than the plaintiff can be used as proof of a hostile work environment claim because one of the critical inquiries is the “general work atmosphere” as well as specific hostility to the plaintiff). Given the short period of time in question and the quantity of comments, touching, and other conduct alleged, we find that Gorzynski has created a genuine issue as to whether she faced a hostile work environment. Beyond demonstrating a hostile work environment, a plaintiff must show a basis for imputing the objectionable conduct to the employer. Alfano, 294 F.3d at 373. When, as here, the alleged harasser is in a supervisory position over the plaintiff, -the objectionable conduct is automatically imputed to the employer. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). But even then the defending employer may be permitted, subject to proof by a preponderance of the evidence, to raise the Faragher/Ellerth affirmative defense to liability or damages. See Ellerth, 524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118 S.Ct. 2275; Ferraro v. Kellwood Co., 440"
},
{
"docid": "23049967",
"title": "",
"text": "of the circumstances, that Moore’s conduct did not render Shepherd’s work environment objectively “hostile” or “abusive.” Shepherd’s claim involves far less objectionable circumstances than those for which courts afford relief. Moore’s comments were not as frequent or as serious as comments that we have found to alter the work environment. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir.1996) (finding that frequent egregious comments about sexual proclivity created hostile environment); cf. Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir.1996) (finding single joke involving condoms insufficient to create hostile environment). The touching of Shepherd’s shoulder is not the type of severe conduct that courts have found to create a hostile environment. See, e.g., Wattman v. International Paper Co., 875 F.2d 468, 478 (5th Cir.1989) (concluding hostile environment existed where female employee sexually groped repeatedly); Hall v. Gus Const. Co., 842 F.2d 1010, 1012 (8th Cir.1988) (finding hostile environment where male coworkers cornered women and rubbed their thighs, grabbed their breasts, and held a woman so that a man could touch her). There is no evidence of an atmosphere of sexual inequality at the Comptroller’s office. See DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596 (5th Cir.1995) (considering this factor when comparing cases). The Comptroller has a sexual harassment policy in place and educates new employees about the policy. Furthermore, Shepherd does not allege that supervisors or co-workers other than Moore engaged in the harassment. See id. (same). The comparison to other cases bolsters our conclusion that, based on the totality of the circumstances, Shepherd has not demonstrated a genuine issue that the harassment created a “hostile” or “abusive” working environment. Viewing the harassment in light of existing caselaw, we hold that Shepherd has not raised a genuine issue that the harassment affected a “term, condition, or privilege” of employment. Thus, we do not reach the question of whether the Comptroller knew or should have known of the harassment and failed to take prompt remedial action. We AFFIRM the grant of summary judgment by the district court. . We may affirm a grant"
},
{
"docid": "23049963",
"title": "",
"text": "Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995). We turn to whether Shepherd has raised a genuine issue that Moore’s harassment affected a “term, condition, or privilege” of her employment. The Supreme Court explained in Mentor that, “[f]or sexual harassment to be actionable, it must be sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” 477 U.S. at 67, 106 S.Ct. at 2403 (citation omitted). Not all harassment will affect a term, condition, or privilege of employment. See id. The “ ‘mere utterance of an ... epithet which engenders offensive feelings in a employee’ does not sufficiently affect the conditions of employment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (quoting Meritor, 477 U.S. at 67, 106 S.Ct. at 2405). “A recurring point in [Supreme Court] opinions is that ‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (citation omitted). Whether an environment is “hostile” or “abusive” is determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. See Harris, 510 U.S. at 23, 114 S.Ct. at 371. To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so. See id. at 21-22, 114 S.Ct. at 370. Whether Moore’s comments and actions rendered Shepherd’s working environment objectively “hostile” or “abusive” must be considered in light of the totality of the circumstances. Shepherd alleges that Moore’s harassing actions spanned a period of time over a year. Even if the conduct occurred with some regularity over this time period, we must also’consider the other factors that contribute to whether"
},
{
"docid": "11102573",
"title": "",
"text": "protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his membership in the protected group; (4) the harassment affected a term, condition, or privilege of employment; and (5) his employer knew of or should have known of the harassment and failed to take prompt remedial action. Ramsey, 286 F.3d at 268. The Secretary does not dispute that Lara is a member of a protected group. Lara does not have to satisfy the fifth element because almost all of the incidents of alleged harassment were committed by his supervisor, Coston. (Docket Entry No. 15 at 12); see Celestine, 266 F.3d at 353-54 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). For conduct to be actionable as harassment, it must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ramsey, 286 F.3d at 268 (internal quotation marks and citation omitted); Watkins v. Texas Dept, of Criminal Justice, 269 Fed.Appx. 457, 463-464 (5th Cir.2008). “To be actionable, the challenged conduct must be both objectively offensive, meaning that a reasonable person would find it hostile and abusive, and subjectively offensive, meaning that the victim perceived it to be so.” Harvill v. Westward Communications LLC, 433 F.3d 428, 434 (5th Cir.2005) (citing Shepherd v. Comptroller of Pub. Accounts, 168 F.3d 871, 874 (5th Cir.1999)). The Supreme Court has made clear “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” The evidence, viewed in the light most favorable to Lara, does not show comments or conduct that is so offensive or frequent as to give rise to a hostile work environment. There is no indication that any of the alleged incidents of harassment in Lara’s office were racially or sexually offensive in nature. See Vallecillo v. U.S. Dep’t of Housing and Urban Dev., 155 Fed.Appx. 764, 767 (5th Cir.2005) (affirming summary judgment on a hostile work environment claim when the complained-of harassment was not based"
},
{
"docid": "9864196",
"title": "",
"text": "the jury could have concluded that Blanco’s comments and questions were sufficiently severe and pervasive as to alter the conditions of her employment and create an abusive working environment. Both Farpella-Crosby and her co-worker testified that Blanco inquired about Farpel-la-Crosby’s sexual activity or made comments similarly offensive two or three times a week. The record reflects that Blanco made many egregious comments to Farpella-Crosby, some in front of co-workers, that in combination with his frequent inquisition about her sexual activity were sufficiently severe and pervasive to create a hostile work environment. B. An employer is liable for the discrimi-natoiy acts of an employee only if it knew or should have known of the employee’s offensive conduct and failed to take steps to repudiate that conduct and eliminate the hostile environment. Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir.1993) (citing Jones, 793 F.2d at 720). As this court noted in Wattman v. International Paper Co., the type and extent of notiee necessary to impose liability on an employer under Title VII are the subject of some uncertainty. 875 F.2d 468, 478 (5th Cir.1989) (concluding that three separate complaints to higher management constituted sufficient notice). Whether Farpella-Crosby presented sufficient evidence to support the jury’s finding that Horizon knew or should have known of the harassment is undoubtedly a close question. To show that Horizon knew or should have known that she was being subjected to a hostile work environment, Farpel-la-Crosby relies primarily on her conversations with human resource directors at the Mountain View Place facility. Both of the human resource directors testified that under the company’s sexual harassment policy, a report of sexual harassment to a human resources director would constitute notice to Horizon. After testifying extensively about Blanco’s comments and questions relating to her sexual activities, Farpella-Crosby was asked whether she “reported] these comments and these types of intrusions into [her] personal life.” She responded affirmatively. She told Belinda Callejo, a human resource director at Mountain View Place, that Jose Blanco “was making comments into [her] personal life” and that he made “personal comments” that she did not"
},
{
"docid": "17182399",
"title": "",
"text": "alleged activities at Defendant’s branch may have been crude and inappropriate, Defendant contends that they were not severe or pervasive enough to be actionable. Plaintiff, however, argues that the facts that she alleges clearly paint a picture of pervasive harassment occurring over her entire tenure at Morgan Stanley. As set forth below, the Court finds that there is an issue of material fact with respect to whether the alleged harassment was sufficiently pervasive to affect a “term, condition or privilege” of Lohn’s employment. A plaintiff must demonstrate the following to establish an actionable claim of sexual harassment in the workplace: (1) she belongs to a protected class; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a “term, condition or privilege of employment”; and (5) the employer either knew or should have known of the harassment and failed to take prompt remedial action. DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.1995) (citing Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir.1986), cert. denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987)). The Supreme Court has held that, in order to be actionable under the statute, “a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). The criteria for a hostile work environment are as follows: “(1) [s]exually discriminatory intimidation, ridicule and insults, which are (2) sufficiently severe or pervasive that they (3) alter the conditions of employment and (4) create an abusive working environment.” DeAngelis, 51 F.3d at 594 (citing Harris, 510 U.S. at 21, 114 S.Ct. 367). “In determining whether an environment is ‘hostile’ or ‘abusive’ within the meaning of Title VII, courts look at the totality of the circumstances.” Harvill v. Westward"
},
{
"docid": "7062818",
"title": "",
"text": "even to use the term “sexual harassment” in complaining about it to Chestnut months later. On the scale of what has been recognized as egregious conduct rising to the required level, this was not close. See, e.g., Oncale, 523 U.S. at 77, 81, 118 S.Ct. 998 (holding that a male employee working on an oil platform had a cause of action for a hostile work environment against his male coworkers who subjected him to “sex-related, humiliating actions” and threatened him with rape); Billings v. Town of Grafton, 515 F.3d 39, 47-50 (1st Cir.2008) (reversing a grant of summary judgment in favor of employer on a hostile work environment claim where supervisor repeatedly and egregiously stared at a female employee’s breasts on many occasions over a multi-year period); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir.2002) (affirming jury finding of a hostile work environment where female plaintiff was subject to “harassment on a daily basis, including humiliating sexual remarks and innuendos,” for over a year); Crowley, 303 F.3d at 397 (affirming Title VII judgment in favor of female employee where a four-month period of a coworker’s unwant ed touching and innuendo culminated in his breaking into the employee’s home and accosting her); O’Rourke v. City of Providence, 235 F.3d 713, 718-20 (1st Cir.2001) (reinstating a hostile work environment verdict in favor of fire department’s first female firefighter where one coworker “constantly discussed sexual positions and oral sex,” and another “blew in her ear, rubbed his cheek against hers, and stood over her with their bodies squarely touching as she made copies,” among other things). No reasonable jury could conclude that these incidents “amount[ed] to a change in the ‘terms and conditions of employment,’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), or created a hostile work environment. The record does not support a finding that the two incidents interfered with Ponte’s job performance. At most, Ponte testified that Lau’s behavior [ijmpacted the relationship that I feel I needed to have in this role. I know that in"
},
{
"docid": "9351077",
"title": "",
"text": "n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (“All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.”). It is not enough, furthermore, that the plaintiff feel intimidated or abused. To be actionable, the offensive conduct must create “an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive .... ” Harris, 510 U.S. at 21, 114 S.Ct. 367 (1993); see also Oncale, 523 U.S. at 81, 118 S.Ct. 998 (“the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances”) (internal quotation and citation omitted). Assuming that Mr. Carter’s allegations that Ms. Edwards “caressed [him] on his knee,” “placed her breast on [his] arm,” and “placed her fingers on [his] buttocks” are true, as one must do at this stage, these three isolated incidents are not sufficiently severe in quantity or quality to unreasonably interfere with plaintiffs work performance or create a hostile work environment. Workplace sexual harassment claims based on such minor allegations are dismissed because “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275. See, e.g., Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463-64 (7th Cir.2002) (allegations that supervisor twice rubbed plaintiffs back and shoulders and stared at her inappropriately were insufficient to create hostile work environment); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585 (11th Cir.2000) (claim that coworker momentarily put his hand on plaintiffs knee, touched the hem of her dress, touched her ring and bracelet, and repeatedly asked her to lunch did not establish a hostile environment claim); Valentine-Johnson v. Roche, 238 F.Supp.2d 911, 917 (E.D.Mich.2003) (claim that supervisor put his arm around plaintiff without her consent and stood too close to her did"
},
{
"docid": "23049966",
"title": "",
"text": "Furthermore, Moore’s actions did not undermine Shepherd’s workplace competence. See Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5th Cir.1998) (considering, in addition to the other factors, that “[a] plaintiff ... must show that implicit or explicit in the sexual content is the message that the plaintiff is incompetent because of her sex”). “Title VII was only meant to bar conduct that is so severe and pervasive that it destroys a protected classmember’s opportunity to succeed in the workplace.” Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996), cert. denied, 519 U.S. 1055, 117 S.Ct. 682, 136 L.Ed.2d 607 (1997). Moore’s harassing actions, although offensive, are not the type of extreme conduct that would prevent Shepherd from succeeding in the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2284, 141 L.Ed.2d 662 (1998) (“We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.”). We find, based on a consideration of all of the circumstances, that Moore’s conduct did not render Shepherd’s work environment objectively “hostile” or “abusive.” Shepherd’s claim involves far less objectionable circumstances than those for which courts afford relief. Moore’s comments were not as frequent or as serious as comments that we have found to alter the work environment. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir.1996) (finding that frequent egregious comments about sexual proclivity created hostile environment); cf. Long v. Eastfield College, 88 F.3d 300, 309 (5th Cir.1996) (finding single joke involving condoms insufficient to create hostile environment). The touching of Shepherd’s shoulder is not the type of severe conduct that courts have found to create a hostile environment. See, e.g., Wattman v. International Paper Co., 875 F.2d 468, 478 (5th Cir.1989) (concluding hostile environment existed where female employee sexually groped repeatedly); Hall v. Gus Const. Co., 842 F.2d 1010, 1012 (8th Cir.1988) (finding hostile environment where male coworkers cornered women and rubbed their thighs, grabbed their breasts, and held a woman so that a man could touch her)."
}
]
|
243511 | also be able to assemble information as to the existence of probable cause from the testimony of defendant Childs, the arresting officer, and other defendants involved in plaintiff’s arrest and prosecution. Because plaintiff's Fifth Amendment right against self-incrimination outweighs defendants’ need for admissions of guilt as to the traffic violations involved, dismissal of plaintiffs case is not an appropriate response to his use of the Fifth Amendment at his deposition. As for the substantive elements of plaintiff’s claims for false arrest and malicious prosecution, plaintiff must show that he was arrested without probable cause. The actual existence of probable cause is an absolute bar to a § 1983 action regardless of whether the arresting officer acted maliciously or in bad faith. REDACTED A state court finding of probable cause, either at a preliminary hearing or at trial, collaterally estops plaintiff from relitigat-ing the issue in a civil rights suit. Guenther v. Holmgren, 738 F.2d 879, 884-85 (7th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985); see also Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). If probable cause does not exist, then plaintiff must show that under clearly established legal standards in effect at the time of the arrest, his arrest was unlawful. Moore v. The Marketplace Restaurant, Inc., 754 F.2d 1336, 1344 n. 10 (7th Cir.1985). No evidence as to the existence or non-existence of probable cause has been presented, and therefore | [
{
"docid": "23148461",
"title": "",
"text": "an arrest warrant issued by a judge in Evanston; and (2) whether defendant Harold Lund, one of the Evans-ton police officers, knew the complaining witness, Lucille Buches, and maliciously caused her to sign the disorderly conduct complaint against Terket. Neither contention has any merit. Terket’s allegation that the police officers had no authority to arrest him in Chicago raises an issue of law, not fact. It is not disputed that these defendants were Evanston police officers executing an Evanston arrest warrant in Chicago. The issue before the district court then became whether, on those undisputed facts, the defendants were entitled to judgment as a matter of law that their conduct was legally authorized and therefore not a violation of Terket’s rights. Rule 56(c), Fed.R.Civ.P. The court correctly held that Illinois law authorized the Evanston police to execute an arrest warrant anywhere in the state. Ill.Rev.Stat! ch. 38, § 107-5(c). The case to the contrary relied on by Terket was reversed by the Illinois Supreme Court. People v. Carnivale, 61 Ill.2d 57, 329 N.E.2d 193 (1975), rev’g, 21 Ill.App.3d 780, 315 N.E.2d 609 (1974). Accord People v. Durham, 71 Ill.App.3d 725, 28 Ill.Dec. 350, 390 N.E.2d 517 (5th Dist. 1979); People v. Clark, 46 Ill.App.3d 240, 4 Ill.Dec. 785, 360 N.E.2d 1160 (5th Dist. 1977). Terket also claims there are disputed fact issues relating to whether Lund and Buches were friends prior to the arrests and prosecution and whether Lund improperly induced Buches to sign the disorderly conduct complaints. The existence of disputed facts is not enough, however, to defeat a motion for summary judgment. The disputed facts must also be material to the legal issues in the case. See Rule 56(c), supra. Construed liberally, Terket’s § 1983 complaint alleges a deprivation of liberty without due process through unlawful arrest, false imprisonment, and malicious prosecution. Under Illinois law, an essential element of such a cause of action is that the arrests, imprisonment, or prosecution be undertaken without probable cause. Both lack of probable cause and malice must be shown. Thus proof of the actual existence of probable cause is an absolute"
}
]
| [
{
"docid": "16630888",
"title": "",
"text": "449 U.S. 90, 94, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980). Application of collateral estoppel depends on whether the plaintiff had the opportunity to fully and fairly litigate the issue in state court. Allen, 449 U.S. at 94-95, 101 S.Ct. at 414-15. Accordingly, the Sixth Circuit has held that a guilty plea or conviction will preclude a plaintiff from subsequently bringing a § 1983 claim based upon lack of probable cause or malicious prosecution. Walker v. Schaeffer, 854 F.2d 138, 142-43 (6th Cir.1988); see also, Pete v. Metcalfe, 8 F.3d 214, 218-19 (5th Cir.1993); Guenther v. Holmgreen, 738 F.2d 879, 884-85 (7th Cir.1984), Roundtree v. City of New York, 778 F.Supp. 614, 618-19 (E.D.N.Y. 1991). In another context, the Supreme Court also has stated that where there is a valid conviction, the courts will not look to the motive of the arresting officer. Whren v. United States, 517 U.S. 806,-, 116 S.Ct. 1769, 1773, 135 L.Ed.2d 89 (1996). “The actual existence of probable cause is an absolute bar to a § 1983 action regardless of whether the arresting officer acted maliciously or in bad faith.” Bootz v. Childs, 627 F.Supp. 94, 102 (N.D.Ill.1985)(citing Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980)) (where probable cause exists, “allegedly malicious motives are immaterial”). Ron Kubik alleges he was arrested because he is an atheist and that his arrest and prosecution violated his Fourth and Fourteenth Amendment rights. He also claims malicious prosecution, false arrest and selective prosecution. However, Kubik had the opportunity to litigate those issues in his state court proceeding. Instead, he chose to plead guilty to the assault and battery upon Diann Kubik. Ron Kubik might not necessarily have been estopped from raising these claims had he filed them in state court because Michigan law usually requires mutuality of parties in order for collateral estoppel to apply. See, Lichon v. American Universal Insurance Co., 435 Mich. 408, 459 N.W.2d 288, 298-99 (1990) (despite his arson conviction following a nolo contendré plea, building owner could sustain bad-faith action against insurer for refusal to pay). However, collateral estoppel is a procedural"
},
{
"docid": "1991994",
"title": "",
"text": "Rodriguez, 2 Misc.2d 891, 150 N.Y.S.2d 149, 150 (Sup.Ct.1956); Flex Credit, Inc. v. Winkowitsch, 428 N.W.2d 236, 239 (N.D.1988); Nielsen v. Braland, 264 Minn. 481, 484, 119 N.W.2d 737, 739 (Minn.1963). Nothing that Baldridge did burdened the ability of the plaintiffs to engage in group litigation. The plaintiffs have not pointed to any obstacles that Currier’s arrest placed in the path of their desire to pursue judicial remedies as a means of social change. As an alternative, plaintiffs Braun and Currier might claim that Currier’s arrest “chilled” their desire to support AHF’s litigation efforts, but this theory is better analyzed under the plaintiffs’ fourth amendment claims for wrongful arrest. If the arrests were supported by probable cause, then the plaintiffs have no cause of action, under the first amendment or otherwise. We turn first to Braun’s wrongful arrest claim because it is the least complicated. Braun was arrested for and convicted of disorderly conduct for interfering with the police as they led Currier out of the courtroom. The conviction supports the arrest: a plaintiff’s previous conviction collaterally estops the plaintiff from reasserting a lack of probable cause. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). The existence of probable cause bars the section 1983 action. Kompare v. Stein, 801 F.2d 883, 891 (7th Cir.1986). Currier’s wrongful arrest claim is more problematic. Currier was initially arrested for his attempt to serve legal papers on officer Baldridge, but Currier was only convicted for his disorderly conduct after his arrest and as he was being led from the courtroom. Thus, Currier was charged with two counts of disorderly conduct, but only convicted of one. Contrary to the defendants’ assertion, the conviction does not collaterally estop Currier from asserting the invalidity of his initial arrest. At a preliminary hearing, a Wisconsin state court presumably made a finding that Currier's initial arrest was supported by probable cause. If such a finding was made in the course of Currier’s criminal case, it might work a collateral estoppel against him. See Guenther v. Holmgreen, 738 F.2d 879, 883-89 (7th Cir.1984), cert. denied,"
},
{
"docid": "23616794",
"title": "",
"text": "People v. Johnson, 8 Mich.App. 462, 466, 154 N.W.2d 671 (1967). In this case plaintiff also contested the finding of probable cause in state circuit court after the examining judge bound him over. Under these circumstances we believe he is collaterally estopped from raising the issue of probable cause in his § 1983 claim for malicious prosecution. Where a party has had a “full and fair opportunity” to litigate an issue in earlier state proceedings, he is precluded from relitigating the same issue in a later federal case. Allen v. McCurry, 449 U.S. 90, 94-96, 103-04, 101 S.Ct. 411, 414-15, 419, 66 L.Ed.2d 308 (1980). The Seventh Circuit recently applied collateral estoppel in a § 1983 action based on an alleged false arrest, Guenther v. Holmgreen, 738 F.2d 879 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985), and its reasoning applies to this case where malicious prosecution is the basis of a § 1983 action. We do not hold that every determination in a preliminary hearing should be given preclusive effect in a subsequent § 1983 action. Some preliminary hearings are little more than formalities. Also, even when an opportunity for full adversary proceedings is afforded, strategic concerns may counsel against engaging in such an exercise at the early stages of a criminal proceeding. However, where the state affords an opportunity for an accused to contest probable cause at a preliminary hearing and the accused does so, a finding of probable cause by the examining magistrate or state judge should foreclose relitigation of that finding in a subsequent § 1983 action. B. The district court was correct in directing a verdict on the due process and equal protection claims raised by plaintiff in the § 1983 count of his complaint. Plaintiff did not sue the two city building officers who allegedly harassed him and deprived him of the right to use and enjoy his property and to conduct a lawful business. Instead, he sought to hold the City of Wixom liable for their actions. In overruling Monroe v. Pape, 365 U.S. 167, 81 S.Ct."
},
{
"docid": "23231792",
"title": "",
"text": "at 2694. In this case, unlike Baker, the plaintiff asserts that his arrest was made in bad faith and without probable cause, thereby depriving him of his right to be free from unreasonable seizures as guaranteed by the Fourth Amendment. Accepting these allegations as true, the plaintiff Guenther might have a cognizable § 1983 cause of action for injuries suffered as a result of the illegal, unconstitutional arrest. See Whitley v. Seibel, 613 F.2d 682, 685-86 (7th Cir.1980); Davis v. Murphy, 559 F.2d 1098, 1100, 1102 (7th Cir.1977); Joseph v. Rowlen, 402 F.2d 367, 370 (7th Cir.1968); Landrigan v. City of Warwick, 628 F.2d 736, 743 (1st Cir.1980); Harper v. McDonald, 679 F.2d 955, 959-60 (D.C.Cir.1982). Recognizing this, defendants have argued and the district court concluded that Guenther was collaterally estopped from litigating the issue of probable cause because that issue was decided against him at his preliminary hearing. Under collateral estoppel, “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). However, collateral estoppel applies only when the party against whom the earlier decision is being asserted had a “full and fair opportunity” to litigate the issue in question. Id.; Kremer v. Chemical Construction Corp., 456 U.S. 461, 481 n. 22, 102 S.Ct. 1883,1897 n. 22, 72 L.Ed.2d 262 (1982). In Allen v. McCurry, 449 U.S. 90, 104-05, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) the Supreme Court held that collateral estoppel can be invoked against a § 1983 claimant to bar relitigation of his Fourth Amendment search and seizure claim decided against him in a state criminal suppression hearing. See also Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 2372-73, 76 L.Ed.2d 595 (1983). In Whitley v. Seibel, 676 F.2d 245, 248 (7th Cir.1982), the court, following Allen, recognized that the application of the collateral estoppel doctrine to § 1983 claims turns on whether the"
},
{
"docid": "23616793",
"title": "",
"text": "§ 1983. Cook v. Houston Post, 616 F.2d 791, 794 (5th Cir.1980). Only when “the misuse of a legal proceeding is so egregious as to subject the aggrieved individual to a deprivation of constitutional dimension” does § 1983 provide a remedy for a claim of malicious prosecution. Dunn v. State of Tennessee, 697 F.2d 121, 125 (6th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983). “This [claim under § 1983] involves yet another effort to make a federal question out of litigation where exclusive jurisdiction is in the State courts.” Ohio Inns, Inc. v. Nye, 542 F.2d 673, 676 (6th Cir.1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1583, 51 L.Ed.2d 794 (1977). There is an additional reason for holding that plaintiff had no cause of action under § 1983 for malicious prosecution. Plaintiff contested the issue of probable cause at his preliminary hearing. Since an accused has the right to call witnesses and cross-examine witnesses produced by the State, a preliminary hearing is an adversary proceeding under Michigan law. People v. Johnson, 8 Mich.App. 462, 466, 154 N.W.2d 671 (1967). In this case plaintiff also contested the finding of probable cause in state circuit court after the examining judge bound him over. Under these circumstances we believe he is collaterally estopped from raising the issue of probable cause in his § 1983 claim for malicious prosecution. Where a party has had a “full and fair opportunity” to litigate an issue in earlier state proceedings, he is precluded from relitigating the same issue in a later federal case. Allen v. McCurry, 449 U.S. 90, 94-96, 103-04, 101 S.Ct. 411, 414-15, 419, 66 L.Ed.2d 308 (1980). The Seventh Circuit recently applied collateral estoppel in a § 1983 action based on an alleged false arrest, Guenther v. Holmgreen, 738 F.2d 879 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985), and its reasoning applies to this case where malicious prosecution is the basis of a § 1983 action. We do not hold that every determination in a preliminary hearing should be given"
},
{
"docid": "1991995",
"title": "",
"text": "conviction collaterally estops the plaintiff from reasserting a lack of probable cause. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). The existence of probable cause bars the section 1983 action. Kompare v. Stein, 801 F.2d 883, 891 (7th Cir.1986). Currier’s wrongful arrest claim is more problematic. Currier was initially arrested for his attempt to serve legal papers on officer Baldridge, but Currier was only convicted for his disorderly conduct after his arrest and as he was being led from the courtroom. Thus, Currier was charged with two counts of disorderly conduct, but only convicted of one. Contrary to the defendants’ assertion, the conviction does not collaterally estop Currier from asserting the invalidity of his initial arrest. At a preliminary hearing, a Wisconsin state court presumably made a finding that Currier's initial arrest was supported by probable cause. If such a finding was made in the course of Currier’s criminal case, it might work a collateral estoppel against him. See Guenther v. Holmgreen, 738 F.2d 879, 883-89 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). Nevertheless, the defendants have not chosen this route, instead resting their collateral estoppel argument solely on the effects of Currier’s conviction. Collateral estoppel, like a lot of issues in this court, can be waived. See Blonder-Tongue Laboratories v. University of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 1453, 28 L.Ed.2d 788 (1971); West Virginia N.R.R. v. United States, 183 Ct.Cl. 232, 391 F.2d 627, 636 (1968). The defendants did not raise the collateral estoppel effects of preliminary proceedings in Currier’s criminal case, and neither will we. However, the mere fact that Currier was acquitted of the crime for which he was initially arrested does not lead to section 1983 liability for the arresting officer. See Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979); Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). As we noted above, if the arrest was supported by probable cause, then no cause of action will"
},
{
"docid": "23197998",
"title": "",
"text": "hearing to determine whether the Department should continue to hold Dana was held on January 17, as Wisconsin law mandates. Id. § 48.21(1) (hearing must be held within twenty-four hours, excluding Saturdays and Sundays, of the time the decision to hold the child was made). If Dana was seized, it was not an illegal act. The defendants acted according to the statutory requirements of Wisconsin law. Defendant Stewart made a finding of probable cause that Dana was at risk of immediate injury if not taken into custody, just as a police officer in the field can make an arrest based on her own determination of probable cause. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). As the fourth amendment requires, this initial finding of probable cause was promptly followed by a judicial determination of probable cause. Baker, 443 U.S. at 142-43, 99 S.Ct. at 2693-94. Further, to succeed in a section 1983 action based upon a violation of the fourth amendment, a plaintiff must show not only that the seizure was illegal, i.e. without probable cause, but also that the defendant had no reasonable good faith belief in the legality of the seizure. Guenther v. Holmgreen, 738 F.2d 879, 888 (7th Cir.1984); Whitley v. Seibel, 676 F.2d 245, 248 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982). The Supreme Court in Allen v. McCurry noted that a state court’s finding that an arrest was supported by probable cause would foreclose a section 1983 claim that the arresting officers acted in bad faith. 449 U.S. at 102 n. 18, 101 S.Ct. at 419 n. 18. Applying these principles, collateral es-toppel bars the Donalds’ claims based on the fourth amendment. On January 17, the state court found probable cause to continue to hold Dana in custody. Because Dana was in custody from the time of the initial probable cause determination by the Department workers until the hearing on January 17, the state court could only have based its finding of probable cause on events that occurred prior to taking Dana"
},
{
"docid": "23197999",
"title": "",
"text": "seizure was illegal, i.e. without probable cause, but also that the defendant had no reasonable good faith belief in the legality of the seizure. Guenther v. Holmgreen, 738 F.2d 879, 888 (7th Cir.1984); Whitley v. Seibel, 676 F.2d 245, 248 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982). The Supreme Court in Allen v. McCurry noted that a state court’s finding that an arrest was supported by probable cause would foreclose a section 1983 claim that the arresting officers acted in bad faith. 449 U.S. at 102 n. 18, 101 S.Ct. at 419 n. 18. Applying these principles, collateral es-toppel bars the Donalds’ claims based on the fourth amendment. On January 17, the state court found probable cause to continue to hold Dana in custody. Because Dana was in custody from the time of the initial probable cause determination by the Department workers until the hearing on January 17, the state court could only have based its finding of probable cause on events that occurred prior to taking Dana into custody. Therefore, the state court’s determination that probable cause to hold Dana existed on January 17 necessarily implied that probable cause must also have existed on January 14. The Donalds cannot relitigate the issue of probable cause in federal court after it has been conclusively determined in state court. See Lossman, 707 F.2d at 291. Likewise, the state court determination of probable cause precludes the Donalds from showing that Stewart or any of the other defendants acted in bad faith in taking Dana into custody. Allen, 449 U.S. at 102 n. 18, 101 S.Ct. at 419 n. 18. E. Equal Protection Finally, the Donalds complain that the defendants violated their fourteenth amendment right to equal protection under the laws of Wisconsin. The gist of this claim is that the defendants conducted their investigation because of the Donalds’ poverty and relative lack of education. The Donalds claim that, because defendants were aware of the Donalds’ economic and educational background, “[a] jury could easily find at trial that defendants were motivated by plaintiffs’ poverty, source of"
},
{
"docid": "23231810",
"title": "",
"text": "v. McCurry, 449 U.S. at 102 n. 18, 101 S.Ct. at 419 n. 18, that a state court’s finding that the police acted legally—i.e., with, probable cause—would foreclose a § 1983 claim that they had acted in bad faith. See also Whitley v. Seibel II, 676 F.2d at 248. We conclude by noting that since Guenther invited a state criminal proceeding which permitted him to fully and fairly litigate both the sufficiency and the integrity of the evidence supporting probable cause, the policies underlying the collateral estoppel doctrine — judicial economy and consistency of judgments — would be frustrated if we were to permit him to relitigate those claims in federal court. In passing § 1983, “[Congress did not intend] to allow relitigation after a full and fair hearing simply because the state court’s decision-may have been erroneous.” Allen v. McCurry, 449 U.S. at 101, 101 S.Ct. at 418. We should add that the state court’s determination of probable cause es-tops Guenther from raising any Fourteenth Amendment due process claim based upon general tort theories of false arrest, false imprisonment, and malicious prosecution. It is undisputed that, under Wisconsin law, an essential element of claims for false arrest, false imprisonment, and malicious prosecution is that arrest, imprisonment, or prosecution be undertaken without probable cause. Thus, to the extent that Guenther’s § 1983 general due process -claim is predicated on allegations of false arrest, false imprisonment, or malicious prosecution, it would be precluded by the state court’s determination of probable cause. See Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980). Judgment affirmed. . In the district court, Guenther also claimed his Fifth and Sixth Amendment rights were violated because he was denied the right to contact an attorney by phone after his arrest. The district court rejected this claim, holding that Guenther's right to counsel did not attach until the initiation of adversarial proceedings. Guenther v. Holmgreen, 573 F.Supp. at 599, 600 citing Bank of St. Charles v. Camic, 712 F.2d 1140, 1144 (7th Cir.1983). Guenther apparently does not challenge this manifestly correct holding. Nor does Guenther challenge the district"
},
{
"docid": "2848774",
"title": "",
"text": "petitioners.” Carey, 435 U.S. at 266-67, 98 S.Ct. at 1054 (citations and footnotes omitted). In order to recover more than nominal damages, Smith must demonstrate that the fabricated evidence resulted in an absence of probable cause for his arrest, meaning that he would not have been lawfully arrested in the absence of the fabricated evidence. Indeed, we have gone so. far as to hold that there is not even a constitutional violation when there is a basis for a conclusion that probable cause supports a person’s arrest: “Sehertz’s claim — that the investigating officers harbored malicious motives toward him — does not address an issue material to the disposition of this case. Regardless of the defendant’s motives toward the plaintiff, the existence of probable cause for arrest is an absolute bar to a Section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution. If, however, the finding of probable cause is based on the defendant’s intentional misrepresentation or concealment of material facts, the plaintiff may be able to proceed on a Fourth Amendment claim challenging the reasonableness of an arrest. In this case Schertz does not claim that the defendants concealed or misrepresented facts actually known to them; therefore the existence of probable cause bars plaintiff’s Section 1983 claim.” Schertz v. Waupaca County, 875 F.2d 578, 582 (7th Cir.1989) (citations omitted). See also Olson v. Tyler, 825 F.2d 1116, 1117 (7th Cir.1987) (“In general, if probable cause supports an arrest warrant, an arrest pursuant to that warrant is valid even if events later prove the charges inaccu-rate_”); Mark v. Furay, 769 F.2d 1266, 1268-69 (7th Cir.1985) (“This court has consistently held that the existence of probable cause for an arrest totally precludes any section 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution, regardless of whether the defendant had malicious motives for arresting the plaintiff.”). Several factors in this case clearly establish probable cause. Initially the rape victim identified Smith from an array of photographs as the man who sexually assaulted her. The victim signed a sworn complaint alleging that Smith had raped her. Further, the victim also"
},
{
"docid": "23231811",
"title": "",
"text": "of false arrest, false imprisonment, and malicious prosecution. It is undisputed that, under Wisconsin law, an essential element of claims for false arrest, false imprisonment, and malicious prosecution is that arrest, imprisonment, or prosecution be undertaken without probable cause. Thus, to the extent that Guenther’s § 1983 general due process -claim is predicated on allegations of false arrest, false imprisonment, or malicious prosecution, it would be precluded by the state court’s determination of probable cause. See Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980). Judgment affirmed. . In the district court, Guenther also claimed his Fifth and Sixth Amendment rights were violated because he was denied the right to contact an attorney by phone after his arrest. The district court rejected this claim, holding that Guenther's right to counsel did not attach until the initiation of adversarial proceedings. Guenther v. Holmgreen, 573 F.Supp. at 599, 600 citing Bank of St. Charles v. Camic, 712 F.2d 1140, 1144 (7th Cir.1983). Guenther apparently does not challenge this manifestly correct holding. Nor does Guenther challenge the district court’s rejection of his damage claim based upon the alleged failure to advise him of his Miranda warnings. Id. . In Haring v. Prosise, the Court, applying Virginia’s collateral estoppel law, held that a. § 1983 plaintiff’s prior guilty plea in a state criminal proceeding did not estop him from bringing an action based upon a warrantless search, since the legality of the search was not actually litigated and necessarily determined in the state proceeding. . In Wisconsin, a preliminary probable cause hearing is statutorily required, when requested, for felony charges. Wis.Stat. § 970.02(1)(c); State v. Hooper, 101 Wis.2d 517, 305 N.W.2d 110, 118 (1981). Guenther received a probable cause hearing after his attorney moved to dismiss the misdemeanor charges for a lack of probable cause. . In Whitley v. Seibel, 676 F.2d at 248, the court interpreted Allen to mean that: “if a Section 1983 plaintiff must show both that an arrest was illegal and that the arresting officer had no reasonable, good faith belief in its legality, the determination that an arrest is"
},
{
"docid": "8575266",
"title": "",
"text": "a warrantless arrest that a finding of no probable cause at the preliminary hearing does not resolve the issue of whether or not probable cause existed for the arrest in the view of the fact that that issue is not properly before the court in the absence of a specific motion challenging probable cause for arrest. In the instant case, it is evident from the record that the defendant officers did not receive their full panoply of rights in that they were given no opportunity to challenge the testimony and/or Williams’ statements much less given the opportunity to present any evidence on their own behalf as to the issue of whether they had probable cause to arrest Williams. 2. Probable Cause to Arrest We turn now to the question of whether the federal district court judge in the Section 1983 action correctly determined that the officers had probable cause to arrest Williams for arson. “[P]roof of the actual existence of probable cause is an absolute bar to the 1983 action [regardless] of the lack of good faith of the arresting police officer.” Moore v. Marketplace Rest. Inc., 754 F.2d 1336, 1344 n. 10 (7th Cir.1985). “Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that ‘an offense has been or is being committed.’ ” Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949) (brackets in original). “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” Id. at 175, 69 S.Ct. at 1310. Probable cause “is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training.” United"
},
{
"docid": "16784108",
"title": "",
"text": "Bailey v. Sharp, 782 F.2d 1366 (7th Cir.1986) (per curiam). On February 14, 1986, the district court, in compliance with the writ, entered judgment in favor of Bailey for $80,000. The judgment was entered for purposes of appeal only; this case is that appeal. II. LIABILITY A. Collateral Estoppel Andrews raises several arguments attacking the jury’s verdict for Bailey. First, Andrews argues that Bailey was collaterally estopped from disputing that Andrews had probable cause to arrest Bailey. In a preliminary probable cause hearing in Benton County Circuit Court on May 2, 1984, eleven days after Bailey’s arrest, Judge Shipman found probable cause to proceed on a disorderly conduct charge. Andrews argues that this finding collaterally estops Bailey from claiming that his arrest was unlawful. As we recognized in Guenther v. Holmgreen, 738 F.2d 879, 884 (7th Cir. 1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985), four requirements must be met before we will apply the collateral estoppel doctrine to a § 1983 claim. The issue must be the same as that involved in the prior judicial proceeding; the issue must actually have been litigated; the issue must have been resolved; and the issue’s determination must have been necessary to the judgment in the prior proceeding. Parklane Hosiery v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979); Ray v. Indiana & Michigan Electric Co., 758 F.2d 1148, 1150 (7th Cir.1985). As the Supreme Court noted in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), a federal court must “give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.” Id. at 96, 101 S.Ct. at 415. The Court has also indicated that federal courts should apply state collateral estoppel law in determining whether a § 1983 claim is precluded by a prior state proceeding. Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983); Kremer v. Chemical Construction Corp., 456 U.S. 461, 482, 102 S.Ct. 1883, 1898, 72"
},
{
"docid": "1802536",
"title": "",
"text": "On appeal, Schertz presents only his Section 1983 claim that the state and Waupaca defendants arrested and detained him without probable cause, in violation of the Fourth Amendment. He does not contest the sufficiency of the evidence to establish probable cause; rather, his theory is that the flaws in the murder investigation demonstrate the defendants’ bad faith and thereby negate the existence of probable cause. The defendants initially contend that the state court findings of probable cause collaterally estop Schertz from relitigating the issue in a Section 1983 action. A federal court applies state collateral estoppel law in determining whether a state court judicial determination precludes relit igation in a Section 1983 claim. Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Guenther v. Holmgreen, 738 F.2d 879, 883-84 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). Under Wisconsin law, the collateral estoppel doctrine applies when an issue was actually litigated and decided and its resolution was necessary to the prior disposition. Reckner v. Reckner, 105 Wis.2d 425, 314 N.W.2d 159, 165 (App.1981). Even when a prior determination is entitled to preclusive effect under state law, relitigation is permitted if the earlier proceeding did not fairly or thoroughly address the matter. Guenther, 738 F.2d at 883. We agree with the district court that the preliminary hearing determination does not preclude relitigation of the probable cause issue. The preliminary hearing concerned the sufficiency of the evidence to establish probable cause. Since the instant claim is more accurately characterized as a challenge to the integrity of the evidence than to its sufficiency, identity of the issues is lacking. See Bailey v. Andrews, 811 F.2d 366, 370 (7th Cir.1987). Accordingly, we turn to analysis of the merits of Schertz’s claim. The elements of a Section 1983 claim are 1) the plaintiff held a constitutionally protected right; 2) he was deprived of that right in violation of the Constitution; 3) the defendants intentionally caused the deprivation; and 4) the defendants acted under color of state law. Donald v. Polk County, 836 F.2d 376, 379"
},
{
"docid": "22239581",
"title": "",
"text": "under Kentucky law. Stemler is precluded from relitigating in this case the issue of whether there was probable cause to arrest her to the same extent that Kentucky would accord preclusive effect to the judgment against her in her state court civil suit. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82, 104 S.Ct. 892, 896-97, 79 L.Ed.2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 97, 101 S.Ct. 411, 416, 66 L.Ed.2d 308 (1980). Under Kentucky law, “[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” Revenue Cabinet v. Samani, 757 S.W.2d 199, 202 (Ky.Ct.App.1988) (quoting Restatement (Second) of Judgments § 27 (1980)). The issue of probable cause for Stemler’s arrest was actually litigated and decided in the state court suit, and was necessary to the disposition of the case. Although Stemler’s appeal is pending in that case, the pendency of an appeal does not destroy the finality of the judgment for the purposes of issue preclusion under Kentucky law. See Roberts v. Wilcox, 805 S.W.2d 152, 153 (Ky.Ct.App.1991). Thus, this court is bound by the state court’s determination that there was probable cause for Stemler’s arrest. The existence of probable cause for Stemler’s arrest forecloses her false arrest claim. A plaintiff bringing a constitutional claim of false arrest under the Fourth Amendment must show that there was not probable cause for the arrest. See Donovan v. Thames, 105 F.3d 291, 298 (6th Cir.1997) (applying Kentucky doctrine of collateral estoppel). Likewise, the existence of probable cause would negate the possibility of liability under a state-law malicious prosecution theory, and therefore under a federal constitutional theory as well, at least to the extent that Stemler alleges that the defendants sought to prosecute her despite knowing that there was not probable cause to do so. See Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433"
},
{
"docid": "16630887",
"title": "",
"text": "judgment. 3. Collateral Estoppel The plaintiffs contend that Brown sought Kubik’s arrest because Brown did not agree with Kubik’s atheism and because Kubik had removed his children from the parochial school run by Trinity Lutheran Church, where Brown is an elder. The misdemeanor complaint filed against Kubik in the state court case, People of the State of Michigan v. Ronald James Kubik, No. 944300 SM, charged Kubik with spousal assault and battery on Diann Lynn Kubik pursuant to M.C.L. 750.81(2); M.S.A. 28.6.276 [750.812], On November 30, 1994, Kubik pled guilty to assault and battery. Kubik was represented by counsel at the time he pled guilty and at his sentencing. He was sentenced on January 24,1995 to 730 days probation. The “no contact order” was lifted, but one condition of Kubik’s probation was that he continue in counseling with his wife. The Supreme Court has held that principles of collateral estoppel prevent the litigation of issues in a § 1983 case that could have been raised in the plaintiffs underlying state court conviction. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414-15, 66 L.Ed.2d 308 (1980). Application of collateral estoppel depends on whether the plaintiff had the opportunity to fully and fairly litigate the issue in state court. Allen, 449 U.S. at 94-95, 101 S.Ct. at 414-15. Accordingly, the Sixth Circuit has held that a guilty plea or conviction will preclude a plaintiff from subsequently bringing a § 1983 claim based upon lack of probable cause or malicious prosecution. Walker v. Schaeffer, 854 F.2d 138, 142-43 (6th Cir.1988); see also, Pete v. Metcalfe, 8 F.3d 214, 218-19 (5th Cir.1993); Guenther v. Holmgreen, 738 F.2d 879, 884-85 (7th Cir.1984), Roundtree v. City of New York, 778 F.Supp. 614, 618-19 (E.D.N.Y. 1991). In another context, the Supreme Court also has stated that where there is a valid conviction, the courts will not look to the motive of the arresting officer. Whren v. United States, 517 U.S. 806,-, 116 S.Ct. 1769, 1773, 135 L.Ed.2d 89 (1996). “The actual existence of probable cause is an absolute bar to a § 1983 action regardless"
},
{
"docid": "13623831",
"title": "",
"text": "Bank v. Ellis, 810 F.2d 700, 705-06 (7th Cir.1987); cf. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). She declined to consider other grounds for dismissal because she thought the suit barred in any event by the common law rule. Cameron v. Fogarty, 806 F.2d 380, 386-89 (2d Cir.1986), applied the common law rule to a suit under section 1983, noting that the rule had existed back in 1871, when the original version of the statute was passed, and that the courts frequently have recognized, as defenses to suits under this and other Reconstruction civil rights statutes, the recognized tort defenses of the nineteenth century. Although Cameron was questioned in Rose v. Bartle, 871 F.2d 331, 351 (3d Cir.1989), we may assume for purposes of this appeal, without having to decide, that Cameron was decided correctly. Even so, all it holds is that conviction bars a suit for false arrest or malicious prosecution based on a claim that there was no probable cause to arrest the plaintiff. This is a narrow holding, serving the limited function of preventing an end run around the principle that an unlawful arrest does not bar prosecution of the arrested person. Rose v. Mitchell, 443 U.S. 545, 577, 99 S.Ct. 2993, 3010-11, 61 L.Ed.2d 739 (1979). In formalistic terms, we might put it that if the plaintiff was imprisoned pursuant to a conviction that became final after the exhaustion of his appellate remedies (as it did in this case, King v. State, 469 N.E.2d 1201 (Ind.App.1984)), it was not a false imprisonment. Nor could the prosecution have lacked probable cause, a lack that is a prerequisite to a suit for malicious prosecution. Holiday Magic, Inc. v. Scott, 4 Ill.App.3d 962, 966, 282 N.E.2d 452, 455 (1972); Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 470 (7th Cir.1982). Probable cause requires much less proof than a conviction does. Nothing in the formulation or rationale of the common law rule bars relitigation of the issue of the plaintiffs criminal guilt if the prosecution in the criminal proceeding had procured the"
},
{
"docid": "16630889",
"title": "",
"text": "of whether the arresting officer acted maliciously or in bad faith.” Bootz v. Childs, 627 F.Supp. 94, 102 (N.D.Ill.1985)(citing Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980)) (where probable cause exists, “allegedly malicious motives are immaterial”). Ron Kubik alleges he was arrested because he is an atheist and that his arrest and prosecution violated his Fourth and Fourteenth Amendment rights. He also claims malicious prosecution, false arrest and selective prosecution. However, Kubik had the opportunity to litigate those issues in his state court proceeding. Instead, he chose to plead guilty to the assault and battery upon Diann Kubik. Ron Kubik might not necessarily have been estopped from raising these claims had he filed them in state court because Michigan law usually requires mutuality of parties in order for collateral estoppel to apply. See, Lichon v. American Universal Insurance Co., 435 Mich. 408, 459 N.W.2d 288, 298-99 (1990) (despite his arson conviction following a nolo contendré plea, building owner could sustain bad-faith action against insurer for refusal to pay). However, collateral estoppel is a procedural bar, and federal authority does not require mutuality where it is raised as a defense. Allen, 449 U.S. at 94, 101 S.Ct. at 414-15. Therefore, Ron Kubik is barred by principles of collateral estoppel from litigating the issue of whether Brown’s motivation violated his constitutional rights and/or claims for malicious and selective prosecution, false imprisonment and false arrest. 4. Fourteenth Amendment a. Equal Protection Diann and Ron Kubik claim that the defendants’ actions denied them of equal protection of the law in violation of the Fourteenth Amendment. .The purpose of the Equal Protection Clause is to assure that similarly situated individuals will be treated alike. Gwinn Area Comm. Sch. v. Michigan, 574 F.Supp. 736, 749 (W.D.Mich.1983), aff'd in part, rev’d in part, 741 F.2d 840 (6th Cir.1984). In order to establish an equal protection violation, Plaintiffs must allege or prove discriminatory intent or purpose. Washington v. Davis, 426 U.S. 229, 239-2, 96 S.Ct. 2040, 2047-49, 48 L.Ed.2d 597 (1976). A civil rights plaintiff must make specific allegations of facts which indicate a deprivation of rights."
},
{
"docid": "22162524",
"title": "",
"text": "Adult Theatre I v. Slaton, 413 U.S. 49, 66, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446 (1973). Thus, the United States Supreme Court has continued to recognize in decisions as recent as Payton and Welsh v. Wisconsin, — U.S.—, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), the importance of the home as a sanctuary. The legitimate objectives of law enforcement can also co-exist with these special protections as long as the police take the proper legal precautions in gaining entry. But, it is the court’s role to guard this protected interest from abusive intrusions. . It has been held in this circuit that proof of the actual existence of probable cause is an absolute bar to the 1983 action irregardless of the lack of good faith of the arresting police officer. See Terket v. Lund, 623 F.2d 29 (7th Cir.1980). See also Guenther v. Holmgreen, 738 F.2d 879 (7th Cir.1984) where this court reiterated the rule from Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) that collateral estoppel may bar a 1983 action when a magistrate, in an earlier criminal proceeding, made an independent determination that probable cause existed to make the arrest. In this case a trial was commenced, but the charges were dismissed; the parties failed to show, and the record does not indicate, that any independent determination of probable cause was ever made. . In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court developed a test to determine whether probable cause exists when information relating to an alleged crime is supplied by an informant to a police officer. Under this test probable cause may exist based upon a tip by an informant where there is an adequate indication that the informant is reliable and the basis for the informant’s conclusion is known. Id. at 114-15, 84 S.Ct. at 1514. If a citizen, rather than a police informant, supplies information to an officer, it is assumed that his reliability is established under Aguilar’s first-prong. The second prong — the basis for the conclusion"
},
{
"docid": "1802535",
"title": "",
"text": "of his activities as police chief was seized and not returned to him until after the murder trial, while he was preparing his defense to the theft and misconduct charges. Schertz ultimately was acquitted of all the charges against him. He brought suit against Sheriff Mork, Deputy Andraschko, and Officers Kussmann, Jensen, and Berg-lund of the sheriff’s department (collectively, the “Waupaca defendants”), agents To-maselli and Paetzke (the “state defendants”), and Waupaca County. He pressed several claims in the district court. The court first granted summary judgment to the Waupaca defendants on the claim that they had conducted a constitutionally infirm investigation. In order to allow the plaintiff further discovery, it delayed ruling on the Section 1983 claims based on the arrest. Schertz, however, presented no new facts, instead relying on the argument that the omissions in the investigation invalidated the evidence establishing probable cause. The district court entered summary judgment in favor of the Waupaca defendants on the basis that Schertz had not undermined the determinations that probable cause existed. 683 F.Supp. 1551 (1988). II. On appeal, Schertz presents only his Section 1983 claim that the state and Waupaca defendants arrested and detained him without probable cause, in violation of the Fourth Amendment. He does not contest the sufficiency of the evidence to establish probable cause; rather, his theory is that the flaws in the murder investigation demonstrate the defendants’ bad faith and thereby negate the existence of probable cause. The defendants initially contend that the state court findings of probable cause collaterally estop Schertz from relitigating the issue in a Section 1983 action. A federal court applies state collateral estoppel law in determining whether a state court judicial determination precludes relit igation in a Section 1983 claim. Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Guenther v. Holmgreen, 738 F.2d 879, 883-84 (7th Cir.1984), cert. denied, 469 U.S. 1212, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985). Under Wisconsin law, the collateral estoppel doctrine applies when an issue was actually litigated and decided and its resolution was necessary to the prior disposition. Reckner v. Reckner,"
}
]
|
837849 | occupants patents for said lands. If these lands form part of the public doman, and are therefore open to entry, then the individuals named in the bill have the right to perfect their proofs of title, and procure the proper evidences thereof. The determination of this question calls for the exercise of judicial judgment and discretion on part of the officers of the land department. It is a well and long settled principle that the courts cannot control the officers of the department in the exercise of duties which are judicial or discretionary in their nature. Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330; REDACTED Craig v. Leitensdorfer, 123 U. S. 189, 8 Sup. Ct. Rep. 85. In Litchfield v. Register, 9 Wall. 575, it was sought to restrain the officers of the land-office at Fort Dodge, Iowa, from acting upon applications made to prove up pre-emption on certain iands which it was averred had become the property of complainant through certain acts of congress and of the legislature of Iowa. The supreme court held “that the judiciary cannot interfere, either by mandamus or injunction, with executive officers, such as respondents here, in the discharge of their official duties unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion.” The decision is placed upon the ground that the duty of | [
{
"docid": "22794633",
"title": "",
"text": "patent has been issued., that decision remains, the authoritative judgment of the department a« to who has the equitable right to the land. The Supreme Court .of Illinois, in their opinion in this case, come to the conclusion that this final- decision of the secretary is not only conclusive on the. department, but that it also excludes all inquiry by courts of justice into the right of the matter between the parties. , • The whole question, however, has been since that time very fully reviewed arid considered by this court in Johnson v. Towsley, 13 Wall. 72. The doctrine announced in that case, and repeated in. several cases since, ,is this: — That trie decision of the officers' of the Land Department, made within the sqrope of their authority on' questions of this kind, is in general -conclusive everywhere, except- when 'reconsidered By way of appeal within tliat department; and that as to the facts on which their decision is based, in the absence of ' fraud or mistake, that decision is' conclusive. even in courts of-justice, when the title-afterwards-comes in question. -But that ' in this class of cases, as in all others, there -exists in the courts of equity the' jurisdiction to correct mistakes, to relieve against frauds and impositions,-and in cases where it is clear that, those officers have, by a mistake, of the law, given to one man The' . .land which on the undisputed facts' belonged to another, to give appropriate relief. . In the recent case'of Shepley et al. v. Cowan et al. (91 U. S. 340), the doctrine is thus aptly staled by Mr. Justice Field-: “ The officer's of the Land Department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the. public lands, with a view to secure rights of pre-emption. If they err in the construction of the law applicable to any. case, or if fraud is practised upon them, dr they themselves, are chargeable with fraudulent practices, .their rulings may be reviewed and annulled by the courts when a"
}
]
| [
{
"docid": "22226550",
"title": "",
"text": "Congress or resolution, are not mere ministerial duties; and, as was said by this court in the recent case of Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324: “Whether he decided right or wrong is hot the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty-to decide as he thought the law was, and the courts have no power whatever under those circumstances to review his determina^tion by mandamus or' injunction.” In Marquez v. Frisbie, 101 U. S. 473, which was a bill in equity to review the decision of the Land Department in a preemption ease, Mr. Justice Miller remarked (p. 476): “This means, and it is a sound principle, that where there is a mixed question ©f law and fact, and the court cannot so separate it. as to show clearly where the mistake of law is, the decision of the tribunal to which the law had confided the matter is conclusive.” In Gaines v. Thompson, 7 Wall. 347, it*was held that the court would no more interfere by injunction than by mandamus to control the action of the head of a department; and in United States ex rel. Dunlap v. Black, 128 U. S. 40, it was said that the courts will not interfere by mandamus with the executive officers of the Government in the exercise of their ordinary official duties-, even where those duties require an interpretation of the law, no appellate power being given them for that purpose. See also Redfield v. Windom, 137 U. S. 636. The rule upon this subject may be summarized as follows: That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head of a department, his decision thereon is conclusive;-and that even upon mixed questions of lav. and fact, or of law alone, his action will carry with it a strong presumption of its correctness,.and the courts jwill not ordinarily review it, although, they máy have the’ power, and will occasionally exercise the right of so doing. Upon this principle, and"
},
{
"docid": "22765172",
"title": "",
"text": "■ Mb. Justice. Brown,- after stating the case, delivered the opinion of the court. Tips case involves not only the power qf this court to enjoin the Bfead of a Department, but the power of a Secretary of the Interior to annul the action of his predecessor, when such action operates to give effect to a grant of public lands to a railroad corporation. 1. With regard to the judicial power in cases of this kind, it was held by this court as early as 1803, in the great case of Marbury v. Madison, 1 Cranch, 137, that there was a distinction between acts involving the exercise of judgment or discretion and those which are pui’ely ministerial; that, with respect to the former, there exists, and can exist, no power to control the executive discretion, however erroneous its exercise may seem to have been, but with respect to ministerial duties, an act or refusal to act is, or may become, the subject of review by the courts. The principle of this case was applied in Kendall v. Stokes, 12 Pet. 524, and the action of the Circuit Court sustained in a proceeding where it had commanded the Postmaster General to credit the relator with a certain sum awarded to him by the Solicitor of the Treasury under an act of Congress authorizing the latter to adjust the claim, this being regarded as purely a ministerial duty. In Decatur v. Paulding, 14 Pet. 497, a mandamus was refused upon the same principle, to compel the Secretary of the Navy to allow to the widow of Commodore Decatur a certain pension and arrearages. Indeed, the reports of this court abound with authorities to the same effect. Kendall v. Stokes, 3 How. 87; Brashear v. Mason, 6 How. 92; Reeside v. Walker, 11 How. 272; Commissioner of Patents v. Whiteley, 4 Wall. 522; United States v. Seaman, 17 How. 224, 231; United States v. Guthrie, 17 How. 284; United States v. The Commissioner, 5 Wall. 563; Gaines v. Thompson, 7 Wall. 347; The Secretary v. McGarrahan, 9 Wall. 298; United States v. Schurz,"
},
{
"docid": "16445007",
"title": "",
"text": "the land district for -which they were respectively register and receiver. The hill averred that, complainant was the legal owner of the lands; that they, were not public lands, and were in no manner subject to sale or preemption by the government or its-officers. The bill was dismissed for want of jurisdiction in equity, and this court affirmed the decree. Mr. Justice Miller said: “The principle has been so repeatedly decided in this court, that the judiciary cannot interfere either by mandamus or injunction with executive officers such as the respondents here, in the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion, that it would seem to be useless to repeat it here.” Gaines v. Thompson, 7 Wall. 347; The Secretary v. McGarrahan, 9 Wall. 298. It was held that the fact that complainant asserted himself, to be the owner óf the . tract of land, which the officers were treating as public lands, did not take the case out of that rule, where it was the duty of these officers to determine, upon all the facts before them, whether the land was open to. preemption or sale; and further, that if the court could entertain jurisdiction, the persons asserting the right of preemption would be necessary parties to the suit. Mr. Justice Miller further said: “ After the .land officers shall have disposed of the question, if any legal right of plaintiff has been invaded, he may seek redress in the courts. He insists that he now has the legal title. If the Land Départment finally decides in his favor, he is not injured. If they give patents to the applicants for preemption, the courts can then in the appropriate proceeding determine who has the better title or right.” And: “ It appears on its face, that the register and receiver have no real interest in the matter, but that persons not named are asserting before them the legal right to preempt these lands. These persons are the real parries whose interests are to be"
},
{
"docid": "16445006",
"title": "",
"text": "regard cannot be divested by the. fraudulent action of a subordinate officer, outside of his authority, and in violation of the statute. Whiteside v. United States, 93 U. S. 247; Moffat v. United States, 112 U. S. 24; Hume v. United States, 132 U. S. 406, 414. The courts can neither correct nor make surveys'. The power to-do so is reposed in the political department of the government, and the Land Department, charged with the duty of surveying the public domain, must primarily determine what are public lands' subject tp survey and disposal under the. public land. laws. Possessed of the power, in general, its exercise of jurisdiction cannot be questioned by the courts before it has taken final action. Brown v. Hitchcock, 173 U. S. 473. In Litchfield v. The Register and Receiver, 9 Wall. 575, Litchfield sought an injunction to restrain the register and receiver of the Hnited States land office at Port Dodge, Iowa, from entertaining and acting upon applications made to them to prove preemptions to certain lands which lay within the land district for -which they were respectively register and receiver. The hill averred that, complainant was the legal owner of the lands; that they, were not public lands, and were in no manner subject to sale or preemption by the government or its-officers. The bill was dismissed for want of jurisdiction in equity, and this court affirmed the decree. Mr. Justice Miller said: “The principle has been so repeatedly decided in this court, that the judiciary cannot interfere either by mandamus or injunction with executive officers such as the respondents here, in the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion, that it would seem to be useless to repeat it here.” Gaines v. Thompson, 7 Wall. 347; The Secretary v. McGarrahan, 9 Wall. 298. It was held that the fact that complainant asserted himself, to be the owner óf the . tract of land, which the officers were treating as public lands, did not take the case out of"
},
{
"docid": "19197868",
"title": "",
"text": "a particular piece of land was swamp and overflowed land within the meaning of the act of Congress. Upon this point the court, in French v. Fyan, said: “ But a careful examination, will show that it was done with hesitation, and with some dissent in the court. The admission was placed expressly on the ground that the Secretary of the Interior had neglected or refused to do his duty; that he had made no selection or lists whatever, and woicld issue no patents, although many years had elapsed since the passage of the act. The court said : The matter to be shown is one of observation and examination; whether arising before the Secretary, whose duty it was primarily to decide it, or before the court whose duty it became, because the Secretary had failed to do it, this was clearly the best evidence' to be had, and was sufficient for the purpose.’ There was no means, as this court has decided, to compel him to act; and if the party claiming. under the State in that case could not be1 permitted to' prove that thé land which the State had conveyed to him as swamp land was in fact such, a total failure of justice would occur, and the entire grant to the State might be defeated by this neglect or refusal of the Secretary to perform his duty. Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Litchfield v. Register and Receiver, 9 Wall. 575. There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest implication, that if, in that case, the Secretary had made any decision, the evidence would have been excluded.” The same general question arose, under somewhat different circumstances, in Ehrhardt v. Hogaboom, 115 U. S. 67, 69, which was an action to recover possession of a tract of land in California; the plaintiff deraigning title through a conveyance by one to whom the United States had issued a patent in 1875; the defendant contending that the lands in controversy, although"
},
{
"docid": "13786132",
"title": "",
"text": "a judicial cause. That alternative is the supposition, contrary to that on which the complainant rests his case, that the decision of the register and receiver, the issue of the approved survey and plat, and of the patent based thereon, are final and conclusive upon the Department of the Interior, and not subject to the appeal taken to the Commissioner of the General Land Office. It may be asked whether such a determination of inferior officers of the Land Department, involving private rights and interests of great magnitude and value, infected with fraud, is to be protected from attack by judicial process. We are told that “ equity has always had jurisdiction of fraud, misrepresentation, and concealment, and it does not depend upon discovery.” Jones v. Bolles, 9 Wall. 364, 369. That equity will interfere by a proper proceeding where the executive power has exhausted itself. Comrrdssioner v. Whiteley, 4 Wall. 522; Oa/mes v. Thompson, 7 Wall. 347; Litchfield v. Register and Recei/ver, 9 Wall. 575 ; Samson v. Smiley, 13 Wall. 91; Johnson v. Towsley, 13 Wall. 72; Warren v. Van Brunt, 19 Wall. 646. That “the officers of the Land Department are specially designated by law to receive, consider, and pass upon proofs presented with respect to settlements upon the public lands with a view-to secure rights of preemption. If they err in the construction of the law applicable to any case, or if fraud is practised Upon them, or they themselves are chargeable with fraudulent practices, their rulings may be reviewed and annulled by the courts when a controversy arises between private parties founded upon their decisions.” Shelley v. Cowan, 91 U. S. 330, 340; Moore v. Bobbins, 96 U. S. 530. This doctrine is undoubtedly true, but its limitation is found in the statement that such rulings “ may be reviewed and annulled by the courts when a controversy arises between parties founded upon their decisions.” The jurisdiction to determine such questions does not. arise in- the courts of the United States by virtue of any power of- supervision given to them whereby they have a"
},
{
"docid": "22777704",
"title": "",
"text": "legal title is in the United States. After referring to the decision of the Secretary of the Interior against his claim, the petition says, that, “ in pursuance of this decision, an order was issued authorizing the defendants and other purchasers of the Vallejo title to enter the lands claimed by them; and the said defendants have entered, and will be enabled to receive a patent for, the said quarter-section.” It plainly appears from this, first, that defendants -had not the legal title; second, that it was in the United States; and, third, that the matter was still in fieri, and under tbe control of tbe land officers. Nothing in record of the case before us gives evidence that any further steps in that department have been taken in tbe cage. We have repeatedly held that the courts will not interfere with the officers of the government while in the discharge of their duties in disposing. of the public lands, either by injunction or mandamus. Litchfield v. Register and Receiver, 9 Wall. 552; Gaines v. Thompson, 7 id. 347; The Secretary v. McGarrahan, 9 id. 298. And we think it would be quite as objectionable to permit a State court, while such a question was under the consideration and within the control of the executive departments, to take jurisdiction of the case by reason of their control of the parties concerned, and render decree in advance of the action of the government, which would render its patents a nullity when issued. After the United States has parted with its title, and tbe individual has become vested with it, the equities subject to which he holds it may be enforced, but not before. Johnson v. Towsley, 13 id. 72 ; Shepley v. Cowan, 91 U. S. 330. We did not deny the right of the courts to deal with the possession of the land prior to the issue of the patent, or to enforce contracts between the parties concerning the land. But it is impossible thus to transfer a title which is yet in the United States. — If, however, we"
},
{
"docid": "23164814",
"title": "",
"text": "Mr. Justice MILLER delivered the opinion of the court. The principle has been so repeatedly decided in this court, that the judiciary cannot interfere either by mandamus or injunction with executive officers such as the respondents here, in the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion, that it would seem to be useless to repeat it here. In the case of Gaines v. Thompson decided at the last term of this court, the whole subject was fully considered, and the cases in this court examined. The doctrine just stated was announced as the result of that examination. The case of The Secretary v. McGarrahan, of the present term, reaffirms the principle, which must now be considered as settled. Both these cases had reference to efforts similar to the present, to control the officers of the land department. It is insisted, however, by the complainant, that the present case does not come within the rule so laid down, and his argument is plausible. A little consideration, however, will show that it is unsound. The lands in controversy are situated within the land district over which these officers have authority to receive proof of pre-emption, and grant certificate of entry. There are within that district, of course, lands open to sale and preemption. There would be no use for the land office if there were not. The very first duty which the register is called on to perform, when an application is made to him to enter a tract of land, is to ascertain whether it is subject to entry. This depends upon a variety of circumstances. Has there been a proclamation offering it for sale ? Has it been reserved by any action of Congress, or of the proper department ? Has it been granted by any act of Congress, or has it been sold already ? These are all questions for him to decide, and they require the exercise of judgment and discretion. The bill shows on its face that these officers, in the exercise"
},
{
"docid": "13786136",
"title": "",
"text": "the rights of the parties as between themselves, notwithstanding the errors and the frauds alleged and shown. The principle is that “the decision of the officers of the Land Department, made within the scope of their authority on questions of this kind, is in general conclusive everywhere, except when reconsidered by way of appeal within that department; and that as to the facts on which their decision is based, in the absence of fraud or mistake, that decision is conclusive even in courts of justice when the title aftenvards copies in question. But that in .this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct, mistakes, to relieve against frauds and impositions, and, in cases where it is clear that those officers have by a mistake of the laAV given to one man the land Avhich on the undisputed facts belonged to another, to give appropriate relief.” Moore v. Bobbins. 96 U. S. 530, 535; Shepley v. Cowan, 91 U. S. 330; Johnson v. Towsley, 13 Wall. 72; Marquez v. Frisbie, 101 U. S. 473; Yanoe v. Bv/rbanh, 101 U. S. 514; Quinby v. Gordon, 104 U. S. 420, 425; White v. Cannon, 6 Wall. 443; Silver v. Ladd, 7 Wall.. 219, 228. In Smelting Co. v. Kemp, 104 U. S. 636, 647, it Avas said: “ If in issuing a patent its officers took mistaken vieAvs of the laAV, or drew erroneous conclusions from the evidence, or acted from imperfect views of their duty, or even from corrupt motives, a court of law can afford no remedy to a party alleging that he is thereby aggrieved. He must resort to a court of equity for relief, and evén there his complaint cannot be heard unless he connect himself with the original source of title, so as to be able to aver that his rights are injuriously affected by the existence of the patent; and he must possess such equities as will control the legal title in the patentee’s hands.” And in Silver v. Ladd, 7 Wall. 219, 228, the doctrine"
},
{
"docid": "19197869",
"title": "",
"text": "State in that case could not be1 permitted to' prove that thé land which the State had conveyed to him as swamp land was in fact such, a total failure of justice would occur, and the entire grant to the State might be defeated by this neglect or refusal of the Secretary to perform his duty. Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Litchfield v. Register and Receiver, 9 Wall. 575. There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest implication, that if, in that case, the Secretary had made any decision, the evidence would have been excluded.” The same general question arose, under somewhat different circumstances, in Ehrhardt v. Hogaboom, 115 U. S. 67, 69, which was an action to recover possession of a tract of land in California; the plaintiff deraigning title through a conveyance by one to whom the United States had issued a patent in 1875; the defendant contending that the lands in controversy, although covered .by the above • patent, were, in fact, lands that passed to the State under the Swamp Land act of 1850. The question was, whether the defendant, who did not connect himself in any way with the title, and was a mere intruder, without color of title, could be admitted to show by parol evidence that the lands were in fact swamp and overflowed. The court said : “In that case [French v. Fyan, 93 U. S. 169] parol evidence to show that the land covered by a patent to Missouri under the act was not swamp and overflowed land, was held to be inadmissible. On the same principle parol testimony to show that the land covered by a patent of the United States to a settler under the preemption laws was such swamp and overflowed land must be held to be inadmissible to defeat the patent.. It is the duty of the land department, of which the Secretary is the head, to determine whether land patented to a settler is of the class"
},
{
"docid": "22765173",
"title": "",
"text": "Kendall v. Stokes, 12 Pet. 524, and the action of the Circuit Court sustained in a proceeding where it had commanded the Postmaster General to credit the relator with a certain sum awarded to him by the Solicitor of the Treasury under an act of Congress authorizing the latter to adjust the claim, this being regarded as purely a ministerial duty. In Decatur v. Paulding, 14 Pet. 497, a mandamus was refused upon the same principle, to compel the Secretary of the Navy to allow to the widow of Commodore Decatur a certain pension and arrearages. Indeed, the reports of this court abound with authorities to the same effect. Kendall v. Stokes, 3 How. 87; Brashear v. Mason, 6 How. 92; Reeside v. Walker, 11 How. 272; Commissioner of Patents v. Whiteley, 4 Wall. 522; United States v. Seaman, 17 How. 224, 231; United States v. Guthrie, 17 How. 284; United States v. The Commissioner, 5 Wall. 563; Gaines v. Thompson, 7 Wall. 347; The Secretary v. McGarrahan, 9 Wall. 298; United States v. Schurz, 102 U. S. 378; Butterworth v. Hoe, 112 U. S. 50; United States v. Black, 128 U. S. 40. In all these cases the distinction between judicial and ministerial acts is commented upon and enforced. We have no doubt the principle of these decisions applies to a case wherein it is contended that the act of the Head of a Department, under any view that, could be taken „of the facts that were\"laid before him,, was ultra vires, and'beyond the scope of his authority. If he has no power at all to do the act complained of, he is as much subject to an injunction as he would be to a mandamus if he refused to do- an' act which the law plainly required him to do. As .observed by Mr, Justice Bradley in Board of Liquidation v. McComb, 92 U. S. 531, 541: “ But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain"
},
{
"docid": "16445005",
"title": "",
"text": "are not numerous, and assert separate and independent rights. Hale v. Allinson, 188 U. S. 56; Cruickshank v. Bidwell, 176 U. S. 73. But, in the next place, was the Circuit Court justified in thus arresting the action of the Land- Department in proceeding with a survey under the circumstances ? In other words, can the Land Department be stayed in the discharge of a duty, not' ministerial, but involving the exercise of judgment and discretion, on the ground, that its jurisdiction has been lost by estoppel? We do not think so, and hold that complainants’ contention that they are entitled to. bound upon the lake involves a legal right, which cannot be properly passed on until after the department has acted. ■ Having participated in the proceedings before the department, complainants, after survey was ordered, obtained this injunction' against, further administrative action, on the ground of absolute want of power, and not of error in its exercise. The administration of .the public lands is vested in the Land Department, and its power in that regard cannot be divested by the. fraudulent action of a subordinate officer, outside of his authority, and in violation of the statute. Whiteside v. United States, 93 U. S. 247; Moffat v. United States, 112 U. S. 24; Hume v. United States, 132 U. S. 406, 414. The courts can neither correct nor make surveys'. The power to-do so is reposed in the political department of the government, and the Land Department, charged with the duty of surveying the public domain, must primarily determine what are public lands' subject tp survey and disposal under the. public land. laws. Possessed of the power, in general, its exercise of jurisdiction cannot be questioned by the courts before it has taken final action. Brown v. Hitchcock, 173 U. S. 473. In Litchfield v. The Register and Receiver, 9 Wall. 575, Litchfield sought an injunction to restrain the register and receiver of the Hnited States land office at Port Dodge, Iowa, from entertaining and acting upon applications made to them to prove preemptions to certain lands which lay within"
},
{
"docid": "22226549",
"title": "",
"text": "testimony; and it cannot be doubted that the decision of the Land Department, one way or the other, in reference to these questions is conclusive' and not open to relitigation in the courts, except in those cases of fraud, etc., which permit any determination to be reexamined.” (Citing cases.) See also Johnson v. Drew, 171 U. S. 93; Gardner v. Bonestell, 180 U. S. 362. But there is another class of cases in which the rule is somewhat differently, and perhaps more broadly, stated, and that is, that where Congress has committed to the head of a department certain duties requiring the exercise of . judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts, unless he has exceeded Ms authority or this court should be of opinion that Ms action was clearly wrong. In the early case of Decatur v. Paulding, 14 Pet. 497, it was said that .the official duties of the head of an executive department,' whether imposed by act of Congress or resolution, are not mere ministerial duties; and, as was said by this court in the recent case of Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 324: “Whether he decided right or wrong is hot the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was his duty-to decide as he thought the law was, and the courts have no power whatever under those circumstances to review his determina^tion by mandamus or' injunction.” In Marquez v. Frisbie, 101 U. S. 473, which was a bill in equity to review the decision of the Land Department in a preemption ease, Mr. Justice Miller remarked (p. 476): “This means, and it is a sound principle, that where there is a mixed question ©f law and fact, and the court cannot so separate it. as to show clearly where the mistake of law is, the decision of the tribunal to which the law had confided the matter is conclusive.” In Gaines v. Thompson, 7 Wall. 347, it*was held that the court"
},
{
"docid": "22070832",
"title": "",
"text": "Mr. Justice Peckham, after making the foregoing statement of facts, delivered the opinion of the court. We have set out in the foregoing statement of facts, at very great length, a large portion of the contents of the petition and answer in this case. It has been done for the purpose of showing by the record itself the questions of law arising therefrom. Upon a per.usal of the record it appears that those questions are not merely formal ones nor are they so plain as not to require the careful judgment of any tribunal to which they u be referred for decision,' Their solution was properly submiUw to the Land Department, which had full and complete jurisdiction over the matters arising under the act of June 4, 1897, and it thereby became the duty of the officers of that department to decide them. As is said in Knight v. United States Land Association, 142 U. S. 161: “The Secretary is the guardian of the people of the United States over the public lands. The obligations of his oath of office oblige him to see that the law is carried out, and that none, of the public domain is wasted or is disposed of to a party not entitled to it. He represents the Government, which is a party in interest in every case- involving the surveying and disposal of the public lands.” Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with judicial functions, to which is confided the execution of the laws which regulate the purchase, selling and care and disposition of the public lands. Neither an injunction nor mandamus will lie against an officer of the Land Department to control him in discharging an official duty which requires the exercise of his judgment and discretion. Marquez v. Frisbie, 101 U. S. 473; Gaines v. Thompson, 7 Wall. 347; United States v. Black, 128 U. S. 40; United States v. Window, 137 U. S. 636. In Decatur v. Paulding, 14 Pet. 497, it was held that, in general,"
},
{
"docid": "10429806",
"title": "",
"text": "of law * * *; (4) where the action of the officer or administrative body is clearly beyond its power and in violation of the statute * * *; '(5) where an officer has acted, or threatens to act, in a capricious and arbitrary manner * * *; (6) where the act of the officer, ‘under any view that could be taken of the facts that were laid before him, was ultra vires, and beyond the scope of his authority [and] he has no power at all to do the act complained of * * *.’ ” The present case comes within none of these exceptions to the general rule. In fact, this case falls into a category in which the rule has been long and strictly applied against those who would challenge or compel the exercise of executive discretion. In 1869, the Supreme Court said: “The principle has been so repeatedly decided in this court, that the judiciary cannot interfere either by mandamus or injunction with executive officers such as the respondents here, in the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion, that it would seem to be useless to repeat it here. In the case of Gaines v. Thompson [7 Wall. 347 [19 L.Ed. 62], decided at the last term of this court the whole subject was fully considered, and the cases in this court examined. The doctrine just stated was announced as the result of that examination. The case of The Secretary [of Interior] v. McGarrahan, of the present term [9 Wall. 298, 19 L.Ed. 579], reaffirms the principle, which must now be considered as settled. Both these cases had reference to efforts similar to the present, to control the officers of the land department (Italics supplied in part) In 1880, the same Court said: “Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. This court has with a strong hand upheld the doctrine"
},
{
"docid": "13786131",
"title": "",
"text": "appealed from, and the appeal itself is the mode pointed out by law for the correction of any error that may be shown in the decision complained of, whether that error has been produced by the practice of fraud and corruption, or was merely an honest mistake. The proof of such fraud and corruption does not, as has been already stated, demonstrate error. The decision' may be right, notwithstanding the fraud, and on the appeal Craig’s title, as it now stands upon the approved survey and plat and the patent, may be adjudged to be valid, and any error in it we must assume will be corrected, whether fraudulent or innocent. The question of fraud, therefore, alleged against Craig and the register and receiver, in view of the relief asked, is immaterial. There is an alternative in which it might be supposed that the question of fraud in procuring the decision of the register and receiver, and thereby obtaining the muniments of title on which Craig’s claim now rests, might become materiel for determination in a judicial cause. That alternative is the supposition, contrary to that on which the complainant rests his case, that the decision of the register and receiver, the issue of the approved survey and plat, and of the patent based thereon, are final and conclusive upon the Department of the Interior, and not subject to the appeal taken to the Commissioner of the General Land Office. It may be asked whether such a determination of inferior officers of the Land Department, involving private rights and interests of great magnitude and value, infected with fraud, is to be protected from attack by judicial process. We are told that “ equity has always had jurisdiction of fraud, misrepresentation, and concealment, and it does not depend upon discovery.” Jones v. Bolles, 9 Wall. 364, 369. That equity will interfere by a proper proceeding where the executive power has exhausted itself. Comrrdssioner v. Whiteley, 4 Wall. 522; Oa/mes v. Thompson, 7 Wall. 347; Litchfield v. Register and Recei/ver, 9 Wall. 575 ; Samson v. Smiley, 13 Wall. 91; Johnson v."
},
{
"docid": "22188245",
"title": "",
"text": "cannot exercise any direct appellate jurisdiction over the rulings of those officers or of their superior in the department in such matters, nor can they reverse or correct them in a collateral proceeding between private parties. In this casé the allegation that false and fraudulent representations, as to the settlement of the plaintiff, were made to the officers of the Land Department is negatived by the finding of the court. It would lead to endless litigation, and be fruitful of evil, if a supervisory power were vested in the courts over the action of the numerous officers of the Land Department, on mere questions of fact presented for their determination. It is only when those officers have misconstrued the law applicable to the case, as established before the department, and thus have denied to parties rights which, upon a correct construction, would have been conceded to them, ór where misrepresentations and fraud- have been practised, necessarily affecting their judgment, that the courts can, in a proper proceeding, interfere and refuse'to give effect to their action. On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be deemed settled. Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330-340; Moore v. Robbins, 96 id. 530. And we may also add, in this connection, that the misconstruction of the law by the officers of the department, which will authorize the interference of the court,' must be clearly manifest, and not alleged upon a possible finding of the facts from the evidence different from that reached by them. And where fraud and misrepresentations are- relied upon as grounds of interference by the court, they should be stated with such fulness and particularity as to show that they must necessarily have affected the action of the officers of the department. Mere general allegations of fraud and- misre presentation's will not suffice. United States v. Atherton, 102 U. S.- 372. ' In the present case the respective claims of the parties to a pre-emptive right to the land in controversy, from their settlement and improvements, had"
},
{
"docid": "10429807",
"title": "",
"text": "the discharge of their official duties, unless those duties are of a character purely ministerial, and involving no exercise of judgment or discretion, that it would seem to be useless to repeat it here. In the case of Gaines v. Thompson [7 Wall. 347 [19 L.Ed. 62], decided at the last term of this court the whole subject was fully considered, and the cases in this court examined. The doctrine just stated was announced as the result of that examination. The case of The Secretary [of Interior] v. McGarrahan, of the present term [9 Wall. 298, 19 L.Ed. 579], reaffirms the principle, which must now be considered as settled. Both these cases had reference to efforts similar to the present, to control the officers of the land department (Italics supplied in part) In 1880, the same Court said: “Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the government conveyed to the citizen. This court has with a strong hand upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere.” In 1912,i Chief Justice White stated with approval the quoted language of the Schurz case and added: “Indeed the doctrine upon which the court below based its action has been frequently, announced and enforced. It was thus epitomized in Brown v. Hitchcock, 173 U.S. 473, 476, 19 S.Ct. 485, 43 L.Ed. 772, that ‘until the legal title to public land passes from the Government, inquiry as to all equitable rights comes within the cognizance of the Land Department.’ ” The Government may. dispense its bounty on such terms as it sees fit; and the executive agency which Congress has chosen for the purpose of giving away public lands and mineral deposits is peculiarly equipped, in terms of experience and administrative capacity, to act in its behalf."
},
{
"docid": "22188246",
"title": "",
"text": "On this subject we have repeatedly and with emphasis expressed our opinion, and the matter should be deemed settled. Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 330-340; Moore v. Robbins, 96 id. 530. And we may also add, in this connection, that the misconstruction of the law by the officers of the department, which will authorize the interference of the court,' must be clearly manifest, and not alleged upon a possible finding of the facts from the evidence different from that reached by them. And where fraud and misrepresentations are- relied upon as grounds of interference by the court, they should be stated with such fulness and particularity as to show that they must necessarily have affected the action of the officers of the department. Mere general allegations of fraud and- misre presentation's will not suffice. United States v. Atherton, 102 U. S.- 372. ' In the present case the respective claims of the parties to a pre-emptive right to the land in controversy, from their settlement and improvements, had been the subject of earnest contestation before the officers of the Land. Department, and a decision in favor of the plaintiff was finally rendered by the Secretary of the Interior. And the question whether the land in controversy had been so freed from its reservation under the-Mexican grant as to be open to settlement and pre-emption , depended, upon matters disclosed by the record of proceedings in the Land Department, namely, that the’public surveys had been extended over the land, and that other lands had been appropriated to the satisfaction of the grant. Judgment affirmed."
},
{
"docid": "22070833",
"title": "",
"text": "of his oath of office oblige him to see that the law is carried out, and that none, of the public domain is wasted or is disposed of to a party not entitled to it. He represents the Government, which is a party in interest in every case- involving the surveying and disposal of the public lands.” Congress has constituted the Land Department, under the supervision and control of the Secretary of the Interior, a special tribunal with judicial functions, to which is confided the execution of the laws which regulate the purchase, selling and care and disposition of the public lands. Neither an injunction nor mandamus will lie against an officer of the Land Department to control him in discharging an official duty which requires the exercise of his judgment and discretion. Marquez v. Frisbie, 101 U. S. 473; Gaines v. Thompson, 7 Wall. 347; United States v. Black, 128 U. S. 40; United States v. Window, 137 U. S. 636. In Decatur v. Paulding, 14 Pet. 497, it was held that, in general, the official duties of the head of one of the executive departments, whether imposed by act of Congress or by resolution, are not mere ministerial duties. The head of an executive department of the Government in the administration of the various and important concerns of his office is continually re--quired to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of Congress under which he is from time to time required to act. That the decision of the questions presented to the Secretary of the Interior was no merely formal or ministerial act is shown beyond the necessity of argument by a perusal of the foregoing' statement of the issues presented by this record for the decision of the Secretary. Whether he decided right or wrong, is not the question. Having jurisdiction to decide at all, he had necessarily jurisdiction, and it was Ms duty to decide as he thought the law was, and the courts have no power whatever under those circumstances to review his determination by mandamus"
}
]
|
257706 | v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983); 28 U.S.C. § 2254(a). Claims that merely challenge the correctness of jury instructions under state law cannot reasonably be construed to allege a deprivation of federal rights. Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986); Gutierrez, 695 F.2d at 1197. To prove a due process violation based on jury instructions, a habeas petitioner must show that the “instruction by itself ... infected the entire trial....” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)); see REDACTED Undesirable, erroneous, or even universally condemned instructions may survive due process scrutiny. Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. Pilón has failed to show a federal due process violation by the state trial court’s failure to give the separate deadly weapon instruction. The failure to give that instruction did not infect Pilon’s trial nor render it fundamentally unfair. Cam-itsch, 705 F.2d at 355; see Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. The judgment is AFFIRMED. . Although we have at least twice limited our review to those issues to which a district court has limited a certificate of probable cause, we have not squarely addressed the issue | [
{
"docid": "9448771",
"title": "",
"text": "were present only with regard to one of the four witnesses. Since Camitsch had offered the instruction without limiting it to one witness, the court found the trial judge justified in refusing to give it. Camitsch does not contend that the refusal to give the instruction rendered the trial itself fundamentally unfair. Such a claim, if established, would justify federal habeas relief. See Henderson v. Kibbe, 431 U.S. 145, 154-55, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977); Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Rather he contends that at the time of his trial, the refusal should have led to his being granted a new trial on appeal. Thus, he argues, the fact that the Montana Supreme Court reviewed the jury instructions under current state law, rather than under that in effect at the time of trial, deprived him of his right to a new trial. We find the contention to be without merit. Judicial decisions are not subject to the constitutional prohibition against ex post facto legislation. Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977). Such a decision may violate due process if the court’s interpretation of a criminal statute enlarges its scope to cover behavior not previously considered to be unlawful. See Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964). But this does not mean that every change in state law violates due process. As the Court stated in Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965), “the Constitution neither prohibits nor requires retrospective effect” of a new rule of constitutional law. It can thus hardly prohibit retroactive application of an interpretation of state law. The Linkletter Court did, however, recognize an obligation to “weigh the merits and demerits in each case.” Id. Certainly changes in state law regarding jury instructions can be envisioned that would be so prejudicial to the defendant’s right to a fair trial as to render retrospective application violative of due"
}
]
| [
{
"docid": "13827342",
"title": "",
"text": "or to conform one’s conduct to the requirements of the law.” Judge DeBruler urged that Wilson be granted a new trial. Wilson filed the instant petition for writ of habeas corpus challenging the language of the jury instruction. Wilson with the aid of a legal assistant filed a traverse. The petition for writ was denied, and this appeal followed. II. In Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977), the Court articulated the standard for waging a collateral attack on jury instructions. The Court stated that the petitioner must not merely show that the instruction was “undesirable, erroneous, or even universally condemned,” but must show that the ailing instruction “by itself so infected the entire trial that the resulting conviction violated due process.” Id. at 154, 97 S.Ct. at 1736, citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368. It is a well-settled proposition that a single jury instruction should not be judged in artificial isolation but be viewed in the context of the overall charge, because the process of instruction is but “one of several components of the trial which may result in the judgment of conviction.” Henderson, 431 U.S. at 153 n. 10, 97 S.Ct. at 1736 n. 10; Cupp, 414 U.S. at 147, 94 S.Ct. at 400. With these principles, we consider Wilson’s objections to the jury instruction. Wilson contends that the instruction was erroneous and improper because it was ambiguous, limited the freedom of the jury to consider the evidence and unduly emphasized the evidence of Wilson’s I.Q. Wilson speculates that the instruction could have been construed as meaning that the expert testimony pertaining to Wilson’s low I.Q. was not to be given any weight, thus relieving the state of some of its burden of proving Wilson sane beyond a reasonable doubt. In Hill v. State, 252 Ind. 601, 611, 251 N.E.2d 429 (1969), the Indiana Supreme Court adopted the A.L.I. definition of insanity and applied the new standard to defendant’s argument that he had a low I.Q. bordering on retardation. While acknowledging"
},
{
"docid": "6182818",
"title": "",
"text": "Cir.1986); see Wallis v. O’Kier, 491 F.2d 1323, 1325 (10th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974); Kennedy v. Commandant, 377 F.2d 339, 342 (10th Cir.1967). The record in this case indicates that the Military Court of Appeals considered Monk’s claim that the military judge’s reasonable doubt instruction deprived him of his right to due process. See United States v. Martin, 13 M.J. 66 (C.M.A.1982). We nonetheless hold that this constitutional claim is subject to our further review because it is both “substantial and largely free of factual questions.” Mendrano, 797 F.2d at 1542 n. 6; see Calley v. Callaway, 519 F.2d 184, 199-203 (5th Cir.1975), cert. denied, 425 U.S. 911, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976). “Consideration by the military of such [an issue] will not preclude judicial review for the military must accord to its personnel the protections of basic constitutional rights essential to a fair trial and the guarantee of due process of law.” Calley, 519 F.2d at 203; see Burns, 346 U.S. at 142, 73 S.Ct. at 1048 (plurality opinion); Wallis, 491 F.2d at 1325 (where a military prisoner is in custody by reason of an alleged constitutional violation, “the constitutional courts of the United States have the power and are under the duty to make inquiry.”). In reviewing the reasonable doubt instruction itself, we recognize that this instruction “may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); United States v. McIntyre, 836 F.2d 467, 473 (10th Cir.1987). The purpose of this review is not to determine whether “the instruction is undesirable, erroneous or even ‘universally condemned,’ ” but rather “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp, 414 U.S. at 146, 147, 94 S.Ct. at 400, 401; see Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). This standard is met, and habeas corpus relief will be"
},
{
"docid": "3058688",
"title": "",
"text": "to determine that it was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 22-23, 87 S.Ct. at 827-828. The application of this standard to federal habeas review of a state criminal conviction involving defective jury instructions was explained by the Supreme Court in Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977): “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,’ Cupp v. Naughten, 414 U.S., [141] at 147 [94 S.Ct., 396 at 400, 38 L.Ed.2d 368] ..., not merely whether ‘the instruction is undesirable, erroneous, or even “universally condemned,” ’ id., at 146 [94 S.Ct., at 400] Id. at 154, 97 S.Ct. at 1 (emphasis added) (footnote omitted). See Gillihan v. Rodriguez, 551 F.2d 1182, 1192 (10th Cir.), cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977). These standards are also used to determine the effect of the failure to instruct the jury on an element of the crime. Kibbe, 431 U.S. at 153-57, 97 S.Ct. at 1736-1738. The omission must be evaluated in the context of the entire record, including testimony and the argument of counsel. Id. at 152, 97 S.Ct. at 1735. Although we do not agree with all of the state court of criminal appeals’ fact findings or its use of some items not in evidence to support its determination of harmless error, we nonetheless conclude beyond a reasonable doubt that the omitted instruction did not affect the verdict in this case. Our review of the entire record convinces us that the omitted instruction did not so infect the entire trial that the resulting conviction violated due process. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1736. The jury was told in the State’s closing argument that it had to"
},
{
"docid": "314047",
"title": "",
"text": "robber was armed, nor was the fact disputed at trial. In the absence of any evidence that would create a reasonable doubt about the presence of the gun, failure to instruct the jury on the state’s burden of proof was harmless error. C. No Due Process Denial A state prisoner may obtain federal habeas corpus relief only if he is held in custody in violation of the Constitution, laws, or treaties of the United States. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983); 28 U.S.C. § 2254(a). Claims that merely challenge the correctness of jury instructions under state law cannot reasonably be construed to allege a deprivation of federal rights. Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986); Gutierrez, 695 F.2d at 1197. To prove a due process violation based on jury instructions, a habeas petitioner must show that the “instruction by itself ... infected the entire trial....” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)); see Camitsch v. Risley, 705 F.2d 351, 355 (9th Cir.1983) (instruction that renders trial fundamentally unfair justifies habeas relief). Undesirable, erroneous, or even universally condemned instructions may survive due process scrutiny. Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. Pilón has failed to show a federal due process violation by the state trial court’s failure to give the separate deadly weapon instruction. The failure to give that instruction did not infect Pilon’s trial nor render it fundamentally unfair. Cam-itsch, 705 F.2d at 355; see Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. The judgment is AFFIRMED. . Although we have at least twice limited our review to those issues to which a district court has limited a certificate of probable cause, we have not squarely addressed the issue of whether we are bound by such a limitation. See United States ex rel. Nunes v. Nelson, 467 F.2d 1380 (9th Cir.1972) (per curiam);"
},
{
"docid": "314048",
"title": "",
"text": "1736, 52 L.Ed.2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)); see Camitsch v. Risley, 705 F.2d 351, 355 (9th Cir.1983) (instruction that renders trial fundamentally unfair justifies habeas relief). Undesirable, erroneous, or even universally condemned instructions may survive due process scrutiny. Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. Pilón has failed to show a federal due process violation by the state trial court’s failure to give the separate deadly weapon instruction. The failure to give that instruction did not infect Pilon’s trial nor render it fundamentally unfair. Cam-itsch, 705 F.2d at 355; see Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. The judgment is AFFIRMED. . Although we have at least twice limited our review to those issues to which a district court has limited a certificate of probable cause, we have not squarely addressed the issue of whether we are bound by such a limitation. See United States ex rel. Nunes v. Nelson, 467 F.2d 1380 (9th Cir.1972) (per curiam); Choate v. Wilson, 363 F.2d 543, 545 (9th Cir.1966). But see Choate, 363 F.2d at 546 (Hamley, J., concurring) (expressing view that certificate of probable cause may not effectively limit issues on appeal because certificate serves to confer jurisdiction, not to specify issues). . The Second Circuit has characterized limited certificates as \"a court’s sensible attempt to focus the attention of the litigants on the issues that merit review under the relevant standard.” Vicaretti v. Henderson, 645 F.2d 100, 102 (2d Cir.1980), cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70 L.Ed.2d 171 (1981). Two other circuits have referred in passing to limited certificates, and have suggested opposing views. See Nelson v. Moore, 470 F.2d 1192, 1194 n. 1 (1st Cir.1972) (giving effect to limited certificate issued by a previous circuit court panel), cert. denied, 412 U.S. 951, 93 S.Ct. 3017, 37 L.Ed.2d 1003 (1973); Johnson v. Bennett, 386 F.2d 677, 678 (8th Cir.1967) (doubting, without deciding, whether trial court may limit issues), vacated and remanded on other grounds, 393 U.S. 253, 89 S.Ct. 436,"
},
{
"docid": "18593958",
"title": "",
"text": "§ 2901.05(A) (Baldwin 1982). However, this erroneous instruction does not rise to the level of a constitutional violation because it did not place the burden of proof of an element of the offense on the defendant. A jury instruction which violates only state law cannot provide a basis for habeas corpus relief. Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1257, 92 L.Ed. 1683 (1948); Watters v. Hubbard, 725 F.2d 381, 383 (6th Cir.1984); Combs v. Tennessee, 530 F.2d 695 (6th Cir.), cert. denied, 425 U.S. 954, 96 S.Ct. 1731, 48 L.Ed.2d 198 (1976). Wood’s second argument is intertwined with his first. He claims that the erroneous instruction holding him to a greater standard of proof than was required by Ohio law violated his constitutional right to a fair trial, and that the later written instruction did not cure the confusion caused by the contradictory oral instructions. Jury instructions in a criminal case must be evaluated in the context of the overall charge. Engle v. Koehler, 707 F.2d 241, 244 (6th Cir.1983), aff'd, 466 U.S. 1, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984). Although the written instruction contradicts the first oral instruction given in this case, we believe that viewing the instructions as a whole, the defendant’s constitutional rights were not violated. The correct instruction was written, rather than oral, and correctly explained not only the burdens of proof but the insanity defense itself. In a habeas proceeding, allegedly improper jury instructions must be shown to have infected the accused’s trial to such a degree as to constitute a clear violation of due process. The petitioner must show more than that the instructions are undesirable, erroneous, or universally condemned. Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) quoting Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). Because the burden of proof of the affirmative defense of insanity may constitutionally be placed on a criminal defendant, Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), an oral jury instruction placing this burden on"
},
{
"docid": "1263974",
"title": "",
"text": "Court reviewed Frady’s claim under the cause and prejudice standard. Drawing from its decision in Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), another case in which a habeas petitioner challenged jury instructions to which he had not objected at trial, the Court repeated that a petitioner can demonstrate prejudice resulting from such an instruction only if “ ‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,’ ” and not merely because “ ‘the instruction is undesirable, erroneous, or even universally condemned.’ ” Frady, 456 U.S. at 169, 102 S.Ct. at 1595 (quoting Henderson, 431 U.S. at 154, 97 S.Ct. at 1736, which in turn quoted Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). The Court stressed that Frady bore the burden of showing not just the “possibility of prejudice as a result of the instructional error,” but an “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170, 102 S.Ct. at 1596. Applying these standards, the Court determined that Frady failed to satisfy the prejudice prong of the cause and prejudice test. The Court, therefore, refused relief without addressing the cause prong of the test. Id. at 170-74, 102 S.Ct. at 1595-97. Shaid, however, relies upon a passage in which the Supreme Court explains why Frady failed to satisfy the actual prejudice requirement. The Court states: [W]e emphasize that this would be a different case had Frady brought before the District Court affirmative evidence indicating that he had been convicted wrongly of a crime of which he was innocent. But Frady, it must be remembered, did not assert at trial that he and Richard Gordon beat Thomas Bennett to death without malice. Instead, Frady claimed he had nothing whatever to do with the crime. The evidence, however, was overwhelming, and Frady promptly abandoned that theory on appeal. [Citation omitted]. Since that time, Frady has never presented colorable evidence, even from his own testimony, indicating such justification, mitigation, or excuse that would"
},
{
"docid": "14344872",
"title": "",
"text": "1691, 1692, 48 L.Ed.2d 126 (1976). However, in judging whether the state has transgressed constitutional bounds, a federal court sitting in habeas exercises a limited role. When, as here, a collateral attack on a state conviction is premised on an assertedly erroneous jury instruction, that instruction “may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Moreover, the question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, Cupp v. Naughten, 414 U.S. at 147 [94 S.Ct. at 400], not merely whether ‘the instruction is undesirable, erroneous or even universally condemned,’ id. at 146 [94 S.Ct. at 400].” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Cooper v. North Carolina, 702 F.2d 481, 483 (4th Cir.1983); see Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982). The petitioner first challenges that portion of Instruction No. 7 equating “reasonable doubt” with “good and substantial doubt.” Appellate courts that have considered similar “restatements” of the reasonable doubt standard have been uniformly disapproving of such attempts to elaborate on the critical concept, see, eg., Whiteside v. Parke, 705 F.2d 869, 871 (6th Cir.1983); United States v. Martin-Trigona, 684 F.2d 485, 493 (7th Cir.1982); United States v. Rodriguez, 585 F.2d 1234, 1240-42 (5th Cir.1978), cert. denied, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980), modified on other grounds sub nom. Albernaz v. United States, 612 F.2d 906 (1980) (en banc), aff’d, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Dunn v. Perrin, 570 F.2d 21, 23 (1st Cir.1978); see also Taylor v. Kentucky, 436 U.S. 478, 488, 98 S.Ct. 1930, 1936, 56 L.Ed.2d 468 (1978), and often remind trial courts that “[attempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.’ ” Whiteside v. Parke, 705 F.2d"
},
{
"docid": "7158196",
"title": "",
"text": "Kirby holding, it leaves the great bodily harm requirement — which is the only part of the Kirby holding relevant here — intact. Even if the Wisconsin courts or legislature were to repudiate Kirby’s holding on great bodily harm at some future date, no such change in the law could be applied retroactively to Cole, for reasons we have already explained. For the definitive statement of Wisconsin law pertinent to Cole’s challenge, therefore, we must still look to Kirby. VI. Instructional Error as a Constitutional Violation We have found that Cole was convicted of mayhem without any jury instruction being given on great bodily harm, which is an essential element of mayhem under Wisconsin law. Cole contends that a conviction under these circumstances violates the fourteenth amendment’s due process clause. To prevail on this claim, Cole must carry a heavy burden. Instructional error will not support a petition for federal habeas relief unless it is shown “not merely that the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), but that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 147, 94 S.Ct. at 400; Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). We hold that the complete failure to give any jury instruction on an essential element of the offense charged, under circumstances indicating that the jury was not otherwise informed of the necessity of proof of the element, is a violation of due process. A. Failure to Instruct on an Essential Element State and federal courts alike have long recognized that the. failure to give any instruction on an essential element of a criminal offense is fundamental error, requiring reversal of the defendant’s conviction. See, e.g., United States v. Howard, 506 F.2d 1131 (2d Cir.1974); Byrd v. United States, 342 F.2d 939 (D.C.Cir.1965); United States v. Greichunos, 572 F.Supp. 220 (N.D.Ill.1983); C. Wright, Federal Practice and Procedure Crim.2d § 487 (1982) (collecting federal cases); 75 Am.Jur.2d"
},
{
"docid": "12888602",
"title": "",
"text": "paragraph or one phrase standing alone ordinarily does not constitute reversible error; but it is otherwise if two instructions are in direct conflict and one is clearly prejudical, for the jury might have followed the erroneous instructions.” United States v. Walker, 677 F.2d 1014, 1016 n. 3 (4th Cir.1982), quoting McFarland v. United States, 174 F.2d 538, 539 (D.C.Cir. 1949). In collateral review of a jury charge, the court can grant relief only if a stringent standard is met by the petitioner: that of demonstrating that “the offending instruction is so oppressive as to render a trial fundamentally unfair.” Adkins v. Bordenkircher, 517 F.Supp. 390, 399 (S.D.W.Va. 1981), aff’d, 674 F.2d 279 (4th Cir.1982). The Supreme Court recently stated, in a case in which the petitioner’s claim, like Cooper’s, was that an omission in the jury charge constituted error, that [t]he burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S. [141] 147 [94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” id. at 146 [94 S.Ct. at 400]. In this case, the respondent’s burden is especially heavy because no erroneous instruction was given; his claim of prejudice is based on the failure to give any explanation beyond the reading of the statutory language itself of the causation element. An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbe, 431 U.S. 145, 154-155, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). It is apparent that to afford Cooper relief this court must find that he has carried a very heavy burden of persuasion. III. Cooper’s primary objection to the trial judge’s jury instructions is the latter’s"
},
{
"docid": "6845026",
"title": "",
"text": "of federal or state practice with respect to instructions on the subject of an alibi defense, see People v. Johnson, 37 A.D.2d 733, 323 N.Y.S.2d 880 (2d Dept. 1971), the issue upon this review of a decision on a federal habeas petition is not whether the state court’s “instruction is undesirable, erroneous, or even ‘universally condemned,’ ” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1970), but whether “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 147, 94 S.Ct. at 400. See also United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975) (state court jury charge is a matter of state law, and alleged errors are not reviewable on federal habeas corpus absent showing that defendant was deprived of a federal constitutional right). Petitioner’s burden in meeting the Cupp v. Naughten standard is particularly heavy for the reason that unlike the situation in Burse, Booz and Johnson, supra, defense counsel neither submitted a proposed alibi charge to the trial court nor objected to the instruction that was given. The Supreme Court recently stated: “Orderly procedure requires that the respective adversaries’ views as to how the jury should be instructed be presented to the trial judge in time to enable him to deliver an accurate charge and to minimize the risk of committing reversible error. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977). (Footnotes omitted). Defense counsel at trial merely requested that an alibi charge be given without submitting any suggested text. When asked whether he took exception to the charge that was given, defense counsel unambiguously responded in the negative. Counsel then sought and obtained a clarifying instruction, which essentially tracks the heart of the proposed alibi instruction in the standard federal practice book. See 1 Devitt & Blackmar, Federal Jury Practice and Instructions,"
},
{
"docid": "21214507",
"title": "",
"text": "at 72, 112 S.Ct. at 482; Henderson v. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1737; Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973); Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir.1999); Mayabb v. Johnson, 168 F.3d 863, 867 (5th Cir.1999), cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999). “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of law.” Henderson v. Kibbe, 431 U.S. at 155, 97 S.Ct. at 1737. The relevant inquiry is whether the failure to give an instruction by itself so infected the entire trial that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400-01; Galvan v. Cockrell, 293 F.3d at 764-65. A federal court may reverse a state court criminal conviction based upon erroneous jury instructions only when the instructions in question render the entire trial fundamentally unfair. Henderson v. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1736; Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400-01; Mayabb v. Johnson, 168 F.3d at 867. Moreover, there is a strong presumption that errors in jury instructions are subject to harmless error analysis. Galvan v. Cockrell, 293 F.3d at 765. Petitioner does not identify any specific defect in the state trial court’s definition of “reasonable doubt” found in the jury instructions at the guilt-innocence phase of petitioner’s capital trial which rendered the guilt-innocence phase of petitioner’s trial fundamentally unfair. This Court’s independent review of the relevant portion of petitioner’s guilt-innocence phase jury instructions disclosed neither the defect identified by the Texas Court of Criminal Appeals in its opinion in Paulson, supra, nor the defect identified by the United States Supreme Court in its opinion in Cage v. Louisiana, 498 U.S. 39, 41, 111 S.Ct. 328, 329-330, 112 L.Ed.2d 339 (1990). This Court’s independent review of the petitioner’s guilt-innocence phase jury instructions disclosed no basis for an objection by petitioner’s trial counsel which would have furnished a potentially meritorious basis for appeal. Finally, applying the harmless error standard"
},
{
"docid": "21886806",
"title": "",
"text": "whether active or passive participation renders each person equally responsible for the crime, and (3) whether a passive participant should be considered an accomplice. The court responded by reading the instruction it had earlier intended to provide: As to Principals, I instruct you that a person may commit a crime by his own personal act, or do the act or acts of another person. Any person who knowingly aids, abets, counsels, hires or otherwise procures the commission of a crime, is equally guilty with the one who actually performs the criminal act, whether or not he is or is not present at the commission of the offense. However, for one person to be guilty of a crime physically committed by another, it is necessary that he have a conscious intent that the criminal act shall be done; and that pursuant to that intent, he do some act or say some word which was intended to, and which did incite, cause, encourage, assist or induce another person to actually commit the crime. The court again refused to give the mere presence charge. An error in instructing the jury cannot constitute a basis for habeas relief unless the error “so infected the entire trial that the resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Futch v. Dugger, 874 F.2d 1483, 1488 (11th Cir.1989). It is not sufficient that the instruction was “undesirable, erroneous, or even ‘universally condemned.’ ” Henderson v. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1736 (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). Jacobs contends that the proffered instruction, while not erroneous, was incomplete because the jury might have construed Jacobs' mere presence in the car as an “act.” “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” ‘ Id. at 155, 94 S.Ct. at 404. The effect of an incomplete instruction must be evaluated in light of the remainder of the charge and the trial as a whole."
},
{
"docid": "14344871",
"title": "",
"text": "that the state prove every element of an offense beyond a reasonable doubt, provides the touchstone for evaluating the challenged instruction. After noting that the reasonable doubt standard is a “prime instrument for reducing the risk of convictions resting on factual error,” the Court in Winship emphasized that the standard is “indispensable, for it ‘impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.’ ” Id. at 363-64, 90 S.Ct. at 1072; see Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (an instruction altering the burden of proof provides a ground for habeas corpus relief). In view of the central role that the reasonable doubt standard plays “[i]n the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 [90 S.Ct. 1068, 1072, 25 L.Ed.2d 368] (1970).” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976). However, in judging whether the state has transgressed constitutional bounds, a federal court sitting in habeas exercises a limited role. When, as here, a collateral attack on a state conviction is premised on an assertedly erroneous jury instruction, that instruction “may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Moreover, the question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, Cupp v. Naughten, 414 U.S. at 147 [94 S.Ct. at 400], not merely whether ‘the instruction is undesirable, erroneous or even universally condemned,’ id. at 146 [94 S.Ct. at 400].” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Cooper v. North Carolina, 702 F.2d 481, 483 (4th Cir.1983); see Engle v. Isaac, 456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d"
},
{
"docid": "21886807",
"title": "",
"text": "to give the mere presence charge. An error in instructing the jury cannot constitute a basis for habeas relief unless the error “so infected the entire trial that the resulting conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Futch v. Dugger, 874 F.2d 1483, 1488 (11th Cir.1989). It is not sufficient that the instruction was “undesirable, erroneous, or even ‘universally condemned.’ ” Henderson v. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1736 (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). Jacobs contends that the proffered instruction, while not erroneous, was incomplete because the jury might have construed Jacobs' mere presence in the car as an “act.” “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.” ‘ Id. at 155, 94 S.Ct. at 404. The effect of an incomplete instruction must be evaluated in light of the remainder of the charge and the trial as a whole. Lamb v. Jernigan, 683 F.2d 1332, 1339 (11th Cir.1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1276, 75 L.Ed.2d 496 (1983). After the court had neglected to provide an aiding or abetting instruction, the jury submitted three questions that revealed its confusion over the distinction between active and passive participation in a crime. We find that the court timely issued a responsive instruction that clarified that one who is not a principal is guilty only if she (1) has a “conscious intent” that a crime be committed and (2) “act[sj” or speaks some word that incites, causes, encourages, assists or induces another to commit a crime. Therefore, one who fails to “act” or speak a word — in other words, one who is merely present at the site of the crime — cannot be found guilty of the crime committed. Jacobs provides no reason for this Court to believe that the jurors made the counterintuitive construction that her mere presence could constitute a qualifying “act.” Indeed, the counterintuitive be comes almost incredible in light of"
},
{
"docid": "1263973",
"title": "",
"text": "test. Just as in the instant case, the court of appeals in Frady decided subsequent to Frady’s conviction that the mens rea instructions given at his trial were improper. The instructions incorrectly equated intent with malice by stating that “a wrongful act ... intentionally done ... is therefore done with malice aforethought.” See Frady, 456 U.S. at 158, 102 S.Ct. at 1589. The trial court also incorrectly instructed the jury that “the law infers or presumes from the use of such weapon in the absence of explanatory or mitigating circumstances the existence of the malice essential to culpable homicide.” Id. Frady did not object to the intent instructions at trial or on direct appeal, challenging them for the first time in a § 2255 motion. He asserted that the erroneous instructions relieved the government of its burden of proving malice, an element of the crime of murder. Thus, he argued, he might have been convicted of a crime of which he was not guilty. Id. at 162, 169-70, 102 S.Ct. at 1591, 1595-96. The Supreme Court reviewed Frady’s claim under the cause and prejudice standard. Drawing from its decision in Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), another case in which a habeas petitioner challenged jury instructions to which he had not objected at trial, the Court repeated that a petitioner can demonstrate prejudice resulting from such an instruction only if “ ‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,’ ” and not merely because “ ‘the instruction is undesirable, erroneous, or even universally condemned.’ ” Frady, 456 U.S. at 169, 102 S.Ct. at 1595 (quoting Henderson, 431 U.S. at 154, 97 S.Ct. at 1736, which in turn quoted Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). The Court stressed that Frady bore the burden of showing not just the “possibility of prejudice as a result of the instructional error,” but an “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S."
},
{
"docid": "314046",
"title": "",
"text": "The jury found Pilón guilty of two counts of armed robbery and specially found that he had been armed with a deadly weapon. Pilon’s sentence was enhanced under Rev. Code Wash. § 9.95.040 based on the jury’s special verdict that he was armed with a deadly weapon. The state court of appeals determined that the failure to give the separate “beyond a reasonable doubt” jury instruction as to the finding that Pilón was armed with a deadly weapon at the time of the robbery was harmless error because there was no dispute that a deadly weapon in fact had been used. The state court of appeals stated: Here, both robbery victims testified that Pilón had been armed with a gun. The pharmacist testified he was familiar with firearms from his military training and recognized the gun as a .38 calibre pistol. Pilon’s co-defendant testified only that she did not see a gun from her vantage point or know that a gun was going to be used. Ño evidence controverts the victims’ testimony that the male robber was armed, nor was the fact disputed at trial. In the absence of any evidence that would create a reasonable doubt about the presence of the gun, failure to instruct the jury on the state’s burden of proof was harmless error. C. No Due Process Denial A state prisoner may obtain federal habeas corpus relief only if he is held in custody in violation of the Constitution, laws, or treaties of the United States. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 1567, 71 L.Ed.2d 783 (1982); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983); 28 U.S.C. § 2254(a). Claims that merely challenge the correctness of jury instructions under state law cannot reasonably be construed to allege a deprivation of federal rights. Givens v. Housewright, 786 F.2d 1378, 1381 (9th Cir.1986); Gutierrez, 695 F.2d at 1197. To prove a due process violation based on jury instructions, a habeas petitioner must show that the “instruction by itself ... infected the entire trial....” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730,"
},
{
"docid": "3980914",
"title": "",
"text": "was denied for failure to exhaust state remedies. Tarpley v. Estelle, No. CA1-80-26 (N.D. Tex. Aug. 5, 1980). I. Tarpley faces an extraordinarily heavy burden. Improper jury instructions in state criminal trials do not generally form the basis for federal habeas relief. Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373 (1973). “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of the state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203, 212 (1977) (footnote omitted). “Before a federal court may grant relief under 28 U.S.C. § 2254 based on alleged error in a state trial court’s unobjected to charge, the error must be so egregious as to rise to the level of a constitutional violation or so prejudicial as to render the trial itself fundamentally unfair.” Baldwin v. Blackburn, 653 F.2d 942, 951 (5th Cir. 1981), cert. denied, 456 U.S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475 (1982); Bryan v. Wainwright, 588 F.2d 1108, 1110-11 (5th Cir. 1979). ***“ ‘[I]t must be established not only that the instruction [was] undesirable, erroneous, or even ‘universally condemned,’ but that it violated some right which was guaranteed to the defendant by the fourteenth amendment, and that ‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ ” Washington v. Watkins, 655 F.2d 1346, 1369 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982) (quoting Cupp, 414 U.S. at 146, 147, 94 S.Ct. at 400, 38 L.Ed.2d at 373); accord Hance v. Zant, 696 F.2d 940, 953 (11th Cir.1983). In applying these principles to the instructions in Tarpley’s case, we pay “careful attention to the words actually spoken to the jury, ... for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom v. Montana, 442"
},
{
"docid": "21214506",
"title": "",
"text": "basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir.2002). “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977); Mayabb v. Johnson, 168 F.3d 863, 867 (5th Cir.1999). The fact a jury instruction was incorrect under state law is not a basis for federal habeas relief. Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2117, 124 L.Ed.2d 306 (1993); Estelle v. McGuire, 502 U.S. 62, 71, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991); Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 853 n. 6, 74 L.Ed.2d 646 (1983). Rather, the question is whether the allegedly ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. at 72, 112 S.Ct. at 482; Henderson v. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1737; Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973); Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir.1999); Mayabb v. Johnson, 168 F.3d 863, 867 (5th Cir.1999), cert. denied, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319 (1999). “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of law.” Henderson v. Kibbe, 431 U.S. at 155, 97 S.Ct. at 1737. The relevant inquiry is whether the failure to give an instruction by itself so infected the entire trial that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400-01; Galvan v. Cockrell, 293 F.3d at 764-65. A federal court may reverse a state court criminal conviction based upon erroneous jury instructions only when the instructions in question render the entire trial fundamentally unfair. Henderson v. Kibbe, 431 U.S. at 154, 97 S.Ct. at 1736; Cupp v. Naughten, 414"
},
{
"docid": "11902916",
"title": "",
"text": "be barred under Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), because of its similarity to the mandatory laws held unconstitutional in Woodson and Roberts. Jurek, 428 U.S. at 271, 96 S.Ct. at 2956 (opinion of Stewart, Powell, and Stevens, JJ.). In reviewing these instructions, however, we bear in mind that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Reviewing courts must resist the temptation to read jury instructions myopically. As the Supreme Court stated in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977), the “burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” The governing standard is that stated in Cupp, “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” 414 U.S. at 147, 94 S.Ct. at 400, and not merely whether the instruction is “undesirable, erroneous, or even ‘universally condemned.’ ” Id. at 146, 94 S.Ct. at 400. We note also that “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson, 431 U.S. at 154, 97 S.Ct. at 1736. See also United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982). Taken as a whole, the instructions leave no doubt that the jury was free to recommend life imprisonment. Immediately after the language in question, the trial judge instructed the jury that “if you believe from all the evidence that the death penalty is not justified,” life imprisonment should be imposed. All the evidence, we believe, necessarily means that the jury was to consider"
}
]
|
866964 | "physical control of Owensby separate and apart from that exerted by the Cincinnati officers. They maintained sole control over the vehicle in which he was placed. Presumably, they would have attempted to keep him from escaping had he been so able and attempted to do so. As such, he was clearly within the ""custody” of both agencies for the purpose of establishing their obligation to provide him with medical care for his serious medical needs. . Some of the Sixth Circuit cases analyzing whether qualified immunity applies in a given case impose a third requirement: ""whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” REDACTED quoting in part Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999)(en banc). To the extent such a showing is required, the Court concludes that the egregious conduct surrounding the events at issue and the wealth of information available that would have alerted the officers as to Owensby's condition constitute ""sufficient facts” to indicate the officers' conduct was ""objectively unreasonable in light of the clearly established constitutional rights”. Williams, 186 F.3d at 691. . The Plaintiff does not appear to contend, in its motion, that the ""Use of Force” provisions themselves are facially unconstitutional. . It is also necessary that the actions of one of the individual Cincinnati Defendants in this case rose to the level of a constitutional violation" | [
{
"docid": "22926863",
"title": "",
"text": "or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity involves a three-step inquiry. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc) (citing Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir.1996)); see also Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). For a right to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). “Although it need not be the case that ‘the very action in question has been previously held unlawful, ... in the light of pre-existing law the unlawfulness must be apparent.’ ” Id. (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034). As the Supreme Court noted in Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2516-17, 153 L.Ed.2d 666 (2002), an action’s unlawfulness can be apparent from direct holdings, from specific examples described as prohibited, or from the general reasoning that a court employs. A. The Terry Stop Feathers alleges that the officers’ initial Terry stop violated his Fourth Amendment rights. Specifically, Feathers claims that the officers lacked the necessary reasonable suspicion when, immediately upon arriving at Feathers’s residence, they performed an investigative stop and search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), by ordering Feathers to come to the near side of"
}
]
| [
{
"docid": "14552403",
"title": "",
"text": "Officers’ conduct violated both the Fourth Amendment and the Fourteenth Amendment. (Doc. 1 at ¶ 2.) In the context of the right to be free from excessive force, however, the Sixth Circuit applies a Fourth Amendment seizure analysis to the claims. See Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606 n. 4 (6th Cir.2006) (citing Ciminillo v. Streicher, 434 F.3d 461, 465-66 (6th Cir.2006)). . The Sixth Circuit has broken the two-prong Saucier test for qualified immunity into three-prongs: First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence \"to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc) (citing Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir.1996))). As the Sixth Circuit explained in Sample v. Bailey, 409 F.3d 689, 696 n. 3 (6th Cir.2005), the first two steps mirror the two prongs of the Saucier test, and the third prong acknowledges the reasonableness requirement that is implicit in the clearly established prong as explained in Saucier. Judge Moore clearly prefers the three-prong approach. Myers v. Potter, 422 F.3d 347, 358-59 (6th Cir.2005) (Moore, J., concurring). Other panels have held that the three-step test is correct, but unnecessary in most cases, because \"[i]n many factual contexts ... the fact that a right is 'clearly established' sufficiently implies that its violation is objectively unreasonable.” Causey v. City of Bay City, 442 F.3d 524, 528 n. 2 (6th Cir.2006). In this case, the Court finds that the latter approach is sufficient. The reasonableness of the Officers' conduct is discussed below in connection with the second prong of the Saucier test. . As the Officers point out, Michaels was convicted in the juvenile"
},
{
"docid": "22851449",
"title": "",
"text": "Memorandum without any evidence to support the assertion. The Memorandum, though arguably discriminatory, was only memorializing prior and limited instructions, made to four or five officers under his command on an afternoon shift. There is no evidence whatsoever, that after becoming Chief of Police, DeWeese renewed these instructions or that they motivated the conduct of the officers, who were not on the afternoon shift, years later. In sum, we hold that the DeWeese Memorandum did not constitute official city policy and therefore affirm the district court’s grant of summary judgment in favor of the City of Eastpointe. 3. Qualified Immunity Defense “A government official who performs discretionary functions is entitled to qualified immunity from civil suits for damages arising out of the performance of his official duties unless his alleged conduct violated clearly established constitutional rights of which a reasonable person would have known.” Christophel v. Kukulinsky, 61 F.3d 479, 484 (6th Cir.1995). In Feathers v. Aey, this Court wrote: Qualified immunity involves a three-step inquiry. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). The claimant must prove all three requirements or the officials are entitled to qualified immunity. We address qualified immunity in the context of each of the individual claims. III. A. Incident # 1, August 6, 1995 Incident # 1 occurred on August 6,1995, and involved plaintiff Weaver, his friend, non-plaintiff Clark, and defendant-Officers Edward Lulko and Eric Reiser. Incident # 1 consisted of two separate encounters. The parties, as in each incident, proffer quite different versions of the events.' The plaintiffs assert that Weaver and Clark were on their way"
},
{
"docid": "2118766",
"title": "",
"text": "would have understood that his behavior violated that right; and the third inquiry is “whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights.” Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.2002) (citing Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). The first step in the qualified immunity analysis involves a determination of whether Tucker has shown a violation of a constitutionally-protected right. Assuming that “a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable.” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). “If the officer’s mistake as to what the law requires is reasonable, ... the officer is entitled to the immunity defense.” Id. at 205, 121 S.Ct. 2151. Given that qualified immunity is an affirmative defense, “the defendants bear the burden of showing that the challenged act was objectively reasonable in light of the law existing at that time.” Harlow, 457 U.S. at 815, 102 S.Ct. 2727. Tucker alleges that the individual defendants unconstitutionally retaliated against him for distributing the flyers alleging official corruption, which were protected under the First Amendment. The elements of a First Amendment retaliation claim are as follows: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) there is a causal connection between elements one and two — that is, the adverse action was motivated at least in part by the plaintiffs protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394"
},
{
"docid": "22851450",
"title": "",
"text": "the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). The claimant must prove all three requirements or the officials are entitled to qualified immunity. We address qualified immunity in the context of each of the individual claims. III. A. Incident # 1, August 6, 1995 Incident # 1 occurred on August 6,1995, and involved plaintiff Weaver, his friend, non-plaintiff Clark, and defendant-Officers Edward Lulko and Eric Reiser. Incident # 1 consisted of two separate encounters. The parties, as in each incident, proffer quite different versions of the events.' The plaintiffs assert that Weaver and Clark were on their way to the home of Clark’s friend near the intersection of Nine Mile and Gratiot Roads, and intended to reclaim one of Clark’s old bicycles, which the friend had borrowed. Weaver asserts that he and Clark were peddling at a normal speed through a public parking lot when they were pulled over by the defendants. The officers claim to have first observed two bicycle riders proceeding slowly through a residential street “from house to house ... onto sidewalks ... up driveway approaches ... [and] looking into yards.” The officers claim to have found the behavior suggestive of either criminal activity or that the riders were lost. The officers claim that they drove up alongside the riders, rolled down the window, and engaged in conversation. The officers asked Weaver and Clark what they were doing, and the plaintiffs stated that they were en route to a friend’s house to pick up Clark’s other bike. According to the defendants, Weaver provided his name, told the officers he was looking for a friend’s home, and the contact was terminated."
},
{
"docid": "14528488",
"title": "",
"text": "constitutional right is clearly established at the time of the actions in question, we “look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits.” Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir.1994). A court need not have held that the very action in question is unlawful if, in light of pre-existing law, the unlawfulness is apparent. See Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir.1996). As we have recently observed: Qualified immunity involves a three-step inquiry. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). As noted above, the first step of the inquiry is met for Sallier’s claims involving mail from the courts and counsel: the facts viewed in the light most favorable to him show that a constitutional violation occurred. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (“In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry.”) The second step of the inquiry is whether the violation, when it occurred, involved a clearly established constitutional right. All of Sallier’s claims in this case occurred on or before February 5,"
},
{
"docid": "20520144",
"title": "",
"text": "that House did not act unreasonably. See Burdine v. Sandusky Cnty., 524 Fed.Appx. 164, 171 (6th Cir.2013). Section 2744.03 of the Ohio Revised Code immunizes employees of a political subdivision from civil liability for injuries allegedly caused by conduct undertaken in connection with governmental functions unless the “employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities” or the “employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev.Code § 2744.03(A)(6). Cass does not assert that House acted outside the scope of his employment and, having failed to demonstrate that House’s conduct was objectively unreasonable, he cannot demonstrate that House acted with, malicious purpose, in bad faith, or in a wanton or reckless manner. See Chappell v. City of Cleveland, 585 F.3d 901, 916 n. 3 (6th Cir.2009). III. For the foregoing reasons, we affirm. . There is a dispute as to whether the vehicle accelerated directly at House, or whether the driver turned the wheel left and accelerated at St. Clair. Regardless, the vehicle hit both officers. . Cass did not specify whether the claim was brought against House in his individual or official capacity. House did not object on that basis and there is no question that House had \"sufficient notice” that he was being sued in his individual capacity, Moore v. City of Harriman, 272 F.3d 769, 773 (6th Cir.2001) (en banc), particularly since he asserted a qualified immunity defense, Shepherd v. Well-man, 313 F.3d 963, 968 (6th Cir.2002). . This court has at times applied a third step in its qualified immunity analysis. A court must determine \"whether the plaintiff has offered sufficient evidence 'to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.’ ” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999)). In the instant case, this objective reasonableness test collapses into the Fourth Amendment inquiry."
},
{
"docid": "8068031",
"title": "",
"text": "reasonable manner, and in such manner so as to prevent the violation of the civil and constitutional rights of those being investigated. The failure to seek scientific evidence and to make any inquiry whatsoever of any medical or scientific experts violated Dr. Higgason’s civil rights under the Fourteenth Amendment to the United States Constitution in that it deprived him of his liberty without due process of law, in that no reasonable grounds existed for his arrest or incarceration, and no reasonable person in Benningfield’s position would have believed there to be such grounds. (J.A. at 29-30.) Basically, Plaintiffs due process allegations come down to a claim he was indicted without probable cause. Qualified immunity grants government officials engaged in discretionary activities immunity from individual liability for civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Court applies a three-part test when determining whether a government official is entitled to the affirmative defense of qualified immunity. See Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc). The first inquiry is whether the Plaintiff has shown a violation of a constitutionally protected right; the second inquiry is whether that right was clearly established at the tiiqe such that a reasonable official would have understood that his behavior violated that right; and the third inquiry is “whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights.” Id. “In inquiring whether a constitutional right is clearly established, we must look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.” Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir.1993) (citation and internal quotation marks omitted). Here, when applying the three-part test to the facts of this case, Plaintiffs case is barred by the affirmative defense"
},
{
"docid": "23402981",
"title": "",
"text": "possible “kidney infection” and “odor from urine,” Dr. Bo-duch ordered a urinalysis, but failed to follow up or confirm that the test had been done. We believe that these allegations, conceded as true for the purposes of this appeal, are sufficient to establish that Dr. Boduch had knowledge of Phillips’s serious need for medical attention and disregarded that need. To the extent that Dr. Boduch now disputes those facts and contends that his actions were reasonable, we lack jurisdiction to hear those arguments on an interlocutory appeal. See Williams, 186 F.3d at 690. B. Was the Law Clearly Established? “For a right to be clearly established, ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir.1992)) (alteration in original). At the time of Phillips’s death, she was entitled to medical attention under the Fourteenth Amendment. In Estate of Carter, this Court recognized that “[a]s early as 1972, this court stated “where the circumstances are clearly sufficient to indicate the need of medical attention for injury or illness, the denial of such aid constitutes the deprivation of constitutional due process.’ ” 408 F.3d at 313 (quoting Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir.1972)); see also Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 604 (6th Cir.2005) (“[T]he Fourteenth Amendment right of pretrial detainees to adequate medical care is, and has long been, clearly established.”). To make this right absolutely apparent, “in 1992, this Court explicitly held that a pretrial detainee’s right to medical treatment for a serious medical need has been established since at least 1987.” Estate of Carter, 408 F.3d at 313 (citing Heflin v. Stewart County, 958 F.2d 709, 717 (6th Cir.1992)). IV. CONCLUSION For the aforementioned reasons, we AFFIRM the denial of qualified immunity to the correctional officers, Tipton, and Dr. Boduch, REVERSE the denial of qualified immunity to Yager, Haggard, Wright, and Rose, and REMAND this case for"
},
{
"docid": "2118765",
"title": "",
"text": "defendants were not entitled to qualified immunity and that the City was not entitled to dismissal. This interlocutory appeal followed. II. A. INDIVIDUAL DEFENDANTS’ APPEAL The sole question presented in the individual defendants’ interlocutory appeal is whether the district court erred in ruling that they were not entitled to qualified immunity. We review de novo the district court’s denial of a defendant’s motion for summary judgment on qualified immunity grounds. Vakilian v. Shaw, 335 F.3d 509, 515 (6th Cir.2003). The doctrine of qualified immunity protects government officials who perform discretionary functions from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). In determining whether qualified immunity is warranted, we employ a three-part test: The first inquiry is whether the Plaintiff .has shown a violation of a constitutionally protected right; the second inquiry is whether that right was clearly established at the time such that a reasonable official would have understood that his behavior violated that right; and the third inquiry is “whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights.” Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.2002) (citing Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). The first step in the qualified immunity analysis involves a determination of whether Tucker has shown a violation of a constitutionally-protected right. Assuming that “a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable.” Saucier v. Katz, 533 U.S. 194, 201,"
},
{
"docid": "14552402",
"title": "",
"text": "Ex. A); (2) the affidavit of Matthew Mi-chaels (Doc. 28-3); (3) the affidavit of Sherrie Latessa (Doc. 28-2); and (4) nine photographs described in both Plaintiffs' affidavits as photographs taken by the supervisor of the juvenile detention home depicting Michaels' injuries as a result of being tased by Officer Grassnig (Docs.28-2-3). Notably, both Plaintiffs state in their affidavits that \"these events are contained in the police report of Officer Grassnig of which a true and accurate copy is attached hereto as Exhibit A.” (Doc. 28-2 at ¶ 13; Doc. 28-3 at ¶ 14.) Nevertheless, there is a definite difference between the parties' views of how much and under what circumstances the Officers tased Michaels. . Moreover, the Defendants' supplemental response includes little by way of information or useful explanation of the facts in this case. Although the Defendants purport to submit a \"Taser Usage Log” as an exhibit to the supplemental response, the log is confusing on its face and is not useful without some expert explanation of its contents. . Plaintiffs allege that the Officers’ conduct violated both the Fourth Amendment and the Fourteenth Amendment. (Doc. 1 at ¶ 2.) In the context of the right to be free from excessive force, however, the Sixth Circuit applies a Fourth Amendment seizure analysis to the claims. See Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606 n. 4 (6th Cir.2006) (citing Ciminillo v. Streicher, 434 F.3d 461, 465-66 (6th Cir.2006)). . The Sixth Circuit has broken the two-prong Saucier test for qualified immunity into three-prongs: First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence \"to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th"
},
{
"docid": "8068032",
"title": "",
"text": "to the affirmative defense of qualified immunity. See Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc). The first inquiry is whether the Plaintiff has shown a violation of a constitutionally protected right; the second inquiry is whether that right was clearly established at the tiiqe such that a reasonable official would have understood that his behavior violated that right; and the third inquiry is “whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights.” Id. “In inquiring whether a constitutional right is clearly established, we must look first to decisions of the Supreme Court, then to decisions of this court and other courts within our circuit, and finally to decisions of other circuits.” Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir.1993) (citation and internal quotation marks omitted). Here, when applying the three-part test to the facts of this case, Plaintiffs case is barred by the affirmative defense of qualified immunity at the inception inasmuch as Plaintiff has failed to show a violation of a constitutionally protected right. See Williams, 186 F.3d at 691. As noted, Plaintiffs due process allegation comes down to a claim he was indicted without probable cause. However, it has long been settled that “the finding of an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the existence of probable cause for the purpose of holding the accused to answer.” See Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 77 L.Ed. 283 (1932). Therefore, because Plaintiff was indicted pursuant to a determination made by the grand jury, he has no basis for his constitutional claim. See id. Accordingly, we affirm the district court’s dismissal of Plaintiffs claims against Benningfield and Rose, albeit for reasons different than those of the district court. See City Management Corp. v. U.S. Chemical Co., Inc., 43 F.3d 244, 251 (6th Cir.1994). C. Plaintiff’s § 1983 Claim Against Bertram for Violation of Plaintiffs Fourteenth Amendment Right to"
},
{
"docid": "10808006",
"title": "",
"text": "based on their discretionary acts. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (holding that “government officials performing discretionary functions generally are shielded from liability for civil damages”). In so doing, the doctrine gives state actors the freedom to perform their official duties without fear that even a slight misstep will trigger their financial ruin. Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (“Accordingly, we have recognized qualified immunity for government officials where it was necessary to preserve their ability to serve the public good or to ensure that talented candidates were not deterred by the threat of damages suits from entering public service.”). But state actors lose this immunity when they violate clearly established constitutional rights of which a reasonable person should have known. Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (holding that qualified immunity shields state actors only “insofar as them conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). The doctrine thus offers no solace to “the plainly incompetent or those who .knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The United States Court of Appeals for the Sixth Circuit has set forth a three-step process for evaluating claims of qualified immunity: First, we determine whether a constitutional violation has occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc) (quotations omitted) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996). Thus, in analyzing Wright’s § 1983 claim, the Court looks first to whether Wright offers sufficient evidence of a"
},
{
"docid": "23434126",
"title": "",
"text": "The Sixth Circuit, en banc, has re- cenlly defined the components of the qualified immunity defense: Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known. The procedure for evaluating claims of qualified immunity is tripartite: First, we determine whether a constitutional violation has occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc) (quotations omitted; brackets added) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996)). The insulation from federal civil rights litigation bestowed upon state governmental personnel by qualified immunity sweeps broadly, affording them \" 'ample room for mistaken judgments' by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Sova v. City of Mt. Pleasant, 142 F.3d 898, 902 (6th Cir.1998) (quoting Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)). See also Megenity v. Stenger, 27 F.3d 1120, 1124 (6th Cir.1994) (\"If we conclude that a reasonable public official would not have been aware that he was committing a [federal civil rights] violation, we then afford immunity.”) (brackets added). .The Anderson Court explained: As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). . All legal conclusions by lower courts, including those"
},
{
"docid": "19991492",
"title": "",
"text": "the envelope contain “an indication that the person is an attorney,” then envelopes that do contain the phrase “attorney/client” must meet the regulation’s requirement. 20 C.F.R. § 540.19(b). We therefore hold that the district court did not err in finding that envelopes 13, 14, 17, 18, 21, 24, 30, 31, and 33 were properly labeled legal mail. B. Having first narrowed the claims at issue, we now turn to the question of whether qualified immunity shields any or all of the defendants. Sallier, 343 F.3d at 878. “Government officials who perform discretionary functions are generally protected from liability for civil damages as long as their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Id. at 878 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Because such a decision involves solely a question of law, we review a district court’s ruling granting or denying qualified immunity de novo. Thomas v. Cohen, 304 F.3d 563, 568 (6th Cir.2002). We have reemphasized the proper analysis to undertake when considering the question of whether qualified immunity applies: Qualified immunity involves a three-step inquiry. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). Following the Supreme Court’s recent decision in Pearson v. Callahan, — U.S. -,-, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009), this order of inquiry is no longer mandatory. We, however, find the traditional order appropriate in this case and will move first to consider whether Merriweather has established that the defendants’ violated a clearly established"
},
{
"docid": "10808007",
"title": "",
"text": "doctrine thus offers no solace to “the plainly incompetent or those who .knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The United States Court of Appeals for the Sixth Circuit has set forth a three-step process for evaluating claims of qualified immunity: First, we determine whether a constitutional violation has occurred; second, we determine whether the right that was violated was a clearly established right of which a reasonable person would have known; finally, we determine whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc) (quotations omitted) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); Dickerson v. McClellan, 101 F.3d 1151, 1157-58 (6th Cir.1996). Thus, in analyzing Wright’s § 1983 claim, the Court looks first to whether Wright offers sufficient evidence of a constitutional violation. Wright says Jackson and Vinesky violated the Fourth Amendment by subjecting him to excessive force. Wright offers sufficient evidence of such a violation. The Fourth Amendment’s prohibition of unreasonable seizures limits the amount of force police officers may use during an arrest. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, officers may use only the degree of force necessary to effect an arrest. Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir.1997). In assessing a particular use of force, the Court will not second-guess an officer’s judgment from the comfort of chambers. Rather, the Court asks whether a reasonable officer on the scene would have employed a similar degree of force. Smith v. Freland, 954 F.2d 343, 345-47 (6th Cir.1992); Monday, 118 F.3d at 1104. In so doing, the Court remains mindful that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the"
},
{
"docid": "23668303",
"title": "",
"text": "“broad range of reasonable professional judgment” accorded under the doctrine of qualified immunity. Id. at 1107. Defendants wrongly believed that probable cause supported the warrant, but their mistake was not so unreasonable as to deny them qualified immunity. That a court later declared the search unconstitutional matters not because officials are “ ‘entitled to qualified immunity [when] their decision was reasonable, even if mistaken.’ ” Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995) (alteration and emphasis in original) (quoting Castro v. United States, 34 F.3d 106, 112 (2d Cir.1994)); see Anderson, 483 U.S. at 641, 107 S.Ct. 3034 (noting that law enforcement officials who reasonably but mistakenly conclude that probable cause is present are entitled to immunity). Because the officers exercised reasonable professional judgment in applying for the warrant and because reasonable officers in Defendants’ position might have believed that the warrant should have issued, we cannot say that Defendants violated a clearly established right by conducting the search of Plaintiffs’ business. III. We reverse the district court’s denial of Defendants’ motion for summary judgment on qualified immunity grounds and remand with instructions to enter summary judgment for Defendants. . The spelling varies throughout the record. Variations include “Cad Visions,” \"CadVisions,” and \"CAD Visions.” . Originally, seven members of the Armstrong family were named plaintiffs. By Stipulation and Order, four individuals were dismissed from the action and only Carl, his wife Donna, and his mother Jean (who holds title to the building) now remain as parties to the case. . Panels of this court occasionally have added a third step to the inquiry: \"whether the plaintiff has offered sufficient evidence ‘to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.’ \" Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc)); see also Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir.2004). This third inquiry \"may in some cases increase the clarity of the proper analysis. In many factual contexts, however, ... the"
},
{
"docid": "2369300",
"title": "",
"text": "civil damages as long as their conduct does not violate ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Sallier v. Brooks, 343 F.3d 868, 878 (6th Cir.2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Because such a decision involves solely a question of law, we review the district court’s denial of qualified immunity de novo. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir.2005). We have developed a three-step analysis for reviewing district court decisions on qualified immunity. See Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003). First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiff show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Id. (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). Although we are not bound to follow the sequence of this inquiry, see Pearson v. Callahan, — U.S. -, -, 129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009), we believe that this case would benefit from the traditional sequence outlined in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), and Feathers. Because of the nature of the constitutional right at issue, “there would be little if any conservation of judicial resources to be had by beginning and ending with a discussion of the ‘clearly established’ prong” because it would be “difficult to decide whether a right is clearly established without deciding precisely what the constitutional right happens to be.” Pearson, 129 S.Ct. at 818 (quoting Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir.2005)). Therefore, we first address whether Holzemer’s conversation with Peete constitutes constitutionally protected petitioning, and, finding that it is, we then examine whether that right was clearly established at the"
},
{
"docid": "48132",
"title": "",
"text": "denial of qualified immunity in an action brought under 42 U.S.C. § 1983 de novo. Klein v. Long, 275 F.3d 544, 550 (6th Cir.2001). “[F]or an interlocutory appeal to be appropriate, a defendant seeking qualified immunity must be willing to concede to the facts as alleged by the plaintiff and discuss only the legal issues raised by the case.” Shehee v. Luttrell, 199 F.3d 295, 299 (6th Cir.1999). We will therefore accept Scicluna’s allegations as true for purposes of this interlocutory appeal and view all facts and reasonable inferences in the light most favorable to him. B. Doctrine of qualified immunity The doctrine of qualified immunity shields from liability for civil damages those officials whose “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). We evaluate a defendant’s claim of qualified immunity by determining whether (1) a constitutional violation occurred, (2) the right violated was clearly established, and (3) “the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc). Scicluna contends that the defendants violated a clearly established constitutional right when they showed deliberate indifference to his serious medical and safety needs. Such conduct is prohibited by the Cruel and Unusual Punishment Clause of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To show that he was subjected to such deliberate indifference, Scicluna need not prove that the defendants had the “express intent to inflict unnecessary pain,” but only that their conduct demonstrated a level of “obduracy and wantonness” greater than simple “inadvertence or error in good faith....” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). C. Carrizales’s motion Scicluna testified in his deposition that he told Carrizales of the conflict situation with O’Sullivan and of the relevant MDOC"
},
{
"docid": "323037",
"title": "",
"text": "in this case. II. Government officials “performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); see Scott v. Clay County, Tenn., 205 F.3d 867, 873 n. 9 (6th Cir.2000) (finding that public employees are entitled to qualified immunity when engaged in discretionary functions). In determining whether a government official is entitled to qualified immunity, the Court applies a three-part test. Higgason v. Stephens, 288 F.3d 868, 876 (6th Cir.2002); Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc). First, the plaintiff must show a violation of a constitutionally protected right. Higgason, 288 F.3d at 876. “The second inquiry is whether that right was clearly established at the time such that a reasonable official would have understood that his behavior violated that right.” Ibid. Finally, the Court must determine “whether the plaintiff has alleged sufficient facts, and supported the allegations by sufficient evidence, to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established rights.” Williams, 186 F.3d at 691. In this case, the plaintiff has shown, and the Court has determined, that the defendants violated the plaintiff’s constitutionally protected rights. The inquiry, therefore, is whether the plaintiffs rights were clearly established at the time of the violation under an objective standard. For a constitutional right to be clearly established, “the law must be clear in regard to the official’s particular actions in the particular situation.” Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.), cert. denied, 502 U.S. 863, 112 S.Ct. 187, 116 L.Ed.2d 148 (1991); see also Walton v. City of Southfield, 995 F.2d 1331, 1335 (6th Cir.1993). This requires that [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question"
},
{
"docid": "19991493",
"title": "",
"text": "have reemphasized the proper analysis to undertake when considering the question of whether qualified immunity applies: Qualified immunity involves a three-step inquiry. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence “to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003) (quoting Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc)). Following the Supreme Court’s recent decision in Pearson v. Callahan, — U.S. -,-, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009), this order of inquiry is no longer mandatory. We, however, find the traditional order appropriate in this case and will move first to consider whether Merriweather has established that the defendants’ violated a clearly established constitutional right. See id. (noting that the traditional order of inquiry “is often appropriate”); see also Lyons v. Xenia, 417 F.3d 565, 581 (6th Cir.2005) (Sutton, J., concurring) (“[I]t often may be difficult to decide whether a right is clearly established without [first] deciding precisely what the constitutional right happens to be.”) When analyzing whether a constitutional right was clearly established at the time of the events in question we “must look first to decisions of the Supreme Court, then to decisions of this Court and other courts within our circuit, and finally to decisions of other circuits.” Buckner v. Kilgore, 36 F.3d 536, 539 (6th Cir.1994) (citation omitted). 1. Merriweather claims that the defendants’ actions violated his rights under the First, Fifth, and Sixth Amendments. The defendants argue that Merriweather’s suit attacks the validity of the BOP special-mail regulation itself and that this court, as well as the Supreme Court, has expressly approved the policy at issue. The defendants reason that because they strictly followed BOP policy as to the requirements for legal mail,"
}
]
|
106806 | not required to search the record for errors that may be lurking among the labyrinths of voluminous records. This is a task that is imposed upon the complaining parties and their attorneys. If they do not perform it, the court is justified in assuming that no errors have been made. We said in Williamsburg Drapery Co. v. United States, 369 F.2d 729, 732, 177 Ct.Cl. 776, 781-782 (1966): * * * The court has often said that contractors should be specific in challenging the findings of a board, and that the court cannot be expected to plough through a record for itself without adequate record references and sufficiently detailed challenges to the administrative findings. * * * Again, in REDACTED we said: * * * [T]he plaintiff has the burden of establishing the fact that the record does not support the Board’s finding. This it has failed to do. It is not the court’s function to supply this deficiency by an independent excursion along the administrative trial. * * * [Cases omitted.] Nevertheless, we have waded through the many pages of allegations, accusations and verbose ramblings which constitute Maxwell’s and Algonac’s pleadings and briefs, and from all this have compiled a list summarizing what appear to be the claims that are presented to the court. They are as follows: 1. Torts have been committed by defendant against Maxwell and plaintiff Algonac Manufacturing Company. 2. The payment of | [
{
"docid": "23105393",
"title": "",
"text": "of fact.” Jeferson Constr. Co. v. United, States, 177 Ct. Cl. 581, 589, 368 F.2d 247, 252 (1966). Its references to the record are insubstantial and cannot form the predicate for overturning the Board’s finding that the plaintiff has already been compensated for the sum claimed. The plaintiff, however, seeks to cast the responsibility on the defendant’s shoulder for factually supporting the Board’s decision. It asserts that the record before the Board contains absolutely no evidence that the G&A costs were either billed as direct costs or were reimbursed as direct costs. Further, the plaintiff asserts that the action by the defendant is contrary to generally accepted accounting practices and to the plaintiff’s application of such practices in its own bookkeeping. It is true that neither of the parties has pointed out the precise mechanics of the mathematical computations involved so that it may be determined whether the disputed finding was supported by substantial evidence. The entire administrative record is before us, however, and the plaintiff has the burden of establishing the fact that the record does not support the Board’s finding. This it has failed to do. It is not the court’s function to supply this deficiency by an independent excursion along the administrative trail. See Jefferson Constr. Co. v. United States, supra, at 589; Jefferson Constr. Co. of Florida v. United States, 176 Ct. Cl. 1368, 1369, 364 F.2d 420, 424 (1966), cert. denied, 386 U.S. 914 (1967); Midwest Spray & Coating Co. v. United States, 176 Ct. Cl. 1331, 1338 (1966). That the determination of this claim should not be disturbed is reinforced by the contract provisions themselves. 10. TERMINATION (b) After receipt of a Notice of Termination and except as otherwise directed by the Contracting Officer, the Contractor shall * * * (5) with the approval or ratification of the Contracting Officer, to the extent he may require, which approval or ratification shall be final and conclusive for all purposes of this clause, settle all outstanding liabilities and all claims arising ont of such, termination of orders and subcontracts, the cost of which would be reimbursable,"
}
]
| [
{
"docid": "15644048",
"title": "",
"text": "the slide made grubbing unnecessary.” This determination is supported by substantial evidence. It was no longer necessary for the timber to be felled. Defendant’s project engineer on the job testified that the timber could have been dragged from the slide material, but often even this was not done. Instead, the slide material was merely pushed off the road into a gully. Certain photographs in the record lend credence to this testimony. Since plaintiff was very rarely on the job, the only first-hand evidence in the record to support plaintiff’s claim consists of affidavits of two of plaintiff’s employees. Given this record, we can only conclude that substantial evidence supports the Board’s factual determination. Williamsburg Drapery Co. v. United States, 177 Ct. Cl. 776, 783, 369 F. 2d 729, 733 (1966); Carlo Bianchi & Co. v. United States, 167 Ct. Cl. 364, 374 (1964), cert. denied, 382 U.S. 841 (1965). Moreover, plaintiff’s claim is fatally deficient for yet another reason. In seeking damages resulting from numerous landslides, plaintiff is obviously claiming additional compensation in the nature of an equitable adjustment under the “Changed Conditions” provision of the contract. This provision of the contract reads as follows: 4. Changed Conditions The Contractor shall promptly, and before such conditions are disturbed, notify the Contracting Officer in writing of: (1) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (2) unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this contract. The Contracting Officer shall promptly investigate the conditions, and if he finds that such conditions do so materially differ and cause an increase or decrease in the cost of, or the time required for, performance of this contract, an equitable adjustment shall be made and the contract modified in writing accordingly. * * * If the parties fail to agree upon the adjustment to be made, the dispute shall be determined as provided in Clause 6 hereof. [Clause 6 dealt with “Disputes.”] It is plain"
},
{
"docid": "5025650",
"title": "",
"text": "to the contract cost, citing a number of reasons. Both requests were denied. On April 26, 1967, defendant indicated to plaintiff that the work was complete. Plaintiff submitted an account showing it had expended $102,873.12, had been paid $70,576, and that $32,297.18 was due and unpaid. Plaintiff’s claim before the Board of Contract Appeals for HEW, which was denied, was reduced to $21,478, and plaintiff now sues in this court for that amount. Plaintiff has moved for summary judgment on the grounds: (1) that the Board erred in holding that the parties entered into a fixed price contract, with a maximum cost, rather than a cost reimbursement contract, and (2) that the Board’s decision is arbitrary, capricious, and not supported by substantial evidence. Plaintiff’s motion and brief are wholly insufficient to sustain either of its allegations. In attacking the sufficiency of the findings made by the Board, plaintiff has misconceived the function of this court in cases reviewed pursuant to the Wunderlich Act, because plaintiff has asked the court to “review the complete record of the administrative proceedings concerning this issue which, in turn, shall prove self-evident of the fact that the Board of Contract Appeals clearly disregarded the true intention, of the parties * * It is not the task of this court to research the administrative record in order to sustain such unsupported allegations. As we have said before: * * * The entire administrative record is before us, however, and the plaintiff has the burden of establishing the fact that the record does not support the Board’s finding. This it has failed to do. It is not the court’s function to supply this deficiency by an independent excursion along the administrative trail. Sundstrand Turbo v. United States, 182 Ct. Cl. 31, 60, 389 F. 2d 406, 422-23 (1968). Looking to the record before us, we find that plaintiff has called our attention to only two facts in support of its motion: (1) the agreement was headed “Cost Reimbursement Contract,” and (2) an audit report by- the Government refers to the agreement as a cost-plus-fixed-fee contract. Certainly, without"
},
{
"docid": "22357886",
"title": "",
"text": "and their attorneys. If they do not perform it, the court is justified in assuming that no errors have been made. We said in Williamsburg Drapery Co. v. United States, 177 Ct. Cl. 776, 781-82, 369 F. 2d 729, 732 (1966) : * * * The court has often said that contractors should be specific in challenging the findings of a board, and that the court cannot be expected to plough through a record for itself without adequate record references and sufficiently detailed challenges to the administrative findings. * * * Again, in Sundstrand Turbo v. United States, 182 Ct. Cl. 31, 60, 389 F. 2d 406, 422-23 (1968), we said: * * * [T]be plaintiff has the burden of establishing the fact that the record does not support the Board’s finding. This it has failed to do. It is not the court’s function to supply this deficiency by an independent excursion along the administrative trail. * * * [Cases omitted.] Nevertheless, we have waded through the many pages of allegations, accusations and verbose ramblings which constitute Maxwell’s and Algonac’s pleadings and briefs, and from all this have compiled a list summarizing what appear to be the claims that are presented to the court. They are as follows: 1. Torts have been committed by defendant against Maxwell and plaintiff Algonac Manufacturing Company. 2. The payment of plaintiff’s award to the IES by the Army was unauthorized and the award should now be paid to plaintiff. 3. A decision of the Eenegotiation Board should be overturned. 4. A district court judgment against Algonac should not be allowed as a set-off against any recovery in this case. 5. The decision of the ASB’CA on the eight contracts is ■wrong and should be overturned by the court. 6. Plaintiff is entitled to storage charges and a balance due in connection with the “ninth contract.” We will discuss these claims, along with the defenses pleaded by the government, in the order they are set out above. But, at the outset, we must decide the threshold question pertaining to the government’s affirmative defense that Maxwell"
},
{
"docid": "7760808",
"title": "",
"text": "he has been damaged in the sum of $7,904.70 in connection with the 1968,1970, and 1971 Feed Grain Programs. He asks for judgment against the United States for the amount already set off by the Department of Agriculture and that the United States be enjoined from setting off further monies due plaintiff. Pie also seeks judgment for $7,670.74 denied him under the 1969 Feed Grain Program. The defendant has moved for summary judgment. The plaintiff alleged in his petition that the defendant violated Department of Agriculture Regulations sections 775.418, 775.419(a)(2), 775.419(b) or 775.418, 775.403, 775.416, and 775.425. However, this is a general allegation, and a conclusion that is not supported by any facts pleaded by plaintiff nor specifically pointed out in his brief. In other words, the plaintiff has not specified nor shown how any regulation was violated by the defendant. The plaintiff clearly has this burden in his attack on the administrative decisions in this case. See Sundstrand Turbo v. United States, 182 Ct. Cl. 31, 389 F. 2d 406 (1968) ; Williamsburg Drapery Co. v. United States, 177 Ct. Cl. 776, 369 F. 2d 729 (1966) ; and Jeferson Construction Co. v. United States, 177 Ct. Cl. 581, 368 F. 2d 247 (1966). The plaintiff has failed to meet this burden. His general allegation of noncompliance cannot overcome the strong presumption that Government officials acted properly and faithfully discharged their duties and that the regulations and procedures involved were properly observed and carried out. Cooper v. United States, 203 Ct. Cl. 300 (1973) ; Bethlehem Steel Corp. v. United States, 191 Ct. Cl. 141, 423 F. 2d 300 (1970); and Biddle v. United States, 186 Ct. Cl. 87, 104 (1968). Furthermore, it appears from the record in this case that the regulations and procedures were properly followed and complied with. The plaintiff says that a summary judgment should not be granted in this case because there are unresolved questions of fact, but he does not specify what they are nor point to them in the administrative record. He attempts to sustain this contention by denying that he violated"
},
{
"docid": "18271362",
"title": "",
"text": "acting as the prime contractor’s employee. Nevertheless, the court found no injury from the prohibited assignment since the owners received the work called for and permitted the prime contractor to sue on behalf of the assignee whom the owners had rejected. The rationale for this result was: “It is therefore apparent that defendants have not been injured by the fact that performance was done by Wiseman under an assignment found by the court to be invalid... . Since (defendants) have not been injured and have what they expected to get, they cannot now be heard to complain.” (285 P., at 1084) The pleadings contain no claim of damage by PRWRA from any cause. Insofar as shown by the record, the Aguirre Project was built in accordance with the requirements of the Prime Contract and was accepted by PRWRA. If PRWRA suffered any damage, it had the burden of pleading and proving the same. It has not done so. PRWRA also contends that Mitsui USA was controlled and dominated by Mitsui Ltd. PRWRA does not explain what consequences follow from that fact. Every parent corporation controls its wholly owned subsidiary. Such control came as no surprise to PRWRA. Mr. Colón testified that he called on Mitsui Ltd to perform certain of Mitsui USA’s contract duties because he believed and expected that a parent would control its child. He said “(w)hen a father has a son, and one calls the attention of this boy, and this boy doesn’t pay any attention, then one goes to the parent to tell him, so he will get spanked by that parent”. PRWRA points to no facts which would support a finding of alter ego or any other basis for disregarding the separate corporate entities of the two Mitsuis. In Algonac Manufacturing Co. v. United States, 428 F.2d 1241 (Ct.Cl., 1970) an individual plaintiff brought suit acting for himself and a corporation of which he was the only stockholder. Since the contracts at issue were between the corporation and the government, it was held that the stockholder was not a “proper party” plaintiff and that the"
},
{
"docid": "6257603",
"title": "",
"text": "'Skelton, Judge, delivered the opinion of the court; This case comes before the court again on plaintiffs’ motion for relief from judgment pursuant to Rule 152 (b) (3), claim ing that fraud was perpetrated upon the court by defendant which caused the court to enter a judgment against the plaintiffs. The defendant has filed an opposition to plaintiffs’ motion and requests that the motion of plaintiffs be denied. The history of this litigation was set out in our opinion in this case, Algonac Mfg. Co. v. United States, 192 Ct. Cl. 649, 428 F. 2d 1241 (1970). In that decision we held that the court did not have jurisdiction of the contract claims of John A. Maxwell, the president of plaintiff, Algonac Manufacturing Company, because the contracts involved were made by the United States with the company and not with Maxwell; and that we likewise did not have jurisdiction of Maxwell’s tort claims against the government. Accordingly, all of Maxwell’s individual claims were dismissed in that judgment. Even if he could show fraud on the part of the government in his present motion, which he has not done, this court would not have jurisdiction of his tort and contract claims, as we have no tort jurisdiction, and Maxwell had no contract in his individual capacity with the government. In our decision of July 1'5,1970, referred to above, we dismissed all of the claims of Algonac Mfg. Co., except the storage charges claimed by it in the ninth contract, and we remanded that part of the case to our trial commissioner for trial. The company refused to proceed with a trial and on a show cause order hearing advised the court it did not wish to pursue that claim further. \"Whereupon, the court dismissed that part of the case for lack of prosecution by order of May 1-8, 1971. By this action, all of the claims of plaintiffs were finally dismissed. John A. Maxwell is not an attorney. He attempted to represent Algonac Mfg. Co. in this court in the early stages of this case and filed a motion to act"
},
{
"docid": "22357877",
"title": "",
"text": "The time now has come to retaliate in kind, an eye for an eye, a tooth for a tooth, and to call the spade black, rather that [sic] slightly smuged, [sic] putting aside the language of the dilletante, [sic] and be blunt. The proper procedure would be for the court to require the attorney of record to prepare and file an amended petition that complies with the rules of the court, and, should he fail to do so, dismiss the case. However, after spending many hours trying to understand the illogical, ill-arranged and verbose petition filed by the plaintiffs in this case, the court has decided that to require a proper amended petition to be filed by the attorney at this stage would only serve to delay the case further, and the court has elected to hand down an opinion. It should be emphasized, however, that this procedure will not serve as a precedent and the court will require strict compliance with its rules in any future case where this problem arises. This controversy began in 1952 and the court feels that it should be decided and disposed of now, although it has been pending in this court only since 1967. Accordingly, we will proceed to discuss the issues in the case. Algonac Manufacturing Company will be referred to hereafter as plaintiff or Algonac. The said John A. Maxwell will be called plaintiff Maxwell or Maxwell. The Eight Terminated Contracts This first portion of plaintiff’s case centers around eight defense contracts. Plaintiff, as contractor, entered into these contracts with the Detroit Ordnance District (DOD), at a total dollar value of $1,431,226.72. The contracts were for the building of various items, such as tool boxes, cabinets and benches, and contained the standard disputes clause, and clauses for termination for default and for the convenience of the government. The contracts were terminated for default because of delays, a termination which plaintiff vigorously protested. Subsequently, the contracting officer found the delays were excusable, and extended the time limits for completion. However, on November 25,1953, the day after the extensions were granted, plaintiff was"
},
{
"docid": "23004909",
"title": "",
"text": "the various contentions raised by plaintiff before the ASBCA and rejected by it were delineated to the extent that they can be scrutinized in order to determine whether the ASBCA findings were supported by substantial evidence.” Report of Qovrmdr, p. 5. Although the defendant strongly urges us to dismiss the petition, even at the present phase of the litigation, on these same grounds urged below, we cannot say that the trial commissioner abused his discretion in proceeding to review the administrative decision on the merits. The court has often said that contractors should be specific in challenging the findings of a board, and that the court cannot be expected to plough through a record for itself without adequate record references and sufficiently detailed challenges to the administrative findings. We do not retreat one iota from that position, and we do not encourage the commissioners to gloss over too-general or inadequately supported attacks on board findings. But the rule is one of discretion and not an iron rule of law, and where a trial commissioner has exercised his discretion to overlook or excuse defects in a plaintiff’s presentation, we will not say — especially after the review on the merits has been made — that an error of law has been committed, unless that discretion was plainly abused. Conversely, where a commissioner has refused to countenance such infirmities, we will not set aside his judgment unless he acted arbitrarily. See Noonan Constr. Co. v. United States, Order of Nov. 14, 1966, post, p. 1091. In this instance, the commissioner reached the merits over objection, and his detailed views both on the procedural issues and on the merits are before us; at this stage of the case, we cannot find that he so abused his discretion as to preclude our examination of the merits. II. A. First Article Changes a/nd Approvals: Part 13(a) of the contract required that one first article had to be submitted and approved by defendant’s contracting officer before the remaining contract items could be fabricated or produced. A conference was held at the Academy during October 15-17, 1958,"
},
{
"docid": "22357884",
"title": "",
"text": "IRS to be applied on the tax indebtedness. The Department of the Army issued a directive stating that no contract funds were to be disbursed to plaintiff until its tax indebtedness was cleared up. Accordingly, on January 4,1967, the Army paid the $279,264.01 awarded to plaintiff to the IRS along with $2,539.54 due plaintiff on the ninth contract discussed below. These two payments in the total sum of $281,803.55 paid all of plaintiffs taxes, penalty and interest for 1952 and 1953, except the sum of $21,790.14 accrued interest for 1953 which was not paid. Plaintiff Maxwell and wife Rene A. Maxwell owed taxes, penalty and interest in the sum of $65,421.16 for 1951 and 1952, which was not paid. Algonac and plaintiff Maxwell filed this suit February 21, 1967, appealing from the decision of the ASBCA on the eight contracts, and including a claim for storage under the ninth contract and a balance of $2,539.54 due on such contract, together with many other claims that will be discussed below. Some of these claims directly involve the eight contracts discussed above, and some of them are at most peripheral to the contracts. The failure of the plaintiffs to retain an attorney to write their petition and briefs has made the court’s task of deciphering, setting out, analyzing and deciding these claims a most difficult one. There is no logical or systematic arrangement of the pleadings and briefs that show or present the complaints of the plaintiffs in a simple, concise and direct manner. The most that can be said of plaintiffs’ pleadings and briefs is that, taken as a whole, they seem to add up to a general statement to the court substantially as follows: We don’t like what has happened in this case and we ask you 1;o search the entire record, find the errors, correct them, and then award us a judgment. It goes without saying that a court is not required to search the record for errors that may be lurking among the labyrinths of voluminous records. This is a task that is imposed upon the complaining parties"
},
{
"docid": "22357889",
"title": "",
"text": "seek damages for unnamed torts committed by the government, which resulted in the following: 1. Ruined reputation. 2. Loss of Maxwell’s salary. 3. Loss of Maxwell’s home. 4. Losses from damages to the Algonac plant. 5. Losses from farced sale of Algonac’s equipment and machinery. 6. Loss of good will. 7. Loss of profits. This court has no original jurisdiction over tort claims, either under 28 U.S.C. § 1491 (1964) or otherwise. Numerous decisions of the Supreme Court and of this court have so held. See Schillinger v. United States, 155 U.S. 163, 167-69 (1894), and Benjamin v. United States, 172 Ct. Cl. 118, 128, 348 F. 2d 502, 510-11 (1965). Therefore, all the tort claims of Maxwell and Algonac Manufacturing Company are dismissed. Payment of the Board Award of $%79f¡61¡..01 to the Internad Revenue Service The plaintiff complains that the payment of the $279,264.01 awarded by the Board was paid to the Internal Revenue Service without authority and it should be ordered paid to the plaintiff. This and any other tax claim alleged by plaintiff must fail. The Internal Revenue Code of 1954, Section 7422(a), states: (a) No Suit Prior to Filing Claim for Refund. — No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary or his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof. Filing of a claim in accordance with this provision of the Code is jurisdictional. Pechette v. United States, 145 Ct. Cl. 189, 193 (1959). Nowhere in plaintiff’s pleadings is the filing of such a claim alleged. In addition, the government was well within its rights in paying the Board award to the IBS. “The government has the same right ‘which"
},
{
"docid": "22089019",
"title": "",
"text": "“[T]he scope of our review is narrow and limited.” (Sundstrand Turbo v. United States, 182 Ct. Cl. 31, 38, 389 F. 2d 406, 410 (1968)). “It is [limited to] whether there was substantial evidence, i.e., such evidence as might convince a reasonable man, to support the conclusion reached by the agency officials.” (T. C. Bateson Construction Co. v. United States, 149 Ct. Cl. 514, 518 (1960)). “Where two versions of the facts are equally probable, this court would normally be constrained to favor the version accepted by the ASBCA.” (Williamsturg Drapery Co. v. United States, 177 Ct. Cl. 776, 783, 369 F. 2d 729, 733 (1966); see also, Dittmore-Freimuth Corp v. United States, 182 Ct. Cl. 507, 390 F. 2d 664 (1968)). In River Construction Corp. v. United States, 159 Ct. Cl. 254 (1962) we considered this question in detail and said: Tins issue is very different from the question of whether the Appeals Board was correct. The court may well disagree with the Appeals Board decision but unless the plaintiff has shown the defects described by the Wunder-lich Act, there can be no recovery here. [Citation omitted.] Even though there may have been evidence before the Appeals Board upon which it could have based a decision in favor of the plaintiff, the decision which the board made [in favor of defendant] may still be found to have been supported by substantial evidence, when the whole record is considered. [Citations omitted.] This does not mean, of course, that the mere fact that there is some evidence to support the administrative decision is sufficient. * * * Further, the requirement that there be substantial evidence means such evidence as might convince a reasonable man to support the con- elusion reached administratively. [Citations omitted; 159 Ct. Cl. at 261.] Substantial evidence is evidence which could convince an unprejudiced mind of the truth of the facts to which the evidence is directed. Evidence may be substantial even if it is the sole evidence in a case, e.y., expert testimony. The amount of evidence, however, is not necessarily determinative, e.y., if the only evidence"
},
{
"docid": "22357894",
"title": "",
"text": "of profit, and was an arbitrary and capricious juggling of figures. 11. There is no testimony in the record to support the Board statement that it had considered a price analyst’s figures on a weighted average price. 12. Plaintiff was deprived of its records by defendant. 13. The Board improperly rejected $40,000 as part of plaintiff’s expediting costs in purchasing metals during the steel strike. 14. The Board improperly rejected plaintiff’s claim for loss of equipment. Plaintiff has failed to conform to our Eule 162(a) (formerly 95(a)) which requires: “Every petition founded on a contract containing a disputes clause shall make clear the relationship, if any, of the Wunderlich Act to the relief sought. * * *” Plaintiff made no attempt to comply with this Eule, except to say: ASBCA was in utter violation of Mr. Wunderlich’s vision of the outcome of internally constituted, self-motivated government boards that are incestuous and always self-protective to their counterparts in the selfsame government. We have again laboriously examined plaintiff’s pleadings, particularly the brief filed December 22, 1969, to. closely scrutinize this part of the case. We note that most of the Board’s conclusions on the above matters complained of by plaintiff were decisions of fact, not of law. Therefore, unless such decisions on the facts are not supported by substantial evidence, they are entitled to finality. We held in Williamsburg Drapery Co. v. United States, 177 Ct. Cl. 776, 793, 369 F. 2d 729, 739 (1966): * * * To the extent that * * * problems are decided on the basis of evidence, the ASBCA view of the evidence must be upheld if substantially supported. We conclude that the record shows that the decision of the Board was supported by substantial evidence and that it was neither arbitrary nor capricious and is correct on the facts and on the law, is entitled to finality, and it is hereby affirmed. The Ninth (Armor Plate) Contract In addition to the eight contracts described above that were terminated by the government and which were involved in ASBCA No. 10534, the plaintiff Algonac entered into a"
},
{
"docid": "22357887",
"title": "",
"text": "which constitute Maxwell’s and Algonac’s pleadings and briefs, and from all this have compiled a list summarizing what appear to be the claims that are presented to the court. They are as follows: 1. Torts have been committed by defendant against Maxwell and plaintiff Algonac Manufacturing Company. 2. The payment of plaintiff’s award to the IES by the Army was unauthorized and the award should now be paid to plaintiff. 3. A decision of the Eenegotiation Board should be overturned. 4. A district court judgment against Algonac should not be allowed as a set-off against any recovery in this case. 5. The decision of the ASB’CA on the eight contracts is ■wrong and should be overturned by the court. 6. Plaintiff is entitled to storage charges and a balance due in connection with the “ninth contract.” We will discuss these claims, along with the defenses pleaded by the government, in the order they are set out above. But, at the outset, we must decide the threshold question pertaining to the government’s affirmative defense that Maxwell is not a proper party to the suit. Our Buie 61(a) (formerly 24(a)) requires that “Every action shall be prosecuted in the name of the real party in interest; * * Our orders of July 10, 1967, and April 12, 1968, supra, referred to this requirement. The contracts which serve as the basis for the claims in this case were between the government and Algonac Manufacturing Company. John A. Maxwell was not a party to the contracts. Therefore, on all claims which involve the contracts, we hold that Maxwell is not a proper party to the suit, and we do not have jurisdiction of his petition. Accordingly, his petition covering all contract claims is hereby dismissed. Tort Claims Many of the claims in the petition are tort claims. Some torts were allegedly committed by defendant against Maxwell, and some against Algonac. The following is a list of the torts alleged for which they claim damages: 1. Wrongful prosecution. 2. Libel. 3. Defamation. 4. Institution of wrongful civil proceedings. 5. Conversion. In addition, Maxwell and Algonac"
},
{
"docid": "22357895",
"title": "",
"text": "closely scrutinize this part of the case. We note that most of the Board’s conclusions on the above matters complained of by plaintiff were decisions of fact, not of law. Therefore, unless such decisions on the facts are not supported by substantial evidence, they are entitled to finality. We held in Williamsburg Drapery Co. v. United States, 177 Ct. Cl. 776, 793, 369 F. 2d 729, 739 (1966): * * * To the extent that * * * problems are decided on the basis of evidence, the ASBCA view of the evidence must be upheld if substantially supported. We conclude that the record shows that the decision of the Board was supported by substantial evidence and that it was neither arbitrary nor capricious and is correct on the facts and on the law, is entitled to finality, and it is hereby affirmed. The Ninth (Armor Plate) Contract In addition to the eight contracts described above that were terminated by the government and which were involved in ASBCA No. 10534, the plaintiff Algonac entered into a ninth contract with the government, being contract No. DA-11-070-ORD-7795, which is sometimes referred to as the armor plate contract. This contract called for the production by plaintiff of 300 gun-carriage parts sets requiring armor plate of 14, % and 1% inches in thickness. Due to the fact that armor plate of these thicknesses was difficult to obtain, the government agreed to furnish it to the plaintiff to be used in executing the contract. An amendment to the original contract was signed by the parties as Supplemental Agreement No. 2 which provided for the furnishing of the armor plate by the government. The provisions of this supplemental agreement will be described in more detail in the following paragraphs. The government delivered the armor plate to the plaintiff at its factory as agreed and the plaintiff began production under the contract. All work was completed according to the terms of the contract on November 9,1953, on which date the last shipment of the manufactured products was forwarded to the government by the plaintiff. At the same time,"
},
{
"docid": "22357885",
"title": "",
"text": "the eight contracts discussed above, and some of them are at most peripheral to the contracts. The failure of the plaintiffs to retain an attorney to write their petition and briefs has made the court’s task of deciphering, setting out, analyzing and deciding these claims a most difficult one. There is no logical or systematic arrangement of the pleadings and briefs that show or present the complaints of the plaintiffs in a simple, concise and direct manner. The most that can be said of plaintiffs’ pleadings and briefs is that, taken as a whole, they seem to add up to a general statement to the court substantially as follows: We don’t like what has happened in this case and we ask you 1;o search the entire record, find the errors, correct them, and then award us a judgment. It goes without saying that a court is not required to search the record for errors that may be lurking among the labyrinths of voluminous records. This is a task that is imposed upon the complaining parties and their attorneys. If they do not perform it, the court is justified in assuming that no errors have been made. We said in Williamsburg Drapery Co. v. United States, 177 Ct. Cl. 776, 781-82, 369 F. 2d 729, 732 (1966) : * * * The court has often said that contractors should be specific in challenging the findings of a board, and that the court cannot be expected to plough through a record for itself without adequate record references and sufficiently detailed challenges to the administrative findings. * * * Again, in Sundstrand Turbo v. United States, 182 Ct. Cl. 31, 60, 389 F. 2d 406, 422-23 (1968), we said: * * * [T]be plaintiff has the burden of establishing the fact that the record does not support the Board’s finding. This it has failed to do. It is not the court’s function to supply this deficiency by an independent excursion along the administrative trail. * * * [Cases omitted.] Nevertheless, we have waded through the many pages of allegations, accusations and verbose ramblings"
},
{
"docid": "5025651",
"title": "",
"text": "the administrative proceedings concerning this issue which, in turn, shall prove self-evident of the fact that the Board of Contract Appeals clearly disregarded the true intention, of the parties * * It is not the task of this court to research the administrative record in order to sustain such unsupported allegations. As we have said before: * * * The entire administrative record is before us, however, and the plaintiff has the burden of establishing the fact that the record does not support the Board’s finding. This it has failed to do. It is not the court’s function to supply this deficiency by an independent excursion along the administrative trail. Sundstrand Turbo v. United States, 182 Ct. Cl. 31, 60, 389 F. 2d 406, 422-23 (1968). Looking to the record before us, we find that plaintiff has called our attention to only two facts in support of its motion: (1) the agreement was headed “Cost Reimbursement Contract,” and (2) an audit report by- the Government refers to the agreement as a cost-plus-fixed-fee contract. Certainly, without more, we cannot find that these facts are sufficient to discharge plaintiff’s burden of proof. Neither the heading of the contract, nor its description in a Government- audit report is sufficient to change the nature and legal import of the provisions of the contract itself. The-Board held, and we agree, that Article 17 converted what would have been a cost-plus contract into a limited price contract. Article 17 stated that notwithstanding the payment provi sions of Article 22, the cost limit stated in Article 17 was to prevail. The Board found that the contract was clearly understood to contain a fixed price provision, that this provision did not render the agreement ambiguous, and that the contractor could not reasonably, construe it differently. See Sun Shipbuilding & Dry Dock Co. v. United States, 183 Ct. Cl. 358, 393 F. 2d 807 (1968). The Board also found that even under Article 22 plaintiff could not recover, since it had not complied with the provisions of that article of the contract. Nothing has been suggested to us to"
},
{
"docid": "23004908",
"title": "",
"text": "Law” that the ASBCA decision was “arbitrary, capricious, and not supported by substantial evidence.” Since the plaintiff failed to point out specifically the errors committed by the ASBCA, defendant urged that this was a fatal defect (citing Volentine and Littleton v. United States, 136 Ct. Cl. 638, 145 F. Supp. 952 (1956), and Pyle v. United States, 143 Ct. Cl. 339, 163 F. Supp. 853 (1958)). The commissioner thought, however, that the petition sufficiently alleged the challenged errors in the ASBCA decision, and did not require amendment. The defendant also complained of plaintiff’s failure to allege specific administrative error in its requested findings of fact, but the commissioner felt that such a showing was better left to the briefs; although in this case the plaintiff simply filed its ASBCA brief, this infirmity was not deemed to be fatal. Another of the Government’s attacks was on the plaintiff’s failure to include record support for its proposed findings, in violation of our Buie 57(c) (1). The commissioner recognized the force of this contention but concluded nevertheless “that the various contentions raised by plaintiff before the ASBCA and rejected by it were delineated to the extent that they can be scrutinized in order to determine whether the ASBCA findings were supported by substantial evidence.” Report of Qovrmdr, p. 5. Although the defendant strongly urges us to dismiss the petition, even at the present phase of the litigation, on these same grounds urged below, we cannot say that the trial commissioner abused his discretion in proceeding to review the administrative decision on the merits. The court has often said that contractors should be specific in challenging the findings of a board, and that the court cannot be expected to plough through a record for itself without adequate record references and sufficiently detailed challenges to the administrative findings. We do not retreat one iota from that position, and we do not encourage the commissioners to gloss over too-general or inadequately supported attacks on board findings. But the rule is one of discretion and not an iron rule of law, and where a trial commissioner has"
},
{
"docid": "17766619",
"title": "",
"text": "of defendant’s argument rests upon the observation that Paragraph W-524 of the Code prescribes procedures for radiographic examination. The portion of that paragraph contained in the stipulated record does not explicitly so prescribe. It does, however, refer to unspecified subsequent paragraphs for the detailing of such procedures. These other parts of the Code should be made a part of the record, so that we can read all together and thus understand the meaning of Paragraph W-524. Furthermore, the present record does not disclose the physical feasibility of radiographing the welds in dispute, the relevant industry practice (if any), or the contemplated magnitude of plaintiff’s expense in conducting the radiographic examination. In the absence of such pertinent information, the court does not wish to resolve the substantive issue, or feel that it can do so adequately with its present information. If the parties are unable to cure these gaps by stipulation, we shall suspend our consideration of this claim and refer it to the Corps of Engineers Claims and Appeals Board to make the necessary findings of fact. See United States, v. Anthony Grace & Sons, 884 U.S. 424 (1966); Williamsburg Drapery Co. v. United States, 177 Ct. Cl. 776, 369 F. 2d 729 (1966). Count III. The third claim arises out of an increase in the price of steel which plaintiff supplied to the Government under a change order. There is no genuine factual issue in dispute, and the available record is quite adequate. The principal question is a legal one — whether this court should exercise its equitable powers to reform the parties’ written contract. In February 1955, the Government determined that the wye riser branches of each of the penstocks being constructed by plaintiff required strengthening by means of steel reinforcement and concrete encasement. Under Change Order No. 13, the contractor agreed to furnish all the necessary plant, labor and material (except concrete aggregate). An equitable adjustment for the additional work was to be agreed upon and embodied in supplements to the change order. We are concerned with the parties’ understanding and agreement on the procurement of the"
},
{
"docid": "22357888",
"title": "",
"text": "is not a proper party to the suit. Our Buie 61(a) (formerly 24(a)) requires that “Every action shall be prosecuted in the name of the real party in interest; * * Our orders of July 10, 1967, and April 12, 1968, supra, referred to this requirement. The contracts which serve as the basis for the claims in this case were between the government and Algonac Manufacturing Company. John A. Maxwell was not a party to the contracts. Therefore, on all claims which involve the contracts, we hold that Maxwell is not a proper party to the suit, and we do not have jurisdiction of his petition. Accordingly, his petition covering all contract claims is hereby dismissed. Tort Claims Many of the claims in the petition are tort claims. Some torts were allegedly committed by defendant against Maxwell, and some against Algonac. The following is a list of the torts alleged for which they claim damages: 1. Wrongful prosecution. 2. Libel. 3. Defamation. 4. Institution of wrongful civil proceedings. 5. Conversion. In addition, Maxwell and Algonac seek damages for unnamed torts committed by the government, which resulted in the following: 1. Ruined reputation. 2. Loss of Maxwell’s salary. 3. Loss of Maxwell’s home. 4. Losses from damages to the Algonac plant. 5. Losses from farced sale of Algonac’s equipment and machinery. 6. Loss of good will. 7. Loss of profits. This court has no original jurisdiction over tort claims, either under 28 U.S.C. § 1491 (1964) or otherwise. Numerous decisions of the Supreme Court and of this court have so held. See Schillinger v. United States, 155 U.S. 163, 167-69 (1894), and Benjamin v. United States, 172 Ct. Cl. 118, 128, 348 F. 2d 502, 510-11 (1965). Therefore, all the tort claims of Maxwell and Algonac Manufacturing Company are dismissed. Payment of the Board Award of $%79f¡61¡..01 to the Internad Revenue Service The plaintiff complains that the payment of the $279,264.01 awarded by the Board was paid to the Internal Revenue Service without authority and it should be ordered paid to the plaintiff. This and any other tax claim alleged by"
},
{
"docid": "9510879",
"title": "",
"text": "ON PLAINTIFFS’ MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO RULE 152(b) (3) SKELTON, Judge. This case comes before the court again on plaintiffs’ motion for relief from judgment pursuant to Rule 152(b) (3), claiming that fraud was perpetrated upon the court by defendant which caused the court to enter a judgment against the plaintiffs. The defendant has filed an opposition to plaintiffs’ motion and requests that the motion of plaintiffs be denied. The history of this litigation was set out in our opinion in this case, Algonac Mfg. Co. v. United States, 428 F.2d 1241, 192 Ct.Cl. 649 (1970). In that decision we held that the court did not have jurisdiction of the contract claims of John A. Maxwell, the president of plaintiff, Algonac Manufacturing Company, because the contracts involved were made by the United States with the company and not with Maxwell; and that we likewise did not have jurisdiction of Maxwell’s tort claims against the government. Accordingly, all of Maxwell’s individual claims were dismissed in that judgment. Even if he could show fraud on the part of the government in his present motion, which he has not done, this court would not have jurisdiction of his tort and contract claims, as we have no tort jurisdiction, and Maxwell had no contract in his individual capacity with the government. In our decision of July 15, 1970, referred to above, we dismissed all of the claims of Algonac Mfg. Co., except the storage charges claimed by it in the ninth contract, and we remanded that part of the case to our trial commissioner for trial. The company refused to proceed with a trial and on a show cause order hearing advised the court it did not wish to pursue that claim' further. Whereupon, the court dismissed that part of the case for lack of prosecution by order of May 18, 1971. By this action, all of the claims of plaintiffs were finally dismissed. John A. Maxwell is not an attorney. He attempted to represent Algonac Mfg. Co. in this court in the early stages of this case and filed a"
}
]
|
431020 | (en banc). Appellate review for reasonableness is “guided by the sentencing factors set forth in 18 U.S.C. § 3553(a), including the sentencing range established by the Sentencing Guidelines.” United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.), cert. denied, 547 U.S. 1158, 126 S.Ct. 2314, 164 L.Ed.2d 832 (2006). A. Salmoran-Sanchez Salmoran-Sanchez does not dispute that the district court properly calculated the advisory Sentencing Guidelines range, which was consistent with the calculations in the presentence report. Once the Guidelines range is calculated, a district court must consider the range along with the other sentencing factors set out in 18 U.S.C. § 3553(a), and determine whether any of those factors warrants a sentence above or below the Guidelines range. See REDACTED Where the sentence is within the range, it “ordinarily needs little explanation” and the “district court need not tick off each of the § 3553(a) factors .... ” Carty, 520 F.3d at 992; 18 U.S.C. § 3553(c) (“The court ... shall state in open court the reasons for its imposition of the particular sentence ....”). Because the sentence imposed in this case was within the Guidelines range, the district court complied with Section 3553(c) simply by stating the reason for the sentence. See, e.g., Mix, 457 F.3d at 912 (“Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence | [
{
"docid": "22778619",
"title": "",
"text": "basis for an upward departure. This argument conflates guideline sentencing review with post-Booker sentencing review. As set out above, the district court was obligated to undertake a correct Guidelines range calculation, and under Booker, the district court was required to take account of § 3553 sentencing factors as well. The district court did both. There was no guideline calculation error because the district court did not calculate a guideline range including a § 5K2.21 departure or impose a sentence based on a guideline departure. C As regards post -Booker sentencing, Mr. Mix contends that the district court failed to consider the mitigating sentencing factors set forth in 18 U.S.C. § 3553(a)(1). As discussed in considerable detail above, the district court considered at length and in great detail the nature of Mr. Mix’s offenses. Section 3553(a)(1) also required the district court to consider Mr. Mix’s personal history and characteristics. That is exactly what the court did when it considered Mr. Mix’s 17-year history of violence toward women. There is no ex post facto problem here because § 3553(a) has been the law of the land since 1984. The district court aptly considered other § 3553(a)(2) factors as well. Mr. Mix contends that in imposing a life sentence, the district court “ignored all the evident § 3553(a) factors which militate in favor of leniency.” He argues that [w]hile the sentencing court here dwelled at length on “the nature and circumstances of the offense” and Mix’s “history” as it relates to other uncharged conduct ..., the Court failed to so much as pay lip service to the wealth of information available to it regarding Mix’s “history and characteristics” relating to his mental health. Mr. Mix also maintains that the district court failed to consider his “record of employment, his military contributions, and his lack of guidance as a youth.” “Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” United States v. George,"
}
]
| [
{
"docid": "22537507",
"title": "",
"text": "well as reasons for particular deviations from the Sentencing Guidelines. See 18 U.S.C. § 3553(c). In carrying out these directives during sentencing, however, district courts are bound to consider the statutory sources themselves, not our summariza-tions, in tailoring sentences to the circumstances. Thus, to sentence a defendant, district courts must (1) properly calculate the sentence range recommended by the Sentencing Guidelines; (2) determine whether a sentence within that range and within statutory limits serves the factors set forth in § 3553(a) and, if not, select a sentence that does serve those factors; (3) implement mandatory statutory limitations; and (4) articulate the reasons for selecting the particular sentence, especially explaining why a sentence outside of the Sentencing Guideline range better serves the relevant sentencing purposes set forth in § 3553(a). See 18 U.S.C. § 3551(a). As we summarized the process in United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005): [A] district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. If the court imposes a sentence outside the guideline range, it should explain its reason for doing so. We add only that the district court’s reasons for not applying the properly calculated Guideline range must be based on the factors listed in § 3553(a). B Although the Supreme Court struck down 18 U.S.C. § 3742(e), which set forth standards for appellate review of a sentence, the Court inferred from “related statutory language, the structure of the statute, and sound administration of justice” that appellate courts must review a sentence “for unreasonableness.” Booker, 125 S.Ct. at 765. The Court added that the unreasonableness review “has regard” for the sentencing “factors” articulated in § 3553(a) and the reasons for the imposition of a particular sentence, as required by § 3553(c). In other words, even though we now review for unreasonableness, a standard which is intended to accommodate a range of discretion, reasonableness is"
},
{
"docid": "21236308",
"title": "",
"text": "the factors set forth in § 3553(a). Id. As already discussed, the district court correctly calculated Mr. Dale’s advisory guidelines range. When considering the § 3553(a) factors, the district court must give the defendant the opportunity to invite the court’s attention to those factors that might warrant a non-guidelines sentence. Id. The court then must provide “an adequate statement of the judge’s reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant.” Dean, 414 F.3d at 729. Although the statement must provide an adequate basis for the court of appeals to review the district court’s decision, the dis trict court need not “rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists.” Id. (citing United States v. George, 403 F.3d 470, 472-73 (7th Cir.2005)). The record simply must confirm that the district court “has given meaningful consideration to the section 3553(a) factors.” Williams, 425 F.3d at 480. At sentencing, after the district court calculated Mr. Dale’s advisory guidelines range, the Government requested a sentence in the middle of the advisory guidelines range and the court gave Mr. Dale the opportunity to set forth his arguments for a lower sentence, including a non-guidelines sentence. Mr. Dale pointed to his socio-economic status, the fact that he had become involved with the methamphetamine as a result of his father, his past substance abuse and his subsequent voluntary and “extraordinary” rehabilitation efforts as reasons justifying a sentence at the bottom of the advisory guidelines range. Mr. Dale contended that, because the advisory guidelines do not account for these factors, a sentence at the low end of the advisory guidelines was commensurate with his true culpability- After Mr. Dale had concluded his statement, the court stated that, when reaching its final sentencing decision, it would consider the § 3553(a) factors, “including the nature and characteristics of this defendant, the offense, the need for rehabilitation, [and] the need for deterrence.” R.89 at 156. This record demonstrates that the district court followed the procedures that we have set out for determining a defendant’s"
},
{
"docid": "22603966",
"title": "",
"text": "court’s judgment regarding the weight given to the § 3553(a) factors unless the district court has made “a clear error of judgment” and has imposed “a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. McBride, 511 F.3d 1293, 1297-98 (11th Cir.2007) (quotation omitted). Pursuant to § 3553(a), the sentencing “court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” See 18 U.S.C. § 3553(a). These purposes include, inter alia, promoting respect for the law, deterring criminal conduct, and protecting the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors in determining a particular sentence: the nature and circumstances of the offense and the history and characteristics of the defendant, the kinds of sentences available, the Guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentence disparities, and the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7). We ordinarily expect a sentence within the Guidelines range to be reasonable, and the appellant has the burden of establishing the sentence is unreasonable in light of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Gonzalez cannot show the court imposed a proeedurally or substantively unreasonable sentence. The district court properly calculated her Guidelines range, treated the range as advisory, considered all the statutory factors, and imposed a sentence near the middle of the range and supported by the statutory factors. Furthermore, Gonzalez’s sentence is well below the maximum ten-year sentence available under 8 U.S.C. 1326(b)(1) for reentry after conviction of a felony (other than an aggravated felony). C. Proof of Prior Conviction We review constitutional challenges to the application of the Sentencing Guidelines not raised in the district court for plain error. United States v. Ward, 486 F.3d 1212, 1221 (11th Cir.), cert. denied, — U.S. -, 128 S.Ct. 398, 169 L.Ed.2d 280 (2007). In Almendarez-Torres v. United"
},
{
"docid": "22583789",
"title": "",
"text": "be either lengthy or detailed. United States v. Navedo-Concepción, 450 F.3d 54, 58 (1st Cir.2006). By the same token, a sentencing court is not required to address frontally every argument advanced by the parties, nor need it dissect every factor made relevant by 18 U.S.C. § 3553 “one by one, in some sort of rote incantation, when explicating its sentencing decision.” United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006). Even silence is not necessarily fatal; “a court’s reasoning can often be inferred by comparing what was argued by the parties or contained in the presentence report with what the judge did.” Jiménez-Beltre, 440 F.3d at 519. Of particular pertinence here, we have recognized that sentences that fall inside a properly calculated guideline sentencing range require a lesser degree of explanation than those that fall outside the guideline sentencing range (whether above or below). United States v. Smith, 445 F.3d 1, 4 (1st Cir.2006). Accordingly, a district court’s statement of reasons for imposing a within-the-range sentence need not be as cogent as its reasons for imposing an outside-the-range sentence. Cf id. (explaining that “the farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification ... the judge must offer” (citation omitted)). This is consistent with pre-Booker practice. In that era, when the guidelines calculations were correct, the sentence imposed was within the computed range, and the range encompassed less than a 24-month spread, a sentencing court was not obliged to give any reasons for imposing a within-the-range sentence. See, e.g., United States v. Mansur-Ramos, 348 F.3d 29, 31 (1st Cir.2003) (citing 18 U.S.C. § 3553(c)). After Booker, when those preconditions are satisfied a district court arguably is not required to cite any reasons for imposing a within-the-range sentence. See Jiménez-Beltre, 440 F.3d at 519 (suggesting that, post -Booker, 18 U.S.C. § 3553(c) remains in full force); see also Booker, 543 U.S. at 258-65, 125 S.Ct. 738 (striking down certain provisions of the Sentencing Reform Act but leaving section 3553(c) intact). We say “arguably” because, in this ease, we need not answer that interesting question."
},
{
"docid": "22267550",
"title": "",
"text": "then consider the factors set forth in 18 U.S.C. § 3553(a) to decide if they support the sentence suggested by the parties. Carty, 520 F.3d at 991. Thus, the district court “should consider the nature and circumstances of the offense and the history and characteristics of the defendants; the need for the sentence imposed; the kinds of sentences available; the kinds of sentence and the sentencing range established in the Guidelines; any pertinent policy statement issued by the Sentencing Commission; the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and the need to provide restitution to any victims.” Id. (citing 18 U.S.C. § 3553(a)(1)-(7); Gall v. United States, — U.S. -, 128 S.Ct. 586, 596-97 n. 6, 169 L.Ed.2d 445 (2007)). The district court may not presume that the guidelines range is reasonable, but must make an individualized determination based on the facts. Carty, 520 F.3d at 991. Once the sentence is selected, the district court must explain it sufficiently to permit meaningful review. Id. at 992. However, “[t]he district court need not tick off each of the § 3553(a) factors to show that it has considered them.” Id. “Appellate review is to determine whether the sentence is reasonable; only a procedurally erroneous or substantively unreasonable sentence will be set aside.” Id. at 993 (citation omitted). While our circuit does not presume on appeal that a sentence within the Guidelines range is reasonable, we have recognized that a sentence within the Guidelines range “ “will usually be reasonable....’” Id. at 994 (quoting Rita v. United States, 551 U.S. -, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)). “We may not reverse just because we think a different sentence is appropriate.” Carty, 520 F.3d at 993 (citation omitted). 2. Analysis The district court followed the proper procedure in determining Rigoberto’s sentence. It first correctly calculated the applicable Guidelines range as 168 to 210 months, based on a base offense level of 35 and a Category I criminal history. The district court then provided the parties an opportunity to argue for"
},
{
"docid": "1062667",
"title": "",
"text": "States v. Dean, 414 F.3d 725, 729 (7th Cir.2005); see also United States v. George, 403 F.3d 470, 473 (7th Cir.2005) (“[I]t is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.”). In this case, the district court imposed a sentence within the properly calculated guideline range. The sentencing guideline range in the presentence report was correct, and the sentencing guideline calculation in the plea agreement was incorrect. Although Lopez argues that his sentence fails to account for the lower sentence originally calculated in the plea agreement, the agreement’s guideline calculation was always preliminary. The plea agreement specifically stated that it would be unaffected by “corrections [to the guideline calculation], and the defendant shall not have a right to withdraw his plea on the basis of such corrections.” A correction to a preliminary guideline calculation is not a valid factor for consideration under 18 U.S.C. § 3553(a). The district court adequately discussed the factors included in section 3553(a). The district court discussed the nature of the offense, the characteristics of the defendant, the need to impose a sentence that recognizes the seriousness of the offense, and the need for the defendant to receive drug treatment. The district court also discussed the range of sentences available. While this, discussion did not specifically reference every factor named in section 3553(a), such a checklist is unnecessary. Dean, 414 F.3d at 729. Lopez argues that his sentence is excessive because a sentence within the guideline range found in the original plea, agreement would have been sufficient to achieve the goals of 18 U.S.C. § 3553(a)(2). It is not relevant to this Court’s review whether the sentence found in the plea agreement calculation would also have been reasonable. The role of this Court is not to choose between possible sentences, but rather to review the reasonableness of the sentence imposed by the district court. The sentence imposed in this case was within the advisory range of the sentencing guidelines, based upon the factors in section 3553(a), and reflects significant consideration of the competing"
},
{
"docid": "1062666",
"title": "",
"text": "yielded a total sentence of 252 months or 21 years. During sentencing, the district court commented that Lopez did not “belong on the scrap heap” due to his cooperation, the related nature of the offenses, his drug problem, and his supportive family, but that the nature, pf his crimes “just cr[ies] out for a severe punishment.” II. Discussion In reviewing a district court sentence, this Court must evaluate whether the sentence imposed by the district court was reasonable. United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005). “[A]ny sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.” United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). Appellate courts are guided by the factors in 18 U.S.C. § 3553(a) when deciding whether a particular sentence is reasonable. Id. (citing Booker, 125 S.Ct. at 766). Provided a district court considers the factors in section 3553(a) and calculates the guideline range accurately, it is unnecessary to discuss every section 3553(a) factor individually. See United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005); see also United States v. George, 403 F.3d 470, 473 (7th Cir.2005) (“[I]t is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.”). In this case, the district court imposed a sentence within the properly calculated guideline range. The sentencing guideline range in the presentence report was correct, and the sentencing guideline calculation in the plea agreement was incorrect. Although Lopez argues that his sentence fails to account for the lower sentence originally calculated in the plea agreement, the agreement’s guideline calculation was always preliminary. The plea agreement specifically stated that it would be unaffected by “corrections [to the guideline calculation], and the defendant shall not have a right to withdraw his plea on the basis of such corrections.” A correction to a preliminary guideline calculation is not a valid factor for consideration under 18 U.S.C. § 3553(a). The district court adequately discussed the factors included in section 3553(a). The district court discussed the"
},
{
"docid": "22634487",
"title": "",
"text": "in the typical case, and that the judge has found that the case before him is typical.” Id. “Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” United States v. Mix, 457 F.3d 906, 912 (9th Cir.2006) (internal quotation marks omitted). Likewise, “when a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc). However, when a defendant’s arguments are straightforward and uncomplicated, the district court does not abuse its discretion when it listens to the defendant’s arguments and then “simply [finds those] circumstances insufficient to warrant a sentence lower than the Guidelines range.” Id. at 995 (quoting Rita, 127 S.Ct. at 2469). In this case, the district court did reference and apply the sentencing factors of § 3553(a). It stated: I believe this sentence satisfies the factors to be considered under section 3553(a). The court considered the nature and circumstances of the offense and the history and characteristics of the defendant. The court believes the sentence reflects the seriousness of the offense, particularly as it relates to a minor whose life may very well be negatively affected by the conduct of the defendant. The court believes the sentence is necessary to promote respect for the law and to let the general public know the seriousness of this crime through the length of the sentence. The court believes this provides a just punishment for the offense provided. The court believes that it affords adequate deterrence to this type of criminal conduct. The court believes this sentence protects the public from further crimes of this defendant. This explanation includes references to several subsections of 18 U.S.C. § 3553(a). Specifically, it refers to subsections (a)(1), (a)(2)(A), (a)(2)(B), and (a)(2)(C). Additionally, at various points in the sentencing"
},
{
"docid": "3674682",
"title": "",
"text": "review in conformance with the guidelines. See Booker, 543 U.S. at 259, 125 S.Ct. 738. This excision rendered the guidelines “effectively advisory,” id. at 245, 125 S.Ct. 738, and replaced the previous standard of review with review for reasonableness, see id. at 261, 125 S.Ct. 738. We have previously described the necessary procedure for imposing sentence under the now-advisory sentencing guidelines: First, the court must correctly determine, after making appropriate findings of fact, the applicable guideline range. Next, the court must determine whether a sentence within that range serves the factors set forth in [18 U.S.C.A.] § 3553(a) [ (West 2000 & Supp.2006) ] and, if not, select a sentence within statutory limits that does serve those factors. In doing so, the district court should first look to whether a departure is appropriate based on the Guidelines Manual or relevant case law.... If an appropriate basis for departure exists, the district court may depart. If the resulting departure range still does not serve the factors set forth in § 3553(a), the court may then elect to impose a non-guideline sentence (a “variance sentence”). The district court must articulate the reasons for the sentence imposed, particularly explaining any departure or variance from the guideline range. The explanation of a variance sentence must, be tied to the factors set forth in § 3553(a) and must be accompanied by findings of fact as necessary. The district court need not discuss each factor set forth in § 3553(a) in checklist fashion; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citations, internal quotation marks, & alterations omitted), cert. denied, — U.S. -, 126 S.Ct. 2054, 164 L.Ed.2d 804 (2006). We review a sentence for reasonableness, considering “the extent to which the sentence ... comports with the various, and sometimes competing, goals of § 3553(a).” Id. at 433. We begin our analysis by recounting the manner in which the district court calculated Appellants’ advisory guideline ranges. Baucom’s presentence report (PSR) estimated"
},
{
"docid": "21504281",
"title": "",
"text": "to the border agent in the field, and he never returned with more evidence, as the district court invited him to do, that he had made such an admission. Accordingly, the district court did not clearly err when it denied the downward adjustment. See United States v. Cantrell, 433 F.3d 1269, 1284-86 (9th Cir.2006). D.Reasonableness Finally, Becerril claims that his 100-month sentence was unreasonable. He contends the district court (1) treated the Guideline range as presumptively reasonable; (2) failed to consider the factors in 18 U.S.C. § 3553(a); and (3) imposed a sentence that was excessive in comparison to those received by defendants with similar criminal histories. We review for abuse of discretion, and will not reverse unless the sentence was procedurally erroneous or substantively unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008). Becerril’s first two arguments are procedural challenges. “It would be a procedural error for a district court to ... treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; ... or to fail adequately to explain the sentence selected.” Id. at 993. However, we have emphasized that [w]hat constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case, whether the sentence chosen is inside or outside the Guidelines, and the strength and seriousness of the proffered reasons for imposing a sentence that differs from the Guidelines range. A within-Guidelines sentence ordinarily needs little explanation unless a party has requested a specific departure, argued that a different sentence is otherwise warranted, or challenged the Guidelines calculation itself as contrary to § 3553(a). This is because both the Commission and the sentencing judge have determined that the sentence comports with the § 3553(a) factors and is appropriate in the ordinary case. Id. at 992. Here, the district court stated on the record that it considered the § 3553(a) factors, and indicated that it considered the most salient feature of Becerril’s individual circumstances to be his extensive criminal history. The court explained that it used the Guidelines range as a starting point in determining the sentence,"
},
{
"docid": "22434391",
"title": "",
"text": "Guidelines and, taking into account the sentencing factors set forth in section 3553(a), to impose a reasonable sentence. Our obligation, in turn, is to determine whether the sentence imposed, be it within or without the Guidelines range, is reasonable. E.g., Johnson, 427 F.3d at 426-27. Thus, Laufle’s contention that the district court imposed an erroneous standard in denying the government’s motion for a downward departure is a non-starter. The question instead is whether his sentence is reasonable. Departures aside, the nature and degree of his assistance to the government is of course a relevant sentencing factor, and we shall address Laufle’s cooperation below. There being no error in the calculation of Laufle’s offense level and sentencing range, what remains for us to determine is whether the sentence that the district court imposed is reasonable. In selecting a sentence, a district court is obliged to consider the sentencing factors identified in 18 U.S.C. § 3553(a). United States v. Dean, 414 F.3d 725, 728 (7th Cir.2005). That is not to say that the court must discuss and make findings as to each of these factors. George, 403 F.3d at 472-73 (“[j]udges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists”). It is enough that the record confirms meaningful consideration of the types of factors that section 3553(a) identifies. United States v. Williams, 425 F.3d 478, 480 (7th Cir.2005), cert. denied — U.S.-, 126 S.Ct. 1182, —L.Ed.2d- (2006). A concise statement of the factors that caused the judge to arrive at a particular sentence, consistent with section 3553(a), will normally suffice. Dean, 414 F.3d at 729. This is particularly so when the court imposes a sentence within the Guidelines range, because such a sentence is presumptively reasonable. United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). The district court’s sentencing decision comports with these criteria. This is not, in the first instance, a case in which the court gave little or no rationale for its decision. Cf. United States v. Cunningham, 429 F.3d 673, 677 (7th Cir.2005). The court articulated a number of reasons for"
},
{
"docid": "22634486",
"title": "",
"text": "was appropriate is insufficient to justify reversal of the district court.” Id. Stoterau raises both procedural and substantive objections to his sentence. He first contends that the district court did not adequately consider the § 3553(a) factors. According to Stoterau, the district court merely engaged in a rote recitation of § 3553(a) and thereby violated the Supreme Court’s admonishment that “[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, — U.S. ———, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). While district courts are required to “state in open court the reasons for [their] imposition of the particular sentence,” 18 U.S.C. § 3553(c), this obligation does “not necessarily require lengthy explanation.” Rita, 127 S.Ct. at 2468. “Circumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.” Id. “Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” United States v. Mix, 457 F.3d 906, 912 (9th Cir.2006) (internal quotation marks omitted). Likewise, “when a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc). However, when a defendant’s arguments are straightforward and uncomplicated, the district court does not abuse its discretion when it listens to the defendant’s arguments and then “simply [finds those] circumstances insufficient to warrant a sentence lower than the Guidelines range.” Id. at 995 (quoting Rita, 127 S.Ct. at 2469). In this case, the district court"
},
{
"docid": "18250686",
"title": "",
"text": "record support for the district court’s finding that Appellant was accountable for more than 150 kilograms of cocaine during the charged conspiracy, we need not remand for re-sentencing on this issue. (B) Reasonableness Appellant claims that his sentence of life plus 32 years is unreasonable because the district court failed to pay proper consideration to several of the relevant factors set forth in 18 U.S.C. § 3553(a). Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review challenges to sentences for reasonableness, regardless of whether the sentence falls within the range recommended under the United States Sentencing Guidelines. See United States v. Deppe, 509 F.3d 54, 62 (1st Cir.2007). “Even though Booker decreed the sentencing guidelines to be only advisory, the guidelines still play an important role in the sentencing procedure, so that (as was done here) a court should ordinarily begin by calculating the applicable guideline range.” United States v. Gilman, 478 F.3d 440, 445 (1st Cir.2007). After calculating the advisory Guidelines range, the court “must evaluate the factors set out in Section 3553(a) to consider whether to exercise its discretion to impose a non-guideline sentence ... and no less important, the court must provide a detailed, case-specific explanation for imposing the chosen sentence.” Id. (internal citations omitted). “The sentencing court may not mechanically assume that the [Guidelines] frame[] the boundaries of a reasonable sentence in every case.” United States v. Martin, 520 F.3d 87 (1st Cir.2008) (citing Gall v. United States,—U.S.-, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Ultimately, we review a trial court’s sentence with substantial deference, and as long “as we discern ‘a plausible explanation’ for the sentence and a ‘defensible overall result,’ we will not second-guess the district court’s informed judgment.” Id. (quoting United States v. Jimenez-Beltre, 440 F.3d 514, 519 (1st Cir.2006) (en banc)). Feliciano contends that the district court, in imposing a life sentence, did not sufficiently account for several of the factors set forth in Section 3553(a). Appellant claims that aspects of his history should have militated in favor"
},
{
"docid": "23327620",
"title": "",
"text": "later time to shortening Apodaca’s term of supervised release and included a statement in the sentencing order permitting Apodaca to request such relief later. Apodaca appeals from the district court’s sentencing order on two grounds. First, he claims that the imposition of lifetime supervised release was unreasonable. Second, he claims that the fifteenth supervised release condition violates his constitutional rights. For the reasons articulated below, we reject both arguments. II. We conduct a two-step analysis when reviewing the reasonableness of a sentence: “we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). A. Procedural Error When determining whether a district court committed a reversible procedural error during sentencing, we consider whether the court “(1) correctly calculate^] the Sentencing Guidelines range; (2) treat[ed] the Guidelines as Advisory; (3) considered] the 18 U.S.C. § 3553(a) factors; (4) [chose] a sentence that is not based on clearly erroneous facts; (5) adequately explain[ed] the sentence; and (6) [did] not presume that the Guidelines range is reasonable.” United States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir.2010) (footnote omitted) (citing Carty, 520 F.3d at 991-93). While Blinkinsop and Carty concerned allegations of procedural error with regard to terms of imprisonment, we consider the same factors when considering challenges to terms of supervised release. See Daniels, 541 F.3d at 921. Apodaca’s allegations of procedural error are limited to claims concerning the adequacy of the district court’s explanation of why it was imposing a lifetime term of supervised release. The sentencing statutes require district courts to “state in open court the reasons [supporting] imposition of a particular sentence.” 18 U.S.C. § 3553(c). Further, “when a party raises a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party’s position.” Carty, 520 F.3d at 992-93. Even though a “within-Guidelines sentence ordinarily needs little explanation,” courts are required to provide some explanation for their decision when “a party"
},
{
"docid": "20457903",
"title": "",
"text": "further and explain why he has rejected those arguments.”); see also Goff, 501 F.3d at 255 (“Although the District Court is not required either to comment on every argument counsel advances or to make findings as to each § 3553(a) factor, it nevertheless should expressly deal with arguments emphasized by the parties.”). Thus, other than addressing specific and nonfrivolous arguments raised by the parties, a district court need not offer much in the way of explanation to demonstrate that it has satisfied this requirement in imposing a sentence within the advisory Sentencing Guidelines. Carty, 520 F.3d at 992 (“A within-Guidelines sentence ordinarily needs little explanation ... because both the Commission and the sentencing judge have determined that the sentence comports with the § 3553(a) factors and is appropriate in the ordinary case.”). We did not hold in Carty that a district court’s failure to address nonfrivolous arguments raised by a party in support of a requested sentence would constitute procedural error. It is axiomatic, however, that if review of the reasonableness of a sentence is hindered by the district court’s failure to address specific arguments that are “tethered to a relevant § 3553(a) factor in support of a requested sentence,” meaningful appellate review is not possible and the sentence is by definition procedurally flawed. Id. at 992-93; see also Rita, 551 U.S. at 356, 127 S.Ct. 2456 (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”). This reasoning applies equally to sentences both within and outside the advisory Guidelines range. f In addition to the § 3553(a) factors, a district court may also consider the defendant’s assistance in the investigation and prosecution of another person who has committed an offense. United States v. Zolp, 479 F.3d 715, 721 (9th Cir.2007) (“[T]he district court did not err by considering Zolp’s cooperation as part of its analysis under 18 U.S.C. § 3553(a) rather than as part of its advisory guidelines calculation.”). “The Guidelines ‘afford[ ] the sentencing judge’ wide ‘latitude’"
},
{
"docid": "8460081",
"title": "",
"text": "(“Sentences varying from the guidelines range ... are reasonable so long as the judge offers appropriate justification under the factors specified in 18 U.S.C. § 3553(a). How compelling that justification must be is proportional to the extent of the difference between the advisory range and the sentence imposed.”) (internal quotation marks omitted); United States v. Moreland, 437 F.3d 424, 434 (4th Cir.2006) (“The farther the court diverges from the advisory guideline range, the more compelling the reasons for the divergence must be.”). Even some of the courts of appeals that have rejected the presumption seem to demand more when a sentencing judge issues a variance from the advisory guidelines range than when she does not. See United States v. Smith, 445 F.3d 1, 3 (1st Cir.2006) (“The sentence is not a modest variance from the guideline range, but less than half the minimum of the range. ‘[T]he farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.’ ”) (quoting United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005)); cf. United States v. Mix, 442 F.3d 1191, 1196-97 (9th Cir.2006) (“Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why {if the sentence lies outside it) this defendant deserves more or less.”) (internal quotation marks omitted and emphasis added). Where else, at any rate, would a court of appeals start in measuring the reasonableness of a sentence? Starting with the statutory minimum (if any) for the offense, then adjusting the sentence upward (if appropriate) based on the appellate court’s own assessment of the § 3553(a) factors, and then (and only then) considering the guidelines range might work in theory but would seem doomed to founder on the “rough equality” requirement, if not the impracticality- of such an approach. See United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.2006) (en"
},
{
"docid": "22201003",
"title": "",
"text": "whether the ultimate sentence is reasonable in light of the factors set forth in' 18 U.S.C. § 3553(a). United States v. Kristl, 437 F.3d 1050, 1053-54 (10th Cir.2006) (per curiam). We have held that when a sentence falls within the properly-calculated Guidelines range, it is “ ‘entitled to a re-buttable presumption of reasonableness.’ ” Galarza-Payan, 441 F.3d at 889 (quoting Kristi, 437 F.3d at 1054). As indicated above, Mr. Sanchez-Juarez does not challenge the district court’s application of the Guidelines. However, he argues that the presumption of reasonable ness does not apply here, even though his sentence falls on the low end of the correctly-calculated Guidelines range, and that his sentence is procedurally unreasonable, because the district court failed to state reasons for the sentence it imposed and failed to consider his arguments that the § 3553(a) factors warranted a sentence below the applicable Guidelines range. Alternatively, he contends that even if we apply the presumption, his arguments are sufficient to rebut it. There is no question that, in addition to guiding our reasonableness review on appeal, the sentencing factors set forth in 18 U.S.C. § 3553(a) must be considered by the district court itself when imposing a sentence. See 18 U.S.C. § 3553(a). Indeed, after Booker, these factors “have a new vitality in channeling the exercise of sentencing discretion.” United States v. Trajillo-Terrazas, 405 F.3d 814, 819 (10th Cir .2005). As described above, Mr. Sanehez-Juarez argued at the district court’s sentencing hearing that a number of factors warranted a below-Guidelines range sentence in this case and asked the court to impose a lower sentence than that calculated in the PSR. The court allowed Mr. Sanchez-Juarez to make these arguments and allowed the government to rebut them. Its decision to impose a sentence at the low end of the Guidelines range may fairly be read as a functional rejection of Mr. Sanchez-Juarez’s arguments and a denial of his request for a below-Guidelines sentence. However, the court stated no reasons for the sentence it imposed, other than first noting that it had reviewed the PSR’s factual findings and considered the Guidelines"
},
{
"docid": "22785668",
"title": "",
"text": "the sentence imposed by the court does not reflect the seriousness of the offense, promote respect for the law, or provide just punishment for the offense. Moreover, the government posits that the sentence in this case unquestionably will lead to sentencing disparities. After Booker, sentencing requires two steps. First, the district court must consult the Sentencing Guidelines and correctly calculate the range provided by the Guidelines. See United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005). Second, the court must consider this sentencing range along with the other factors described in 18 U.S.C. § 3553(a) and then impose a sentence. Hughes, 401 F.3d at 546. If a sentence within the sentencing range serves the factors set forth in § 3553(a), the court should impose a sentence within that range that best serves those factors. United States v. Green, 436 F.3d 449, 455 (4th Cir.2006). If a sentence within the sentencing range does not serve the § 3553(a) factors, the court may impose a sentence outside of the sentencing range, provided it explains “why a sen-fence outside of the Sentencing Guideline range better serves the relevant purposes set forth in § 3553(a).” Green, 436 F.3d at 455. In determining whether a sentence is reasonable on appeal, we are guided by the factors in 18 U.S.C. § 3553(a). Booker, 125 S.Ct. at 765-66. To establish the reasonableness of a sentence, a district court need not explicitly discuss every § 3553(a) factor on the record. See United States v. Rines, 419 F.3d 1104, 1107 (10th Cir.2005) (noting that, in a case where the district court imposed an identical discretionary sentence, “[i]t is true that the district court did not march through § 3553(a)’s sentencing factors, but we have never imposed such a requirement”); United States v. Dean, 414 F.3d 725, 728 (7th Cir.2005) (rejecting the contention that “it is the duty of the sentencing judge, in every case and whether or not the defendant invokes any of the factors mentioned in section 3553(a), to make an explicit, articulated analysis of all of them a part of the sentencing process”). Rather, the record"
},
{
"docid": "22583788",
"title": "",
"text": "Reasonableness. The appellant has a fallback position. He maintains that, even if the district court correctly calculated the GSR, his 48-month sentence is unreasonable. Relatedly, he suggests that the district court erred in not explaining why that long a sentence was warranted. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court rendered the sentencing guidelines advisory. See id. at 245. We review sentences imposed under an advisory guidelines regime for reasonableness, regardless of whether they fall inside or outside the applicable GSR. See United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.2006) (en banc). We start this aspect of our analysis with a bow to the statutory requirement that a sentencing court must “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). This directive does not mean that the sentencing court’s explanation need be precise to the point of pedantry. While the court ordinarily should identify the main factors upon which it relies, its statement need not be either lengthy or detailed. United States v. Navedo-Concepción, 450 F.3d 54, 58 (1st Cir.2006). By the same token, a sentencing court is not required to address frontally every argument advanced by the parties, nor need it dissect every factor made relevant by 18 U.S.C. § 3553 “one by one, in some sort of rote incantation, when explicating its sentencing decision.” United States v. Dixon, 449 F.3d 194, 205 (1st Cir.2006). Even silence is not necessarily fatal; “a court’s reasoning can often be inferred by comparing what was argued by the parties or contained in the presentence report with what the judge did.” Jiménez-Beltre, 440 F.3d at 519. Of particular pertinence here, we have recognized that sentences that fall inside a properly calculated guideline sentencing range require a lesser degree of explanation than those that fall outside the guideline sentencing range (whether above or below). United States v. Smith, 445 F.3d 1, 4 (1st Cir.2006). Accordingly, a district court’s statement of reasons for imposing a within-the-range sentence need not be as cogent as its reasons"
},
{
"docid": "23250259",
"title": "",
"text": "the range suggested by the Guidelines, § 3553(c) requires the court to provide only a general statement of “the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). We do not require the district court to “recite any magic words to show us that it fulfilled its responsibility” to consider the § 3553(a) factors. United States v. Sanchez-Juarez, 446 F.3d 1109, 1115 (10th Cir.2006) (internal quotations and citations omitted). The district court judge entertained Parker’s sentencing arguments at length and indicated on the record the § 3553(a) factors explaining the reliance on the sentencing range suggested by the Guidelines: I conclude that the Section 3553 factors carefully considered and taken together do lead to a result entirely in harmony with the application of the guidelines alone and that there is nothing in the Section 3553 factors which leads me to a conclusion that a sentence below the bottom of the guidelines range is warranted. R., Vol. IX at 1632-33. In the absence of any request for a downward departure, when a sentence is within the Guidelines range, nothing more is required. 2. Substantive reasonableness Parker also challenges the substantive reasonableness of his sentence. We review the district court’s sentence for reasonableness in light of the § 3553(a) sentencing factors. See United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir.2007) (“In evaluating the substantive reasonableness of a sentence, we ask whether the length of the sentence is reasonable considering the statutory factors delineated in 18 U.S.C. § 3553(a).”). Sentences imposed within a properly calculated Guidelines range are accorded a presumption of substantive reasonableness. United States v. Hernandez, 509 F.3d 1290, 1298 (10th Cir.2007); see Gall, 128 S.Ct. at 597 (“If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness.”); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2457, 168 L.Ed.2d 203 (2007). The presumption of reasonableness “is a deferential standard that either the defendant or the government may rebut by demonstrating that the sentence is unreasonable when viewed against the other factors delineated"
}
]
|
883311 | return, and so, were negligent and intentionally disregarded the rules and regulations. We agree with respondent. An addition to tax under section 6653(a) is imposed if any part of any underpayment of tax is due to negligence or intentional disregard of rules or regulations. For 1977, petitioners have an underpayment equal to their deficiency in income tax (see I. Deficiency in Income Tax, supra). We have already found that petitioners’ failure to disclose sufficient data from which their tax liability could be computed was deliberate and in open disregard of the statute and respondent’s regulations. Moreover, it is difficult to understand how petitioners could have honestly believed they owed no income tax based on the claims in their 32-page document. Cf. REDACTED Accordingly, we conclude that a part of petitioners’ underpayment for 1977 was due to negligence or intentional disregard of rules or regulations. On this issue, we hold for respondent. In view of the foregoing, Decision will be entered under Rule 155. Unless indicated otherwise, all section references are to sections of the Internal Revenue Code of 1954 as in effect for the taxable year in issue. Since respondent asserts that no return was filed by petitioners, respondent asserts a deficiency in the full amount of the asserted income tax liability (sec. 6211) and computes the addition to tax under sec. 6653(a) based on that amount (sec. 6653(c)). Respondent implicitly concedes that, for purposes of the sec. 6651(a) addition to tax, petitioners are | [
{
"docid": "6385033",
"title": "",
"text": "from a separate trade or business for which he may have used the room as the principal place of business. Thus, section 280A(c)(5) also precludes this deduction. Rather than argue that he is entitled to a deduction for a home office, James contends that the room was used as a storage facility for his law library and files, in lieu of renting a separate warehouse. Since he was not in the trade or business of selling products at wholesale or retail, however, he is not entitled to a home storage deduction. Sec. 280A(c)(2). The final issue is whether petitioners are liable for the addition to tax for intentionally disregarding the rules and regulations. Sec. 6653(a). Since this issue was raised in the answer, the burden of proof is on respondent. Rule 142(a). Respondent has neither asserted nor introduced evidence that petitioners’ underpayment derived from the settled issues or that the claimed home storage deduction was due to negligence or intentional disregard of the rules. Instead, he asserts solely that their use of the unmarried individual tax schedules constituted an intentional disregard of the rules and that the letter attached to their returns acknowledged this. We think it clear that petitioners took their action deliberately and in open disregard of the requirements of the statute. There are some early indications that, insofar as section 6653(a) is concerned, reasonable basis for a taxpayer’s action might not be considered as justification for ignoring respondent’s rules and regulations. See Journal Co. v. Commissioner, 46 B.T.A. 841, 846 (1942), revd. on another issue 134 F.2d 165 (7th Cir. 1943). See also S. Rept. 1622, 83d Cong., 2d Sess. 59 (1954), and H. Rept. 2543, 83d Cong., 2d Sess. 80 (1954), wherein an' unsuccessful attempt to deal directly with this particular problem is set forth. But it appears that, although respondent’s regulations under section 6653(a) do not speak directly to the subject of .\"reasonable basis,” such a requirement is involved, under certain circumstances, both in the case of negligence and in that of intentional disregard of respondent’s rules and regulations. Compare sec. 1.6694-l(a)(4), Income Tax Regs.,"
}
]
| [
{
"docid": "6337357",
"title": "",
"text": "of tax is due to negligence or intentional disregard of rules or regulations. For 1977, petitioners have an underpayment equal to their deficiency in income tax (see I. Deficiency in Income Tax, supra). We have already found that petitioners’ failure to disclose sufficient data from which their tax liability could be computed was deliberate and in open disregard of the statute and respondent’s regulations. Moreover, it is difficult to understand how petitioners could have honestly believed they owed no income tax based on the claims in their 32-page document. Cf. Druker v. Commissioner, 77 T.C. 867 (1981). Accordingly, we conclude that a part of petitioners’ underpayment for 1977 was due to negligence or intentional disregard of rules or regulations. On this issue, we hold for respondent. In view of the foregoing, Decision will be entered under Rule 155. Unless indicated otherwise, all section references are to sections of the Internal Revenue Code of 1954 as in effect for the taxable year in issue. Since respondent asserts that no return was filed by petitioners, respondent asserts a deficiency in the full amount of the asserted income tax liability (sec. 6211) and computes the addition to tax under sec. 6653(a) based on that amount (sec. 6653(c)). Respondent implicitly concedes that, for purposes of the sec. 6651(a) addition to tax, petitioners are entitled to take into account the $1,112.23 income tax withholding shown on petitioner-husband’s Form W-2 (sec. 6651(b)). Respondent apparently has not taken into account for this purpose the 1977 estimated tax payment of $316.42 shown on petitioner’s Form 1040. By order dated Apr. 6, 1981, we granted respondent’s motion to compel stipulation and directed petitioners to file a response to respondent’s proposed stipulations and show cause why the facts and evidence recited in such proposed stipulations should not be accepted as established for purposes of this case. Petitioners claimed that the Fourth and Fifth Amendments to the Constitution of the United States protected them from having to respond to pars. 6 through 34 of respondent’s initial proposed stipulation and pars. 6 through 15 of respondent’s revised proposed stipulation. Petitioners agreed to"
},
{
"docid": "18666491",
"title": "",
"text": "date prescribed for payment of the tax.” (Emphasis supplied.) As is apparent from the above quoted passage, the correct amount of tax, upon which the section 6651(a)(1) addition is based, is reduced only by amounts paid prior to the date prescribed for payment of such tax. Section 6151(a) states that: when a return of tax is required under this title or regulations, the person required to make such return shall * * * pay such tax at the time and place fixed for filing the return (determined without regard to any extension of time for filing the return). [Emphasis supplied.] Section 6072(a) provides that taxpayers, such as petitioners, who make their returns on the basis of a calendar year, must file such returns by the 15th day of April following the close of such calendar year. Therefore, petitioners were required to pay their 1981 and 1982 taxes by April 15, 1982, and April 15, 1983, respectively. Even if they had obtained valid extensions of time within which to file their returns, this would not extend or delay the date on which they were required to pay the tax shown on their returns. Sec. 6151(a). Sec. 1.6081-4(b), Income Tax Regs. Therefore, we uphold respondent’s computation of the additions to tax under section 6651(a)(1). The final issue is whether petitioners are hable for additions to tax under section 6653(a)(1) and section 6653(a)(2). Section 6653(a)(1) provided that if any portion of an underpayment of any tax is due to negligence or intentional disregard of the rules or regulations, the taxpayer is hable for an addition to tax equal to 5 percent of the entire underpayment. Section 6653(a)(2) provided for an addition to tax equal to 50 percent of the interest which is imposed under section 6601 on that portion of the underpayment which is due to neghgence or intentional disregard of rules or regulations. An “underpayment,” as that term is used in section 6653, is equivalent to a “deficiency,” as defined in section 6211(a) (section 6653(c)), except where the return is not timely filed. Section 6211(a) defines a deficiency, in essence, as the"
},
{
"docid": "2530139",
"title": "",
"text": "an annual rate established under section 6621 upon the amount of the underpayment (determined under subsection (b)) for the period of the underpayment (determined under subsection (c)). Subsec. (d) of sec. 6654 provided an exception to the application of subsec. (a) if the amount of estimated tax paid by the taxpayer on or before the due date of an installment equaled or exceeded the lesser of certain amounts computed under the provisions contained therein. Petitioners have presented neither evidence nor arguments to demonstrate that this exception is applicable. Petitioner had signed all five of the Forms 1065, but only the Hillcrest returns were dated by petitioner. Sec. 6653(a) provided during the years in issue: SEC. 6653(a). Negligence or Intentional Disregard of Rules and Regulations with Respect to Income, Gift, or Windfall Profit Taxes. — If any part of any underpayment * * * is due to negligence or intentional disregard of rules and regulations (but without intent to defraud), there shall be added to the tax an amount equal to 5 percent of the underpayment. Sec. 6653(c)(1) defines “underpayment” for purposes of sec. 6653 as a “deficiency” as defined in sec. 6211, except that the tax shown on a return referred to in sec. 6211(a)(1)(A) shall be taken into account only if the return was timely filed."
},
{
"docid": "20193649",
"title": "",
"text": "of the items contributed. Amounts shown in this column are those reported by petitioners on their Federal income tax returns for the respective years in issue as their acquisition costs for the items contributed. Amounts shown in this column are those determined by respondent in his notices of deficiency dated June 26,1981 (regarding calendar tax years 1976-78) and Aug. 26,1982 (regarding calendar tax years 1979 and 1980) as the fair market values of the items contributed. \"Traditional” African art is that which is made by a native artist in his African habitat in conformance with the style of his cultural group, intended for use within that culture, and so used. \"Tourist” or \"airport” art is that which is specifically made to be sold to tourists and is usually produced in quantity in workshops established for that purpose. Unless otherwise indicated, all regulation section references are to the Federal Income Tax Regulations (Title 26, Code of Federal Regulations) effective for the tax year or years in issue. Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure. Estate of Gallo v. Commissioner, T.C. Memo. 1985-363, citing Buffalo Tool & Die Manufacturing Co. v. Commissioner, 74 T.C. 441, 452 (1980). Sec. 6653(a) provides as follows: SEC. 6653. FAILURE TO PAY TAX. (a) Negligence or Intentional Disregard of Rules and Regulations With Respect to Income or Gift Taxes. — If any part of any underpayment (as defined in subsection (c)(1)) of any tax imposed by subtitle A or by chapter 12 of subtitle B (relating to income taxes and gift taxes) is due to negligence or intentional disregard of rules and regulations (but without intent to defraud), there shall be added to the tax an amount equal to 5 percent of the underpayment. Sec. 212 provides as follows: SEC. 212. EXPENSES FOR PRODUCTION OF INCOME. In the case of an individual, there shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year— (1) for the production or collection of income; (2) for the management, conservation, or maintenance of"
},
{
"docid": "6337355",
"title": "",
"text": "file a return. Since we have found that petitioners failed to file an income tax return for 1977, we must now decide whether such failure was due to reasonable cause and not due to willful neglect. Petitioners claim that they intended to file in good faith a \"Fifth Amendment return.” As we have already stated, the law is settled that petitioners’ Fifth Amendment claims, based on remote or speculative possibilities of prosecution for unspecified crimes, are groundless. A good-faith belief that the filing of an income tax return would violate a taxpayer’s constitutional rights does not, in and of itself, constitute reasonable cause for failure to file. United States v. Daly, 481 F.2d at 30; Stevens Bros. Foundation, Inc. v. Commissioner, 39 T.C. 93, 129-134 (1962), modified 324 F.2d 633, 646 (8th Cir. 1963); Muste v. Commissioner, 35 T.C. 913, 920 (1961). Under these circumstances, we find that petitioners’ failure to disclose sufficient data from which their tax liability can be computed was deliberate and in open disregard of the statute and respondent’s regulations. We further find that petitioners’ failure to file an income tax return for 1977 was due to willful neglect and not due to reasonable cause. As indicated in note 2 supra, petitioners’ Form 1040 showed payments of 1977 estimated tax in the amount of $316.42. Respondent, who has the burden of proof on this issue, has failed to show that petitioners did not make estimated tax payments in that amount. Such payments reduce the base for the section 6651(a)(1) addition to tax. Sec. 6651(b)(1). This reduction is to be given effect under Rule 155. On this issue, apart from the effect of estimated tax payments, we hold for respondent. III. Section 6653(a) Addition to Tax Petitioners maintain that they did not act negligently and did not disregard rules or regulations they were bound to obey. Respondent asserts that petitioners knowingly failed to file a valid return, and so, were negligent and intentionally disregarded the rules and regulations. We agree with respondent. An addition to tax under section 6653(a) is imposed if any part of any underpayment"
},
{
"docid": "6337356",
"title": "",
"text": "further find that petitioners’ failure to file an income tax return for 1977 was due to willful neglect and not due to reasonable cause. As indicated in note 2 supra, petitioners’ Form 1040 showed payments of 1977 estimated tax in the amount of $316.42. Respondent, who has the burden of proof on this issue, has failed to show that petitioners did not make estimated tax payments in that amount. Such payments reduce the base for the section 6651(a)(1) addition to tax. Sec. 6651(b)(1). This reduction is to be given effect under Rule 155. On this issue, apart from the effect of estimated tax payments, we hold for respondent. III. Section 6653(a) Addition to Tax Petitioners maintain that they did not act negligently and did not disregard rules or regulations they were bound to obey. Respondent asserts that petitioners knowingly failed to file a valid return, and so, were negligent and intentionally disregarded the rules and regulations. We agree with respondent. An addition to tax under section 6653(a) is imposed if any part of any underpayment of tax is due to negligence or intentional disregard of rules or regulations. For 1977, petitioners have an underpayment equal to their deficiency in income tax (see I. Deficiency in Income Tax, supra). We have already found that petitioners’ failure to disclose sufficient data from which their tax liability could be computed was deliberate and in open disregard of the statute and respondent’s regulations. Moreover, it is difficult to understand how petitioners could have honestly believed they owed no income tax based on the claims in their 32-page document. Cf. Druker v. Commissioner, 77 T.C. 867 (1981). Accordingly, we conclude that a part of petitioners’ underpayment for 1977 was due to negligence or intentional disregard of rules or regulations. On this issue, we hold for respondent. In view of the foregoing, Decision will be entered under Rule 155. Unless indicated otherwise, all section references are to sections of the Internal Revenue Code of 1954 as in effect for the taxable year in issue. Since respondent asserts that no return was filed by petitioners, respondent asserts"
},
{
"docid": "18666492",
"title": "",
"text": "or delay the date on which they were required to pay the tax shown on their returns. Sec. 6151(a). Sec. 1.6081-4(b), Income Tax Regs. Therefore, we uphold respondent’s computation of the additions to tax under section 6651(a)(1). The final issue is whether petitioners are hable for additions to tax under section 6653(a)(1) and section 6653(a)(2). Section 6653(a)(1) provided that if any portion of an underpayment of any tax is due to negligence or intentional disregard of the rules or regulations, the taxpayer is hable for an addition to tax equal to 5 percent of the entire underpayment. Section 6653(a)(2) provided for an addition to tax equal to 50 percent of the interest which is imposed under section 6601 on that portion of the underpayment which is due to neghgence or intentional disregard of rules or regulations. An “underpayment,” as that term is used in section 6653, is equivalent to a “deficiency,” as defined in section 6211(a) (section 6653(c)), except where the return is not timely filed. Section 6211(a) defines a deficiency, in essence, as the correct amount of tax for the year in issue, decreased by any amount of tax shown by the taxpayer on his return if a return is filed plus amounts previously assessed or collected without assessment as a deficiency increased by any rebates. However, the tax shown on the taxpayer’s return is not taken into account if the return is not filed within the date prescribed by law determined with regard to extensions. Sec. 6653(c)(1). We have previously determined that petitioners’ requests for extensions were void and, therefore, their 1981 and 1982 returns were not filed within the date prescribed by law. Therefore, petitioners’ “underpayment” is their entire correct tax liability for 1981 and 1982, unreduced by the amounts shown as tax on their returns. Sec. 6653(c)(1). Cf. Breman v. Commissioner, 66 T.C. 61, 71 (1976). Negligence has been defined as a lack of due care or the failure to do what a reasonable and ordinarily prudent person would do under the circumstances. Marcello v. Commissioner, 380 F.2d 499 (5th Cir. 1967), affg. in part and"
},
{
"docid": "10411830",
"title": "",
"text": "file the returns. We hold that petitioner’s failure to file timely returns was not due to reasonable cause and accordingly we uphold respondent’s assessment of the additions to tax under section 6651(a). Petitioner may not establish reasonable cause on the basis of furnishing the necessary information to its accountants and relying on them to file its income tax returns. This case is distinguishable from those cases where taxpayers were held to have exercised ordinary business care and prudence in relying upon an attorney or accountant where the return required to be filed timely was required by a law which a taxpayer, not an expert in tax matters, would not normally be aware of. See, e.g., Reliance Factoring Corp., 15 T.C. 604 (1950). Petitioner knew the Form 1120L returns were required (Payne filed timely extension requests for those years) and cannot therefore be heard to argue that there was reasonable cause due to reliance upon the accountants. Negligent Failure To Pay Tax The respondent lias determined additions to tax pursuant to section 6653 (a) providing a 5-percent addition to tax when any part of an underpayment is due to negligence or intentional disregard of rules and regulations. Petitioner was advised in 1963 by a firm of certified public accountants that its income tax returns for the years 1958 through 1961 had not been filed and that petitioner had not paid all of its income taxes due in some of those years. Since we have already found that petitioner did not exercise ordinary business care and prudence in relying upon its previous accountants to file its returns (and to advise petitioner of any income tax due thereon), and that petitioner knew such returns were required to be filed, we accordingly find that a part of the underpayment was due to negligence or intentional disregard of rules and regulations. We hold for the respondent on this issue. Decision will be entered under Bule 50. All statutory references art* to the Internal Itovemu* Code of 1054. nulos» otherwise specified. SEC. 817(d). Gain on Transactions Occurring Prior to January 1, 1939. — For purposes of"
},
{
"docid": "16798132",
"title": "",
"text": "an accounting of government appropriations, expenditures, and receipts [pursuant to U.S. Const, art. I, sec. 9, cl. 7] has been usurped by an elaborate scheme of budget manipulations, underhanded transfers between agencies and heads of appropriation, and downright fraudulent reporting on the part of the Treasury,” and which stated that petitioner would not support “a system that downgrades me by devious means when I am a protagonist of undeniable constitutional precepts or a system that falsifies and complicates the only accounting system by which I could hope to check on the disbursement of tax revenue broadcast all over the world by unknown people representing unknown agencies with unlimited spending authority and no accountability.” At the conclusion of the letter, petitioner demanded that respondent return the amounts withheld for the payment of income taxes from the wages petitioner had earned during 1971. Under date of June 18, 1976, respondent sent petitioner a statutory notice of deficiency determining deficiencies and additions to tax as previously set forth. The statement attached to the notice of deficiency shows that respondent first determined petitioner’s gross income for each of the 4 years at issue as comprised of wages, rent from a brick house located at Wise, Va., and rent from the Gate City, Va., farm, allowed a standard deduction and one personal exemption, and then calculated the deficiencies by applying the tax rates applicable to married taxpayers filing separate returns. The statement explains the additions to tax as being made under section 6651(a) for failure to file income tax returns for each year at issue and under -section 6653(a) because of a determination that part of the underpayment of tax for each year was due to negligence or intentional disregard of rules and regulations. Petitioner has not contested the imposition of the addition to tax under section 6653(a). OPINION Petitioner maintains that he should not be required to file a return or pay any deficiency in tax because, both during the taxable years at issue and currently, the Government engaged in unconstitutional and criminal conduct. More specifically, petitioner argues that while the intelligence community, particularly"
},
{
"docid": "2530138",
"title": "",
"text": "follows: SEC. 6651(a). Additions to the Tax. — In case of failure— (2) to pay the amount shown as tax on any return specified in paragraph (1) on or before the date prescribed for payment of such tax (determined with regard to any extension of time for payment), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount shown as tax on such return 0.5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 0.5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate; * * * Sec. 6654(a) provided in 1978: SEC. 6654(a). Addition to the Tax. — In the case of any underpayment of estimated tax by an individual, except as provided in subsection (d), there shall be added to the tax under chapter 1 * * * for the taxable year an amount determined at an annual rate established under section 6621 upon the amount of the underpayment (determined under subsection (b)) for the period of the underpayment (determined under subsection (c)). Subsec. (d) of sec. 6654 provided an exception to the application of subsec. (a) if the amount of estimated tax paid by the taxpayer on or before the due date of an installment equaled or exceeded the lesser of certain amounts computed under the provisions contained therein. Petitioners have presented neither evidence nor arguments to demonstrate that this exception is applicable. Petitioner had signed all five of the Forms 1065, but only the Hillcrest returns were dated by petitioner. Sec. 6653(a) provided during the years in issue: SEC. 6653(a). Negligence or Intentional Disregard of Rules and Regulations with Respect to Income, Gift, or Windfall Profit Taxes. — If any part of any underpayment * * * is due to negligence or intentional disregard of rules and regulations (but without intent to defraud), there shall be added to the tax an amount equal to 5 percent of the underpayment."
},
{
"docid": "18666494",
"title": "",
"text": "revg. in part a Memorandum Opinion of this Court. Petitioners cite four principal reasons for their understatement of taxable income in 1981 and 1982. First, petitioners lost or misplaced many of the Forms 1099 which disclosed the true extent of interest and dividend income they received in 1981 and 1982. Second, information relating to Embry Operations wás in the hands of Mrs. Crocker’s father, Mr. Embry, and, therefore, petitioners did not have ready access to this information. Third, Mr. Crocker mistakenly excluded his reimbursements for expenses in connection with his “day work,” from his gross income even though he deducted these expenses on his return. Finally, petitioners deducted the amounts contributed to Mr. Crock-er’s Keogh plan based on the advice of an insurance salesman who sold him the plan. On the basis of the same facts from which we concluded that petitioners did not make bona fide attempts to estimate their tax liabilities and did not have reasonable cause for failing to file timely returns, we hold that petitioners were negligent in failing to properly report their tax liabilities. Under section 6653(a)(1), the 5-percent addi tion to tax is computed on the entire underpayment, if any part of the underpayment is due to negligence. Commissioner v. Asphalt Products, Co., 482 U.S. 117 (1987). We therefore sustain respondent’s determination of additions to tax under section 6653(a)(1) in full. Section 6653(a)(2) provides for an addition to tax with respect to the portion of the underpayment which is due to negligence. It is clear that petitioners’ negligence caused them to underreport their interest and dividend income. They failed to use due care in maintaining adequate records from which this income could be determined. This shows not only negligence, but also an intentional disregard of the rules and regulations which require a taxpayer to keep permanent records sufficient to establish the taxpayer’s gross income, deductions, etc. Sec. 6001; sec. 1.6001-1, Income Tax Regs. Petitioners’ only excuse, that Mr. Crocker was extremely busy, is simply not adequate to relieve them of their obligation to maintain records and correctly report income. Petitioners were also negligent in"
},
{
"docid": "22859188",
"title": "",
"text": "that an addition to tax is due if a taxpayer fails to timely file a return unless such failure is due to reasonable cause and not due to willful neglect. The evidence is clear that petitioner’s actions were deliberate, intentional, and in complete disregard of the statute and respondent’s regulations. Petitioner made no attempt to file an authentic tax return, as he did for 1979, and offers no excuse for his failure to do so. He must accept the consequences of actions knowingly taken. See Reiff v. Commissioner, supra at 1180. Respondent has met his burden of proving that petitioner did not file a return for sections 6011, 6012, 6072, and 6651(a)(1) purposes, and thus an addition to tax is due. Intentional Disregard of Rules and Regulations Respondent, in the answer, alleged an addition to tax under section 6653(a) in that all or part of petitioner’s underpayment of income tax was due to petitioner’s negligence or intentional disregard of rules and regulations. It was alleged, further, that the tampered form filed by petitioner was not a return as required by section 6011, and that without reasonable cause and due to willful neglect, petitioner failed to file a Federal income tax return for the year 1981 as required by section 6011. When a taxpayer has not filed a return for the taxable year, the underpayment is defined as \"The amount of the tax imposed by subtitle A * * * if a return was not filed on or before the last date (determined with regard to any extension of time) prescribed for filing such return.” In this case, we have found petitioner has willfully failed to file a return for the 1981 year. Additionally, we note petitioner is aware of the income statutes, regulations, and relevant case law such as Eisner v. Macomber, 252 U.S. 189 (1920), as shown by his petition and the memorandum filed with the 1981 tampered form. Furthermore, petitioner has shown that he knows of his duty and how to properly report his income on his 1979 return. We conclude that petitioner’s underpayment of tax was due"
},
{
"docid": "6337362",
"title": "",
"text": "as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate. Both sides have dealt with the status of the 32-page document as a tax return but only for purposes of the sec. 6651(a) issue presented to us. Under the circumstances, we make no determination as to possible collateral implications of our decision on this issue, .and leave the parties as we find them with respect to such collateral matters. See, e.g., secs. 1(a), 1(d), 6013(d)(3). SEC. 6653. FAILURE TO PAY TAX. (a) Negligence oe Intentional Disregard op Rules and Regulations With Respect to Income op Gift Taxes. — If any part of any underpayment (as defined in subsection (cXD) of any tax imposed by subtitle A or by chapter 12 of subtitle B (relating to income taxes and gift taxes) is due to negligence or intentional disregard of rules and regulations (but without intent to defraud), there shall be added to the tax an amount equal to 5 percent of the underpayment. The subsequent amendments of this provision (by sec. 101(f)(8) of the Crude Oil Windfall Profit Tax Act of 1980, Pub. L. 96-223, 94 Stat. 229, 253, and by sec. 722(b)(1) of the Economic Recovery Tax Act of 1981, Pub. L. 97-34, 95 Stat. 172, 342) do not affect the instant case. SEC. 6653. FAILURE TO PAY TAX. (c) Definition of Underpayment. — For purposes of this section, the term \"underpayment” means— (1) Income, estate, gift, and certain excise taxes. — In the case of a tax to which section 6211 (relating to income, estate, gift, and certain excise taxes) is applicable, a deficiency as defined in that section (except that, for this purpose, the tax shown on a return referred to in section 6211(a)(1)(A) shall be taken into account only if such return was filed on or before the last day prescribed for the filing of such return, determined with regard"
},
{
"docid": "6337361",
"title": "",
"text": "chapter, gross income includes any amount received as an annuity (whether for a period certain or during one or more lives) under an annuity, endowment, or life insurance contract. Petitioners are, of course, entitled to the appropriate amount of general tax credit (sec. 42), which apparently was taken into account by respondent in his assertion of an increased deficiency and additions to tax. Respondent concedes that, if the 32-page document filed by petitioners with respondent for 1977 constitutes an income tax return for purposes of sec. 6651(a), then the return was filed timely. SEC. 6651. FAILURE TO FILE TAX RETURN OR TO PAY TAX. (a) Addition to the Tax. — In case of failure— (1) to file any return required under authority of subchapter A of chapter 61 * * * on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate. Both sides have dealt with the status of the 32-page document as a tax return but only for purposes of the sec. 6651(a) issue presented to us. Under the circumstances, we make no determination as to possible collateral implications of our decision on this issue, .and leave the parties as we find them with respect to such collateral matters. See, e.g., secs. 1(a), 1(d), 6013(d)(3). SEC. 6653. FAILURE TO PAY TAX. (a) Negligence oe Intentional Disregard op Rules and Regulations With Respect to Income op Gift Taxes. — If any part of any underpayment (as defined in subsection (cXD) of any tax imposed by subtitle A or by chapter 12 of subtitle B (relating to income taxes and gift taxes) is due to negligence or intentional disregard of"
},
{
"docid": "4812453",
"title": "",
"text": "she is exempt from the payment of Federal income tax until President Lincoln’s \"executive will” and \"the thirteenth amendment with 20 sections” are enforced. Respondent maintains that petitioner is not exempt from tax. We agree with respondent. Section 1 imposes an income tax on the taxable income of every individual who is a citizen or resident of the United States. Sec. l.l-l(a)(l), Income Tax Regs. It cannot be seriously contended that the Congress lacks the power under the 16th Amendment to impose such an income tax without apportionment, or that the 16th Amendment is unconstitutional. Brushaber v. United States, 240 U.S. 1 (1916). Petitioner’s other constitutional claims must also be rejected. On many occasions, this Court and others have rejected objections to the requirements of the Internal Revenue Code based on a taxpayer’s religious and moral beliefs which oppose the policies of the Federal Government and its expenditures of funds. E.g., Graves v. Commissioner, 579 F.2d 392 (6th Cir. 1978), affg. a Memorandum Opinion of this Court; Greenberg v. Commissioner, 73 T.C. 806, 810-811 (1980), and cases cited therein. Petitioner has given us no persuasive reason to depart from the analyses of these cases. Nor do we find any basis for concluding that Moorish Americans, as such, are exempt from Federal income tax. On this issue, we hold for respondent. II. Section 6653(b) Additions to Tax (Fraud) Respondent determined that all or part of an underpayment in petitioner’s income taxes for each of the years in issue was due to fraud. Respondent asserts in the alternative that, if for any year we do not find fraud, then petitioner is liable for additions to tax under sections 6651(a) (failure to file return) and 6653(a) (negligence) for that year. Petitioner denies that any underpayment in income tax for the years in issue was due to fraud or negligence. We agree with respondent as to fraud for each of the years in issue. For each year in issue, petitioner has an underpayment equal to her redetermined deficiency in income tax for that year. In order to sustain his determination as to the fraud"
},
{
"docid": "11030839",
"title": "",
"text": "years in issue. Petitioners have failed to meet their burden of proof, Rule 142(a); therefore, the additions to tax under section 6651(a) are proper. Section 6658(a) Finally, we must determine if the Commissioner properly determined deficiencies in petitioners’ liability for additions to tax under section 6653(a). Section 6653(a) imposes an addition to tax equal to 5 percent of the underpayment whenever an underpayment of tax is due to negligence or intentional disregard of rules or regulations. To avoid the addition to tax under section 6653(a), petitioners must show that no part of any underpayment of income taxes was due to negligence. Marcello v. Commissioner, 380 F.2d 499, 505-507 (5th Cir. 1967). The reporting position adopted by petitioners with respect to amortization and advertising expense deductions claimed regarding the Norwood sublicenses was based on the legal opinion of competent tax counsel. The offering circular prepared each year for the Norwood sublicenses offered for sale contained a legal opinion as to the tax treatment of the transactions. Although the tax opinion turned out to be substantially erroneous, we do not think that petitioners’ reliance thereon was unreasonable. See United States v. Boyle, 469 U.S. at 250-251. For this reason we decline to impose the addition to tax under section 6653(a). Based on the foregoing, Decisions will be entered under Rule 155. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954 as amended and in effect for the years in issue. All rule references are to this Court’s Rules of Practice and Procedure. Yvonne Jackson is a party to this action solely because she filed joint Federal income tax returns with her husband. For this reason all references to Jackson shall mean petitioner John L. Jackson. Timsey Barrow is a party to this action solely because she filed joint Federal income tax returns with her husband. For this reason all references to Barrow shall mean petitioner Gregory M. Barrow. Norris retained certain rights to distribute his invention through the LDS church. In 1980, the capital of Norwood was increased in the amount of $200,000 by issuing shares of"
},
{
"docid": "4812447",
"title": "",
"text": "Chabot, Judge: Respondent determined deficiencies in Federal individual income tax and additions to tax under sections 6653(b) (fraud) and 6654(a) (estimated tax) against petitioner as follows: Additions to tax Year Deficiency Sec. 6653(b) Sec. 6654(a) 1975 $2,005.07 $1,002.54 $71.99 1976 1,813.00 906.50 69.40 1977 1,994.00 997.00 71.02 By amendment to answer, respondent asserts in the alternative that, if the Court determines that petitioner’s underpayments were not due to fraud, then petitioner is liable for additions to tax under sections 6651(a) (failure to file return) and 6653(a) (negligence) as follows: Additions to tax Year Sec. 6651(a) Sec. 6653(a) 1975 $501.27 $100.25 1976 453.25 90.65 1977 498.50 99.70 The issues for decision are: (1) Whether petitioner is exempt from the payment of Federal income tax; (2) (a) Whether petitioner is liable for additions to tax under section 6653(b) (fraud), or (b) alternatively, if petitioner’s underpayments are not due to fraud, whether petitioner is liable for additions to tax under sections 6651(a) (failure to file return) and 6653(a) (negligence); (3) Whether petitioner is entitled to personal exemption deductions and credits on account of her two sons, head-of-household status, and the standard deduction (zero bracket amount for 1977); and (4) Whether petitioner is liable for additions to tax under section 6654 (estimated tax). FINDINGS OF FACT Some of the facts have been stipulated; the stipulations and the stipulated exhibits are incorporated herein by this reference. When the petition in this case was filed, petitioner resided in Baltimore, Md. Petitioner has been employed as a direct care hospital worker since 1967. During the years in issue, petitioner was employed by the State of Maryland as a direct care worker for the hospital and nursing service at Spring Grove Hospital Center. In that capacity, petitioner has received some training in matters relating to Spring Grove Hospital Center’s psychiatric care, including training in psychiatry, sociology, medicine, surgery, nursing, mental retardation, the duties of a ward clerk, and filing. During the years in issue, petitioner earned wages, and Federal income tax was withheld from such wages, in the amounts shown in table I: Table I Year Wages Tax"
},
{
"docid": "2530131",
"title": "",
"text": "tax liability for the year 1978. Petitioner was actively involved in the preparation and execution of business related documents and returns during the years in issue. There is no reason to believe that his surgery prevented him from filing his personal income tax returns while he was capable of continuing his involvement in such business activities. Rather, his failure to file returns appears to be a continuation of his ongoing pattern of delinquent return filing. Accordingly, we hold that petitioners are hable for the additions to tax under section 6651(a)(1) and section 6651(a)(2) as determined by respondent. Section 6653(a) Additions Section 6653(a) imposes an addition to tax if any part of an underpayment is due to negligence or intentional disregard of rules and regulations. Respondent alleges that the same facts which show that petitioners failure, to file their returns for the years in issue was not due to reasonable cause, show that such failures were the result of negligence or intentional disregard of rules and regulations on the part of petitioners. Petitioners make the same arguments with respect to this addition as they made with respect to the additions discussed above. We will not again review the facts which have been established in this case. The facts as discussed above demonstrate that petitioner was aware of his duty to file returns and was capable of filing such returns. Petitioners’ failure to file their returns was the continuation of an ongoing pattern of delinquent filing. The record clearly establishes that petitioners’ failure to timely file returns for the years in issue was due to negligence or intentional disregard of the rules and regulations. Accordingly, petitioners are hable for the additions to tax under section 6653(a) determined by respondent for the years in issue. Decision will be entered under Rule 155. Unless otherwise indicated, all section references are to the Internal Revenue Code as amended and in effect during the years in issue. By letter dated Nov. 21, 1983, respondent notified petitioners of their entire liability for taxes, additions to tax, and interest determined up to that time for the year 1978."
},
{
"docid": "4828611",
"title": "",
"text": "Simpson, Judge: The Commissioner determined the following deficiency in, and additions to, the petitioner’s 1974 Federal income tax: Additions to the tax Deficiency Sec. 6651(a) Sec. 6653(a) Sec. 6654 $884 $221 $44.20 $28.29 The only issues to be decided are whether the petitioner was obligated to file a Federal income tax return for 1974, and if so, whether the document submitted by her constituted a return for such year. FINDINGS OF FACT Some of the facts have been stipulated, and those facts are so found. At the time the petitioner, Lou M. Hatfield, filed the petition herein, she was a resident of Dallas, Tex. The petitioner filed a Form 1040 for 1974 with the Internal Revenue Service, but in response to all questions regarding her wages and other income, she wrote \"Object Self Incrimination.” Hence, on such return, she reported no income and showed no tax liability. Her Form W-2 for 1974 showed that she received wages of $6,958.71 on which no tax was withheld. In his notice of deficiency, the Commissioner determined that the petitioner received income in the amount of the wages reported on her Form W-2 and computed her tax liability on such income. He also determined that she had not filed a return within the meaning of section 6012 and imposed an addition to the tax under section 6651(a) for late filing. In addition, he imposed an addition to the tax under section 6653(a) of 5 percent of the underpayment since he determined that a part thereof was due to negligence or intentional disregard of rules and regulations. Finally, the Commissioner determined that the petitioner underpaid her estimated tax for 1974 and imposed an addition to the tax under section 6654 for such underpayment. During the trial of this case, the Court repeatedly asked the petitioner if she desired to adduce evidence to dispute the deficiency determinations of the Commissioner, but she refused to do so. Instead, she desired to base her case upon a \"Statement of Facts” prepared by the United States Taxpayers Union of El Cajon, Calif. Such document was admitted for the limited"
},
{
"docid": "18666500",
"title": "",
"text": "with respect to respondent’s not excluding the underpayment resulting from the disabowance of the Keogh contribution in each year. We sustain respondent’s computation under section 6653(a)(2) except that we conclude the addition should not apply with respect to interest imposed on the portion of the underpayment attributable to petitioners’ deduction of the Keogh plan contributions. Petitioners’ contend that, if we sustain the addition to tax under section 6651(a)(1), the additions to tax under section 6653(a)(1) and (2) are improper and effectively penahzes them twice for a single infraction. Petitioners’ contention is without merit. We have uniformly upheld respondent’s determinations of additions to tax under both section 6651(a)(1) and section 6653(a) where we have found both additions to be supported by the evidence with respect to the same year. Robinson’s Dairy, Inc. v. Commissioner, 302 F.2d 42 (1962), affg. 35 T.C. 601 (1961); Judge v. Commissioner, 88 T.C. 1175, 1191 (1987). However, in this case, the two additions to tax are not being imposed on a single infraction. We have upheld the section 6651(a)(1) addition because of our conclusion that petitioners’ 1981 and 1982 returns were not timely filed, and petitioners have not shown that their failure to file their 1981 and 1982 returns by the due date was due to reasonable cause and not willful neglect. We have upheld the additions to tax under section 6653(a)(1) and (2) because petitioners (quite apart from their failure to timely file their returns) negligently underreported their taxes in both 1981 and 1982 on the late filed returns. Decision will be entered under Rule 155. 50% of the interest due on the underpayments. Unless otherwise stated, all statutory references are to the Internal Revenue Code of 1954 as amended and in effect during the years here in issue. All Rule references are to the Tax Court Rules of Practice and Procedure. Prior to Dec. 31, 1982, in the case of individuals required to file Form 1040 income tax returns, sec. 1.6081-4, Income Tax Regs., provided for an automatic 2-month extension of the due date of such return. For taxable years ending on or after"
}
]
|
364442 | his employment at General Motors Corporation (“GM”). We first reviewed his claim in 1990, after he won a jury verdict on a 42 U.S.C. § 1981 claim and a judgment under Title VII. REDACTED We reversed the verdict under § 1981 in light of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and remanded those claims to the district court for dismissal. McKnight II, at 908 F.2d at 115, 117. We upheld the Title VII verdict, and affirmed McKnight’s back-pay award under that theory. We also directed the court to reconsider its refusal to reinstate McKnight and to determine, if reinstatement was not appropriate, whether McKnight should receive front pay in lieu of reinstatement. Id. We direct interested readers to McKnight I and II for the underlying facts in this case. On remand, the district court reconsidered its reinstatement order, and again declined to order GM | [
{
"docid": "4689522",
"title": "",
"text": "In order for an award to constitute meaningful punishment, the jury is permitted to take into account the size and wealth of the defendant. Simply because the amount necessary to constitute punishment and deterrence is sizable does not mean that the award of punitive damages is a windfall for the plaintiff. In the instant case, the award of punitive damages is not out of proportion to the amount of compensatory damages. It cannot be said that the amount of the award evidences that the jury was motivated by improper reasons, such as prejudice or caprice. In his motion for reinstatement, Mr. McKnight argues that prevailing Title VII claimants are presumptively entitled to reinstatement. Donnellon v. Fruehauf, 794 F.2d 598 (11th Cir.1986). The remedial purposes of the act contemplate that, in order to make the plaintiff whole, reinstatement may be granted. Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975). In that case the Supreme Court explained: It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts “may” invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and — owing to the structure of the federal judiciary — these choices are, of course, left in the first instance to the district courts. Although the district court’s discretion is equitable in nature, its judgment must be guided by the purposes of Title VII. Id. The purposes of Title VII are prophylactic: [the purpose is] to achieve equality of employment opportunities and to remove barriers that have operated in the past to favor an identifiable group of white employees over other employees, [quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971) ] ... It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers."
}
]
| [
{
"docid": "11208260",
"title": "",
"text": "suffer again from emotional distress. This type of reaction “would ensue independently of any hostility or retaliation by the employer.” Id. I am directed to reexamine the issue of reinstatement in light of the fact that the punitive damage award and the compensatory damage award have been vacated. I do not believe that those circumstances change the equation. As stated in the original decision, a primary consideration in denying reinstatement was Mr. McKnight’s express desire to work in another field. In ruling on the motions after judgment, I stated in the opinion published at 705 F.Supp. at 469: After balancing all the equities, I am convinced that reinstatement in this case would not advance the purposes of Title VII. The plaintiff asserts that he prefers not to be reinstated in his former position of manufacturing supervisor but rather in a position concerned with corporate finance or investment banking. Further, the evidence at trial established that the plaintiff has changed his career goal from manufacturing management to being a stockbroker. I conclude that the plaintiff does not have a primary interest in the position that he formerly held. That aspect of the case has not been altered by my reconsideration of the issue on this remand. The matters of compensatory and punitive damages awarded for his § 1981 claim, as well as the “acrimonious” employer-employee relationship, were viewed as lesser considerations; I still view them as such. II. FRONT PAY Is front pay an available remedy under Title VII? Yes. Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1528 (11th Cir.1991); Carter v. Sedgwick County, Kansas, 929 F.2d 1501, 1505 (10th Cir.1991); Edwards v. Occidental Chemical Corp., 892 F.2d 1442, 1449 (9th Cir.1990); Shore v. Federal Express Corp., 777 F.2d 1155, 1159 (6th Cir.1985). This list, while certainly not exhaustive, is representative of the jurisdictions which hold that front pay is available under Title VII when reinstatement is denied. Is an award of front pay appropriate in the case at bar? No. Mr. McKnight presented evidence to the jury regarding his employment future. The jury reasonably found that Mr. McKnight did"
},
{
"docid": "1484569",
"title": "",
"text": "cannot find that the district court abused his discretion in basing his refusal to reinstate McKnight on these factors. McKnight relies on Ellis v. Ringold School District, 832 F.2d 27 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990), to challenge one of the district court’s reasons for declining to reinstate him. At trial, McKnight presented extensive evidence that after his discharge, he changed his career and became a stockbroker. McKnight I, 705 F.Supp. at 469. Moreover, in his post-trial motion for reinstatement, McKnight stated that he preferred to be reinstated to a position as a corporate finance portfolio manager or analyst in GM’s New York office. See Plaintiff’s Reply Brief in Support of his Post-Verdict Motion for Reinstatement, Rec. Doc. 92, at 3-4. As we have noted, when the district court reconsidered McKnight’s reinstatement, it relied in part upon this career change to refuse to reinstate McKnight to his position as a manufacturing supervisor. McKnight III, 768 F.Supp. at 680. The court also expressed concern over McKnight’s ability to assume a position managing GM’s corporate finances. Id. In Ellis, after her discharge the plaintiff, a school teacher, worked for higher pay in a munitions factory for two years, then taught for a semester at a private school, and finally took a job as a janitor. 832 F.2d at 29. The district court did not discuss the plaintiffs request for reinstatement in its order, and the defendant argued on appeal that the plaintiff’s decision to work in industry meant that she was not entitled to reinstatement as a teacher. Id. at 30. The Third Circuit noted that this “argument would have greater force if, in fact, the court had denied reinstatement.”. Id. Moreover, the court explained that “[sjtanding alone, the fact that a plaintiff takes a job in an unrelated field to meet her obligation of mitigation should not be construed as a voluntary withdrawal from her former profession.” Id. The plaintiff asked to be reinstated to her former position as a teacher, which distinguishes Ellis from the situation in the case at bar. Further,"
},
{
"docid": "22270164",
"title": "",
"text": "POSNER, Circuit Judge. Gary McKnight brought suit under 42 U.S.C. § 1981 (which dates back to the Civil Rights Act of 1866), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming that General Motors fired him both because he is black and also in retaliation for his having filed claims of racial discrimination against the company. A jury returned a verdict for McKnight on the section 1981 claim, awarding him $110,-000 in compensatory damages (of which half represented back pay) and $500,000 in punitive damages. On the basis of the jury’s verdict, the judge entered judgment for McKnight on the Title VII count as well but declined to order him reinstated—the only relief, besides back pay, that McKnight had requested under Title VII. 705 F.Supp. 464 (E.D.Wis. 1989). General Motors appeals from the judgment against it and McKnight cross-appeals from the denial of reinstatement. While this case was before us, the Supreme Court decided Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and we must decide whether, as urged by General Motors, Patterson wipes out McKnight’s section 1981 claims. General Motors did not question the applicability of section 1981 to McKnight’s claims in the district court, and the failure to urge a point in the trial court ordinarily forfeits the right to urge it on appeal. Yet the principle that judicial decisions normally are applied retroactively, and so to cases pending on appeal when the decision was made, EEOC v. Vucitech, 842 F.2d 936, 941 (7th Cir.1988), was held in Carroll v. General Accident Ins. Co., 891 F.2d 1174, 1175 n. 1 (5th Cir.1990), to require the application of Patterson to a case—a discharge case like this—pending on appeal even though the defendant had failed to question the applicability of section 1981 in the district court. Is this holding sound? Patterson was a racial-harassment case rather than a discharge case, and the Supreme Court affirmed the court of appeals, which had held that racial harassment was not actionable under section 1981. It was only after"
},
{
"docid": "11208251",
"title": "",
"text": "The defendant urges that the reconsideration is limited to the record as it stands; the plaintiff argues that the court should reopen the record to receive additional evidentiary submissions on the questions of reinstatement and front pay. The instructions from the court of appeals do not expressly or impliedly call for additional evidence. The court’s instructions are “to reexamine the issue of reinstatement in light of [the vacation of the punitive damage award] and also in light of our discussion in the preceding paragraph of the circumstances in which denial of reinstatement is appropriate.” McKnight, 908 F.2d at 116. The court also stated that “on remand the district court may wish to consider not only whether McKnight should be reinstated but also whether, if not, he can and should receive front pay in lieu of reinstatement.” Id. at 117. Mr. McKnight argues that the change in the law occasioned by the Patterson decision had “obvious corresponding impacts on matters litigated in this case.” Plaintiffs brief in opposition at p. 2. Patterson in no way changed the remedies available under Title VII. Reinstatement and front pay were available when the case was tried and still remain possible remedies under Title VII. I also reject the plaintiffs contention that his current employment situation must be explored in order to resolve the remanded matters. The record was fully established as of the end of the trial, unless there exists a contrary instruction from the appellate court. I cannot find such an instruction in the court of appeals’ ruling. Mr. McKnight made his record regarding damages, both past and future, during the trial, and he submitted his case regarding reinstatement in post-trial briefs. A status conference was held in open court on May 16, 1991. At that time, I heard the parties’ positions as to the remanded issues and inquired of the parties whether they wanted to file written memo-randa further addressing the issues of reinstatement and front pay. Surprisingly, both sides declined. The defendant did ask for and did receive an opportunity to brief the issue of attorney’s fees. The briefs on that"
},
{
"docid": "1484558",
"title": "",
"text": "financial condition, employment status, and his relationships with existing GM employees. McKnight also argues that he was entitled to prejudgment interest, and that the district court abused its discretion in refusing to award it. On cross-appeal, GM argues that the attorneys’ fees award entered after trial pursuant to a stipulation by the parties should be reduced in light of our dismissal of McKnight’s § 1981 claims. We shall discuss each claim in turn. Reopening the Record We do not believe the district court abused its discretion in declining to reopen the record or in refusing to order reinstatement or front pay. In its initial opinion, McKnight I, the district court stated that reinstatement was not appropriate in this case because the relationship between McKnight and GM was acrimonious, and because McKnight preferred not to be reinstated in his former position, but in a corporate finance or banking position. Reinstatement was also inappropriate, it found, because It is clear that in the instant case the plaintiff has been fully compensated and thereby made whole by the award of compensatory damages, and the defendant has been properly punished by the award of punitive damages. Complete justice requires no more in the context of the remedial purpose of Title VII. 705 F.Supp. at 469. Based on this language, we found that “the district judge declined to order [reinstatement] because the relationship between McKnight and GM had been poisoned by this litigation and also because the award of $500,000 in punitive damages, on top of the compensatory damages awarded, was remedy enough.” McKnight II, 908 F.2d at 115. Because we struck the punitive and compensatory damages, we ordered the district court to reconsider its refusal to order McKnight’s reinstatement, or in lieu thereof, to award front pay. Contrary to McKnight’s present contention however, we did not order the court to reopen the record and gather new evidence on McKnight’s employment status. Our opinion was silent as to whether the record should be supplemented. That decision, together with the decision on the merits, was left to the sound discretion of the trial judge. “A discretionary"
},
{
"docid": "1484566",
"title": "",
"text": "parties would enjoy a productive and amicable working relationship,” and that the plaintiff “would not enjoy the confidence or respect of current management” was reasonable. Tennes, 944 F.2d at 381. The district court also declined to award front pay in part because the amount would be “too speculative” due to a high turn-over rate for other employees and because of the plaintiff’s weak employment history in general and with the employer in particular. Id. The jury refused to award McKnight damages for “loss of future earning capacity” caused by GM’s discrimination. See Special Verdict at 2, Rec. Doc. 83. A jury’s verdict, when § 1981 and Title VII claims are tried simultaneously, binds the judge on factual issues common to both claims. Daniels v. Pipefitters Association, 945 F.2d 906, 923 (7th Cir.1991) (citing cases), cert. denied, — U.S. -, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992). Therefore, we believe the trial judge was bound by the jury’s determination that McKnight suffered no impairment of his future earning ability. Damages for impaired future earning capacity are generally awarded in tort suits when a plaintiff’s physical injuries diminish his earning power. See, e.g., Johnson v. Director, 911 F.2d 247 (9th Cir.1990) (worker’s compensation), cert. denied sub nom., Todd Pacific Shipyards Corp. v. Director, — U.S.-, 111 S.Ct. 1582, 113 L.Ed.2d 646 (1991); Gorniak v. National Railroad Passenger Corp., 889 F.2d 481 (3d Cir.1989) (FELA suit by railroad employee). We have also affirmed loss of earning capacity awards in employment discrimination cases. See Morales v. Cadena, 825 F.2d 1095, 1100 (7th Cir.1987) (affirming award based on jury’s consideration of plaintiff’s emotional turmoil, depression, and career disruption). To recover for lost earning capacity, a plaintiff must produce “competent evidence suggesting that his injuries have narrowed the range of economic opportunities available to him.... [A] plaintiff must show that his injury has caused a diminution in his ability to earn a living.” Gorniak, 889 F.2d at 484. Thus, the jury determined that McKnight’s ability to earn from the time of trial onward was not impaired. The trial court held that reinstatement was not appropriate because"
},
{
"docid": "1484574",
"title": "",
"text": "judgment at law.” Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1426 (7th Cir.1986). McKnight’s plea for help from his “desperate” financial decision does make us question whether he expects GM to ensure his future employment success. See Brief in Support of Plaintiff’s Motion for Reconsideration, Rec.Doc. 145, and McKnight Affidavit, Rec.Doc. 146. We also note that when a party fails to provide the district court with the essential data necessary to calculate a reasonably certain front pay award, the court may deny the front pay request. Coston, 831 F.2d at 1335, & n. 6. Such information includes the amount of the proposed award, the length of time the plaintiff expects to work for the defendant, and the applicable discount rate. Id. Moreover, front pay awards, while often speculative, cannot be unduly so. The longer a proposed front pay period, the more speculative the damages become. Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th Cir.1990). Here, McKnight provides no basis for calculating an appropriate award, even for the picture of his employment history he presented at trial. The district court invited the parties to file written memoranda further addressing the issues of reinstatement and front pay at á status conference held shortly after our remand. See May 16, 1991 Transcript at 4-5. Both parties declined. McKnight’s motion for reconsideration also lacks the data the district court needed to calculate front pay. Given the speculative nature of front pay in this case, together with McKnight’s trial strategy and post-discharge’ employment history, we do not believe the district court abused its discretion in declining to order his reinstatement or to award front pay. Prejudgment Interest McKnight also challenges the district court’s refusal to order GM to pay prejudgment interest on his back pay award. “An award of prejudgment interest lies within the discretion of the trial court.” Kossman v. Calumet County, 800 F.2d 697, 702 (7th Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1294, 94 L.Ed.2d 151 (1987), appeal after remand, 849 F.2d 1027 (1988). In more recent cases, we have cabined that discretion somewhat. “The time has come, we think,"
},
{
"docid": "1484565",
"title": "",
"text": "particular case that the preferred remedy of reinstatement is not possible or is inappropriate. Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1330 (7th Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700, vacated on other grounds, 486 U.S. 1020, 108 S.Ct. 1990, 100 L.Ed.2d 223, on remand, 860 F.2d 834 (7th Cir.1988). In Coston, the two factors relied upon by the district court were hostility which it believed made reinstatement futile, and the lack of an available position for plaintiff. 831 F.2d at 1330. We also noted that genuine employer dissatisfaction with an employee’s job performance is another factor for a court to consider in its determination whether reinstatement is appropriate. Id. at 1332. Nevertheless, we stated that we are “cognizant of the legitimate concern that the hostility common to litigation not become an excuse to avoid ordering reinstatement on a general basis.... ” Id. at 1330. In Tennes, we affirmed the court’s refusal to reinstate because we found the district court’s determination that “there is no reason to believe the parties would enjoy a productive and amicable working relationship,” and that the plaintiff “would not enjoy the confidence or respect of current management” was reasonable. Tennes, 944 F.2d at 381. The district court also declined to award front pay in part because the amount would be “too speculative” due to a high turn-over rate for other employees and because of the plaintiff’s weak employment history in general and with the employer in particular. Id. The jury refused to award McKnight damages for “loss of future earning capacity” caused by GM’s discrimination. See Special Verdict at 2, Rec. Doc. 83. A jury’s verdict, when § 1981 and Title VII claims are tried simultaneously, binds the judge on factual issues common to both claims. Daniels v. Pipefitters Association, 945 F.2d 906, 923 (7th Cir.1991) (citing cases), cert. denied, — U.S. -, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992). Therefore, we believe the trial judge was bound by the jury’s determination that McKnight suffered no impairment of his future earning ability. Damages for impaired future earning capacity are"
},
{
"docid": "1484568",
"title": "",
"text": "McKnight asked for a “completely different job and to be relocated in a new city.” McKnight III, 768 F.Supp. at 679. The court found no basis to conclude that McKnight is qualified to perform the job he requests or that there is a position available. Id. at 680. Moreover, because McKnight’s career goals have changed, the district court did not believe Title VII’s purposes would be served by putting McKnight in a job “he does not want.” Id. McKnight challenges this factual finding, and argues that the court should have considered his present “desperate” financial condition. The court noted the possibility that McKnight requests reinstatement to force GM to buy him out. As we pointed out, such motivation is a valid reason for denial. McKnight II, 908 F.2d at 116. Finally, the court stated that the compensatory and punitive awards did not influence his initial decision not to reinstate McKnight given the change in career goals McKnight presented at trial. The court also repeated his concerns about the acrimonious relationship between the parties. Id. We cannot find that the district court abused his discretion in basing his refusal to reinstate McKnight on these factors. McKnight relies on Ellis v. Ringold School District, 832 F.2d 27 (3d Cir.1987), cert. denied, 494 U.S. 1005, 110 S.Ct. 1298, 108 L.Ed.2d 475 (1990), to challenge one of the district court’s reasons for declining to reinstate him. At trial, McKnight presented extensive evidence that after his discharge, he changed his career and became a stockbroker. McKnight I, 705 F.Supp. at 469. Moreover, in his post-trial motion for reinstatement, McKnight stated that he preferred to be reinstated to a position as a corporate finance portfolio manager or analyst in GM’s New York office. See Plaintiff’s Reply Brief in Support of his Post-Verdict Motion for Reinstatement, Rec. Doc. 92, at 3-4. As we have noted, when the district court reconsidered McKnight’s reinstatement, it relied in part upon this career change to refuse to reinstate McKnight to his position as a manufacturing supervisor. McKnight III, 768 F.Supp. at 680. The court also expressed concern over McKnight’s ability to"
},
{
"docid": "22270203",
"title": "",
"text": "and should receive front pay in lieu of reinstatement. We have suggested that he is entitled to neither remedy if reinstatement would cause undue friction and he has equally good employment opportunities elsewhere. And we have left open the question whether, if he would be entitled to front pay as a matter of first principles, Title VII authorizes the court to award it. To recapitulate, we affirm the judgment of the district court insofar as it awards McKnight back pay under Title VII, but otherwise we reverse the judgment with directions to dismiss McKnight’s section 1981 claims and we remand for reconsideration of his entitlement to reinstatement (or in lieu thereof to front pay) under Title VII. We shall make no award of costs in this court and Circuit Rule 36 shall not apply on remand. Affirmed in Part, Reversed in Part, and Remanded With Directions. FAIRCHILD, Senior Circuit Judge, concurring in part, dissenting in part. 42 U.S.C. § 1981, guaranteeing a racially equal “right ... to make and enforce contracts,” has been interpreted as a prohibition against racial discrimination in the making and enforcement of private contracts. Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 2593, 49 L.Ed.2d 415 (1976); Patterson v. McLean Credit Union, — U.S.-, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989). “The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms.” Patterson, 109 S.Ct. at 2372. I would think it reasonable and proper to interpret the statutory language, “right ... to make ... contracts,” applied to contracts of employment, as including the right to continue to work, in the face of racially discriminatory termination. The difficult question is whether that interpretation can and does survive Patterson. Patterson’s first holding dealt with the claim of racial harassment of an employee during the course of the employment, and the court did not expressly assert that a racially discriminatory termination would not be a violation of § 1981. Patterson reached its result as to harassment by interpreting"
},
{
"docid": "11208250",
"title": "",
"text": "(E.D.Wis.1989). The defendant appealed the judgment except for the award of attorney’s fees, and the plaintiff appealed that portion of the judgment denying reinstatement. During the pendency of the appeal, the United States Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 (1989), which holds that § 1981 was limited to providing redress for unlawful discrimination in the “making and enforcement of private contracts,” and specifically held that § 1981 afforded no relief from “problems that may arise later from the conditions of continuing employment.” On appeal, the court of appeals for the seventh circuit decided that Patterson should be applied retroactively. McKnight v. General Motors Corp., 908 F.2d 104, 110-11 (7th Cir.1990). The court of appeals directed me to dismiss Mr. McKnight’s § 1981 claims. The court also remanded “for reconsideration of his entitlement to reinstatement (or in lieu thereof to front pay) under Title VII.” Id. at 117. The first issue raised here by the parties is the scope of consideration on remand. The defendant urges that the reconsideration is limited to the record as it stands; the plaintiff argues that the court should reopen the record to receive additional evidentiary submissions on the questions of reinstatement and front pay. The instructions from the court of appeals do not expressly or impliedly call for additional evidence. The court’s instructions are “to reexamine the issue of reinstatement in light of [the vacation of the punitive damage award] and also in light of our discussion in the preceding paragraph of the circumstances in which denial of reinstatement is appropriate.” McKnight, 908 F.2d at 116. The court also stated that “on remand the district court may wish to consider not only whether McKnight should be reinstated but also whether, if not, he can and should receive front pay in lieu of reinstatement.” Id. at 117. Mr. McKnight argues that the change in the law occasioned by the Patterson decision had “obvious corresponding impacts on matters litigated in this case.” Plaintiffs brief in opposition at p. 2. Patterson in no way changed"
},
{
"docid": "11208249",
"title": "",
"text": "DECISION AND ORDER ON REMAND MYRON L. GORDON, Senior District Judge. In 1988, Gary McKnight prevailed on his claim that the defendant, General Motors Corporation, unlawfully discharged him from his employment because of his race and in retaliation for his prior complaints of race discrimination. Mr. McKnight pressed his case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981, which is based on the Civil Rights Act of 1866. A jury heard his § 1981 claim, and this court resolved the Title VII dispute. Judgment was entered in the plaintiff’s favor in the amount of $610,000.00, plus attorney’s fees. Specifically, the jury awarded $55,-000.00 in back pay, another $55,000.00 for emotional distress, and $500,000.00 as punitive damages. This court denied Mr. McKnight’s post-trial motion for reinstatement to his former position as a manufacturing supervisor and his alternative request for reinstatement to a different job in a different location but still within the General Motors Corporation. McKnight v. General Motors Corp., 705 F.Supp. 464 (E.D.Wis.1989). The defendant appealed the judgment except for the award of attorney’s fees, and the plaintiff appealed that portion of the judgment denying reinstatement. During the pendency of the appeal, the United States Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d 132 (1989), which holds that § 1981 was limited to providing redress for unlawful discrimination in the “making and enforcement of private contracts,” and specifically held that § 1981 afforded no relief from “problems that may arise later from the conditions of continuing employment.” On appeal, the court of appeals for the seventh circuit decided that Patterson should be applied retroactively. McKnight v. General Motors Corp., 908 F.2d 104, 110-11 (7th Cir.1990). The court of appeals directed me to dismiss Mr. McKnight’s § 1981 claims. The court also remanded “for reconsideration of his entitlement to reinstatement (or in lieu thereof to front pay) under Title VII.” Id. at 117. The first issue raised here by the parties is the scope of consideration on remand."
},
{
"docid": "11208264",
"title": "",
"text": "the Title VII and § 1981 claims “involve a common core of facts,” and the theories cannot be viewed as a series of “discrete claims.” Graham v. Sauk Prairie Police Commission, 915 F.2d 1085, 1109 (7th Cir.1990). Therefore, the “fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.” Id. Plaintiff’s counsel is requested to prepare an appropriate judgment and to submit it to the court after first providing defendant’s counsel with a copy. Therefore, IT IS ORDERED that upon remand from the court of appeals for the seventh circuit, Mr. McKnight’s claims under 42 U.S.C. § 1981 be and hereby are dismissed. IT IS ALSO ORDERED that the defendant, General Motors, motion to limit the scope of reconsideration upon remand to the trial record be and hereby is granted. IT IS FURTHER ORDERED that after reconsideration, Mr. McKnight’s request for reinstatement to a position within the defendant corporation, General Motors, be and hereby is denied. IT IS FURTHER ORDERED that Mr. McKnight’s request for front pay in lieu of reinstatement be and hereby is denied. IT IS FURTHER ORDERED that the defendant’s motion to reduce the award of plaintiff’s attorney’s fees be and hereby is denied. IT IS FURTHER ORDERED that each party shall bear its own costs in connection with this order on remand. No additional attorney’s fees will be granted in connection with this order on remand. ON MOTION FOR RECONSIDERATION On July 15, 1991, the court issued a “Decision And Order On Remand” in the above-captioned action. In that order, the court ruled: (1) that the plaintiff, Gary MeKnight’s claims under 42 U.S.C. § 1981 be dismissed; (2) that the defendant, General Motors Corporation’s motion to limit the scope of reconsideration upon remand be granted; (3) that Mr. McKnight’s request for reinstatement to a position within the defendant corporation be denied; (4) that Mr. McKnight’s request for front pay in lieu of reinstatement be denied; (5) that the defendant’s motion to reduce the award of plaintiff’s attorney’s fees be denied; and (6) that each party bear"
},
{
"docid": "1484559",
"title": "",
"text": "award of compensatory damages, and the defendant has been properly punished by the award of punitive damages. Complete justice requires no more in the context of the remedial purpose of Title VII. 705 F.Supp. at 469. Based on this language, we found that “the district judge declined to order [reinstatement] because the relationship between McKnight and GM had been poisoned by this litigation and also because the award of $500,000 in punitive damages, on top of the compensatory damages awarded, was remedy enough.” McKnight II, 908 F.2d at 115. Because we struck the punitive and compensatory damages, we ordered the district court to reconsider its refusal to order McKnight’s reinstatement, or in lieu thereof, to award front pay. Contrary to McKnight’s present contention however, we did not order the court to reopen the record and gather new evidence on McKnight’s employment status. Our opinion was silent as to whether the record should be supplemented. That decision, together with the decision on the merits, was left to the sound discretion of the trial judge. “A discretionary order will only be set aside if it is clear that no reasonable person could concur in the trial court’s assessment.” Tennes v. Commonwealth, 944 F.2d 372, 381 (7th Cir.1991). “The district court’s decision must strike us as fundamentally wrong for an abuse of discretion to occur.” Anderson v. United Parcel Service, 915 F.2d 313, 315 (7th Cir.1990). The district judge declined to reopen the record for several reasons. He noted correctly that our opinion did not require it. McKnight III, 768 F.Supp. at 678. He also explained that Patterson did not alter the remedies available under Title VII. Finally, he noted that McKnight had a full opportunity at trial to present evidence of his past and future damages and had failed to provide any authority for his position that the district judge was required to reopen the record on remand. McKnight’s reliance on Grafenhain v. Pabst Brewing Co., 870 F.2d 1198, 1201 (7th Cir.1989) and Welborn v. Reynolds Metals Co., 868 F.2d 389 (11th Cir.1989), for the proposition that the district court was required"
},
{
"docid": "1484556",
"title": "",
"text": "BAUER, Chief Judge. In this appeal, we review for the second time Gary McKnight’s claim that he should be reinstated to his employment at General Motors Corporation (“GM”). We first reviewed his claim in 1990, after he won a jury verdict on a 42 U.S.C. § 1981 claim and a judgment under Title VII. McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990) (“McKnight II”). On the § 1981 claim, the jury awarded McKnight $55,000 in compensatory damages, $55,000 in back pay, and $500,000 in punitive damages. The jury awarded no damages based on impairment of future earning capacity. On the Title VII claim tried before the court, the judge declined to order GM to reinstate McKnight. The only other relief McKnight requested under Title VII was back pay, which was rendered superfluous by the jury’s $55,000 back-pay award. McKnight v. General Motors Corp., 705 F.Supp. 464, 468 (E.D.Wis.1989) (“McKnight I”). We reversed the verdict under § 1981 in light of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and remanded those claims to the district court for dismissal. McKnight II, at 908 F.2d at 115, 117. We upheld the Title VII verdict, and affirmed McKnight’s back-pay award under that theory. We also directed the court to reconsider its refusal to reinstate McKnight and to determine, if reinstatement was not appropriate, whether McKnight should receive front pay in lieu of reinstatement. Id. We direct interested readers to McKnight I and II for the underlying facts in this case. On remand, the district court reconsidered its reinstatement order, and again declined to order GM to reinstate McKnight or to award front pay. The court also denied McKnight’s motion to reconsider that decision. Written opinions on both decisions were published in McKnight v. General Motors Corp., 768 F.Supp. 675 (E.D.Wis.1991) (“McKnight III”). McKnight appeals, arguing that the court abused its discretion in denying the relief he requests. He also contends that the court disobeyed our instructions in McKnight II on remand because it did not reopen the record and take evidence on McKnight’s then-current"
},
{
"docid": "22270202",
"title": "",
"text": "remedy. This court has never addressed the question whether front pay can be awarded under Title VII. Hunter v. Countryside Ass’n for the Handicapped, Inc., 710 F.Supp. 233, 237 n. 5 (N.D.Ill.1989). Our decision holding that front pay is available in cases under the Age Discrimination in Employment Act, McNeil v. Economics Laboratory, Inc., 800 F.2d 111, 118 (7th Cir.1986); see also Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir.1990); EEOC v. Prudential Federal Savings & Loan Ass’n, 741 F.2d 1225, 1231-33 (10th Cir.1984), vacated on other grounds, 469 U.S. 1154, 105 S.Ct. 896, 83 L.Ed.2d 913 (1985), cannot be regarded as dispositive of the issue under Title VII, since the remedial schemes of the two statutes differ markedly and the ADEA’s is the more generous, by far. The present case is hardly the one in which to resolve the issue, since it has not been briefed and argued. But on remand the district court may wish to consider not only whether McKnight should be reinstated but also whether, if not, he can and should receive front pay in lieu of reinstatement. We have suggested that he is entitled to neither remedy if reinstatement would cause undue friction and he has equally good employment opportunities elsewhere. And we have left open the question whether, if he would be entitled to front pay as a matter of first principles, Title VII authorizes the court to award it. To recapitulate, we affirm the judgment of the district court insofar as it awards McKnight back pay under Title VII, but otherwise we reverse the judgment with directions to dismiss McKnight’s section 1981 claims and we remand for reconsideration of his entitlement to reinstatement (or in lieu thereof to front pay) under Title VII. We shall make no award of costs in this court and Circuit Rule 36 shall not apply on remand. Affirmed in Part, Reversed in Part, and Remanded With Directions. FAIRCHILD, Senior Circuit Judge, concurring in part, dissenting in part. 42 U.S.C. § 1981, guaranteeing a racially equal “right ... to make and enforce contracts,” has been interpreted as"
},
{
"docid": "1484557",
"title": "",
"text": "132 (1989), and remanded those claims to the district court for dismissal. McKnight II, at 908 F.2d at 115, 117. We upheld the Title VII verdict, and affirmed McKnight’s back-pay award under that theory. We also directed the court to reconsider its refusal to reinstate McKnight and to determine, if reinstatement was not appropriate, whether McKnight should receive front pay in lieu of reinstatement. Id. We direct interested readers to McKnight I and II for the underlying facts in this case. On remand, the district court reconsidered its reinstatement order, and again declined to order GM to reinstate McKnight or to award front pay. The court also denied McKnight’s motion to reconsider that decision. Written opinions on both decisions were published in McKnight v. General Motors Corp., 768 F.Supp. 675 (E.D.Wis.1991) (“McKnight III”). McKnight appeals, arguing that the court abused its discretion in denying the relief he requests. He also contends that the court disobeyed our instructions in McKnight II on remand because it did not reopen the record and take evidence on McKnight’s then-current financial condition, employment status, and his relationships with existing GM employees. McKnight also argues that he was entitled to prejudgment interest, and that the district court abused its discretion in refusing to award it. On cross-appeal, GM argues that the attorneys’ fees award entered after trial pursuant to a stipulation by the parties should be reduced in light of our dismissal of McKnight’s § 1981 claims. We shall discuss each claim in turn. Reopening the Record We do not believe the district court abused its discretion in declining to reopen the record or in refusing to order reinstatement or front pay. In its initial opinion, McKnight I, the district court stated that reinstatement was not appropriate in this case because the relationship between McKnight and GM was acrimonious, and because McKnight preferred not to be reinstated in his former position, but in a corporate finance or banking position. Reinstatement was also inappropriate, it found, because It is clear that in the instant case the plaintiff has been fully compensated and thereby made whole by the"
},
{
"docid": "1484575",
"title": "",
"text": "at trial. The district court invited the parties to file written memoranda further addressing the issues of reinstatement and front pay at á status conference held shortly after our remand. See May 16, 1991 Transcript at 4-5. Both parties declined. McKnight’s motion for reconsideration also lacks the data the district court needed to calculate front pay. Given the speculative nature of front pay in this case, together with McKnight’s trial strategy and post-discharge’ employment history, we do not believe the district court abused its discretion in declining to order his reinstatement or to award front pay. Prejudgment Interest McKnight also challenges the district court’s refusal to order GM to pay prejudgment interest on his back pay award. “An award of prejudgment interest lies within the discretion of the trial court.” Kossman v. Calumet County, 800 F.2d 697, 702 (7th Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1294, 94 L.Ed.2d 151 (1987), appeal after remand, 849 F.2d 1027 (1988). In more recent cases, we have cabined that discretion somewhat. “The time has come, we think, to generalize, and to announce a rule that prejudgment interest should be presumptively available to victims of federal law violations.” Gorenstein Enterprises v. Quality Care-USA, 874 F.2d 431, 436 (7th Cir.1989). “Title VII authorizes pre-judgment interest as part of the backpay remedy in suits against private employers.” Loeffler v. Frank, 486 U.S. 549, 557, 108 S.Ct. 1965, 1970, 100 L.Ed.2d 549 (1988). “Indeed, the Supreme Court has said that it is a ‘normal incident’ of relief in Title VII suits.” EEOC v. Gurnee Inn Corp., 914 F.2d 815, 819 (7th Cir.1990) (quoting Loeffler, 486 U.S. at 558, 108 S.Ct. at 1971). Nevertheless, in Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir.1989), we refused to grant a plaintiffs request for prejudgment interest because the plaintiff never presented the issue to the district court, and raised it for the first time on appeal. We held that “at a minimum, a party must request the interest in a post-trial motion if he or she has failed to plead the relief in the original complaint.” Brooms, 881"
},
{
"docid": "11208268",
"title": "",
"text": "submissions of counsel in an effort to comply with the instructions of the appellate court to “reexamine the issue of reinstatement in light of [the vacation of the punitive damage award] and also in light of our discussion in the preceding paragraph of the circumstances in which denial of reinstatement is appropriate.” McKnight v. General Motors Corp., 908 F.2d 104, 116 (7th Cir.1990). As a result of that inquiry, I declined to reopen the record to receive additional evi-dentiary submissions concerning the plaintiffs current employment situation. Furthermore, at a post-remand status conference held in open court on May 16, 1991, the parties were expressly invited to file written memoranda addressing the issues of reinstatement and front pay on remand. At that time, both parties declined the court’s invitation. Through its motion to reconsider, Mr. McKnight asks the court now to receive additional evidence which he perceives as relevant to the issue of reinstatement. Mr. McKnight asks the court to reexamine its decision in light of his current “desperate” financial situation. He also claims that the two individuals who were instrumental in causing his termination are no longer employed by the General Motors Corporation. I believe that the court of appeals did not instruct me to reopen the trial and to receive new evidence on the plaintiff’s “present condition.” Also, I am not convinced that this information was totally unavailable to the plaintiff when the issue was first submitted to the court for consideration. It is arguable that Mr. McKnight presented a “success” story to the jury— electing to impress the jurors with his entitlement to large damages, both compensatory and punitive. He now would reverse his field and seek to demonstrate his impoverished condition at a reopened trial. Consequently, in view of my understanding of the court of appeal’s directions, and in the absence of any cogent reasons to reopen the trial, I decline to change my ruling regarding reinstatement. The plaintiff next requests that the court issue an order requiring the defendant to pay postjudgment interest at the rate of fifteen percent pursuant to Local Rule 9, § 9.05,"
},
{
"docid": "12259017",
"title": "",
"text": "on the basis of his race in refusing to train him to use a particular kind of lathe and in failing to recall him to work in order of seniority. Artis also claimed that the company failed to recall him in retaliation for a discrimination charge he filed in 1971. The union, Artis alleged, acquiesced in Clearing’s conduct. Procedural skirmishing followed. The district court awarded summary judgment for the union on all counts and summary judgment for Clearing on the retaliation claim, decisions that Artis has not appealed. The court also dismissed the failure to train claim under section 1981 for failure to state a claim. Artis has not appealed this decision either. The court then held a joint bench and jury trial: the failure to recall claim went to the jury under section 1981, and both the failure to recall and failure to train claims were tried to the judge under Title YII. The jury found for Artis and awarded compensatory and punitive damages. After the trial, the district court reconsidered its original decision to allow the failure to recall claim to go to the jury under section 1981. The court decided, in light of this court’s decision in McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990), cert, denied, — U.S.-, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991), that to allege a failure to recall does not state a claim under section 1981 and vacated the jury’s verdict. The court also found for Clearing on Artis’ Title VII failure to train claim. Nonetheless, the court found for Artis on his Title VII failure to recall claim and awarded reinstatement, backpay, prejudgment interest, attorney’s fees (with a 1.25 multiplier) and costs. Clearing appeals from the judgment under Title VII, claiming that there was insufficient evidence, that the judge improperly relied on a vacated jury verdict and that, in any event, the verdict of the jury was tainted by numerous trial errors. Ar-tis cross-appeals, arguing that failure to recall is a violation of section 1981 and that the jury’s verdict should be reinstated. We affirm in all respects. I."
}
]
|
704897 | F.2d 626, 630-31 (9th Cir.1987). B. Copyright Law Copyright laws are enacted pursuant to Article 1, Section 8 of the Constitution, which provides that “[t]he Congress shall have Power ... to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The elements of a copyright infringement claim are: (1) ownership of a valid copyright and (2) copying of expression protected by that copyright. See 11 U.S.C. § 106(1); Triad Sys. Corp. v. Southeastern Express Co., 64 F.3d 1330, 1335 (9th Cir.1995). To be liable for direct infringement, one must “actively engage in” and “directly cause” the copying. See REDACTED There is no statutory rule of liability for contributory infringement. However, courts recognize such liability when the defendant “with knowledge of the in fringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2nd Cir.1971). “Such participation must be substantial.” Religious Tech. Ctr., 907 F.Supp. at 1361. The party alleging contributory infringement must show “(1) direct infringement by a primary in-fringer, (2) knowledge of the infringement, and (3) material contribution to the infringement.” Metro-Goldwyn-Mayer-Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1160 (9th Cir.2004). A defendant may be liable under a vicarious liability theory if the plaintiff demonstrates “(1) direct infringement by a primary party, (2) | [
{
"docid": "10951118",
"title": "",
"text": "cannot be based on a theory of direct infringement, where knowledge is irrelevant. The court does not find workable a theory of infringement that would hold the entire Internet Hable for activities that cannot reasonably be deterred. BilKons of bits of data flow through the Internet and are necessarily stored on servers throughout the network and it is thus practically impos sible to screen out infringing bits from nonin-fringing bits. Because the court cannot see any meaningful distinction (without regard to knowledge) between what Netcom did and what every other Usenet server does, the court finds that Netcom cannot be held hable for direct infringement. Cf. IITF Report at 69 (noting uncertainty regarding whether BBS operator should be directly hable for reproduction or distribution of files uploaded by a subscriber). 2. Contributory Infringement Netcom is not free from habihty just because it did not directly infringe plaintiffs’ works; it may still be liable as a contributory infringer. Although there is no statutory rule of habihty for infringement committed by others, [t]he absence of such express language in the copyright statute does not preclude the imposition of habihty for copyright infringement on certain parties who have not themselves engaged in the infringing activity. For vicarious habihty is imposed in virtually ah areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984) (footnote omitted). Liability for participation in the infringement wih be estabhshed where the defendant, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971). a. Knowledge of Infringing Activity Plaintiffs insist that Netcom knew that Erlich was infringing their copyrights at least after receiving notice from plaintiffs’ counsel indicating that Erlich had posted copies of their works onto a.r.s. through Net-corn’s system. Despite"
}
]
| [
{
"docid": "7844510",
"title": "",
"text": "IN PART to the extent that Defendants’ counterclaims are deemed moot. F. Third-Party Liability of Tip Petcha, Wongchaiwat, and BKT Defendants contend that because Plaintiffs FAC does not allege that Tip Petcha or Wongchaiwat have directly infringed, they are at most, secondarily liable for any alleged infringement, and so, subject to only third-party liability. (Defs.’ Mot. 4, 13.) Similarly, Defendants claim that BKT is not liable for any alleged infringement because BKT “does not conduct any business.” (Defs.’ Mot. 6.) 1. Contributory and Inducement Copyright Infringement “Although the Copyright Act does not expressly impose liability on anyone other than direct infringers, courts have recognized that in certain circumstances, vicarious or contributory liability will be imposed.” Adobe Sys., Inc. v. Canus Prods., Inc., 173 F.Supp.2d 1044, 1048 (C.D.Cal.2001). “Liability for contributory copyright infringement attaches when one who, with knowledge of the infringing activity, causes or materially contributes to the infringing conduct of another.” Perfect 10, Inc. v. Cybernet Ventures, Inc. (“Cybernet Ventures”), 213 F.Supp.2d 1146, 1169 (C.D.Cal.2002) (citing A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir.2001)); see Religious Tech. Center v. Netcom On-Line Comm., Servs., 907 F.Supp. 1361, 1373 (N.D.Cal. 1995) (holding that “liability for participation in the infringement will be established where the defendant with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another”). Contributory liability for copyright infringement, therefore, requires showing that “the de fendant had reasonable knowledge of specific infringing [acts].” See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (“MGM, Inc.”), 380 F.3d 1154, 1160 (9th Cir.2004) (citing A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir.2001)); see Adobe Sys., Inc., 173 F.Supp.2d at 1048 (“Contributory infringement requires that the secondary infringer know or have reason to know of direct infringement”). “The standard for the knowledge requirement is objective, and is satisfied where the defendant knows or has reason to know of the infringing activity.” Cybernet Ventures, Inc., 213 F.Supp.2d at 1169. Inducement of infringement requires “active steps ... taken to encourage direct infringement.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (“Grokster,"
},
{
"docid": "13405199",
"title": "",
"text": "Page in its hard drive. Although plaintiff correctly points out that Northwest provides a service somewhat broader than the service provided by the Internet access provider in Religious Technology Center, the court nevertheless finds that Northwest only provided the means to copy, distribute or display plaintiffs works, much like the owner of a pubhc copying machine used by a third party to copy protected material. Like a copying machine owner, Northwest did not actually engage in any of these activities itself. Accordingly, Northwest may not be held liable for direct infringement. 2. Contributory Infringement Although Northwest did not directly infringe plaintiffs works, it may be liable for contributory infringement. Liability for contributory infringement will be imposed when a defendant, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996) (quoting Gershwin Publishing Corp., 443 F.2d at 1162). Participation by the defendant must be substantial. Apple Computer, Inc. v. Microsoft Corp., 821 F.Supp. 616, 625 (N.D.Cal.1993), aff'd, 35 F.3d 1435 (9th Cir.1994). Based on the evidence presented, it is unclear whether Northwest knew that any material on NAFED’s Web Page was copyrighted and, if it did know, when it knew. The degree to which Northwest monitored, controlled, or had the ability to monitor or control the contents of NAFED’s Web Page is also unclear. These disputed issues of material fact preclude summary judgment for either party on this theory of liability. 3. Vicarious Liability Plaintiff does not claim, either in its complaint or briefs, that Northwest is vicariously hable for copyright infringement. Nevertheless, the court will briefly address this issue since Northwest seeks summary judgement in its favor on this theory of liability. “[A] defendant is vicariously hable for copyright infringement if it has ‘the right and abihty to supervise the infringing activity and also has a direct financial interest in such activities.’ ” Hard Rock Cafe Licensing Corp. v. Concession Services, Inc., 955 F.2d 1148, 1150 (7th Cir.1992) (quoting Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 448 F.2d 1159, 1162"
},
{
"docid": "7033995",
"title": "",
"text": "of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one accountable for the actions of another. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 435, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (footnote omitted). Even though ‘“the lines between direct infringement, contributory infringement and vicarious liability are not clearly drawn’ ” distinctions can be made between them. Id. at n. 17 (quoting Universal City Studios, Inc. v. Sony Corp., 480 F.Supp. 429, 457-58 (C.D.Cal.1979)). Vicarious liability is grounded in the tort concept of respondeat superior, and contributory infringement is founded in the tort concept of enterprise liability. See Demetriades v. Kaufmann, 690 F.Supp. 289, 292 (S.D.N.Y. 1988). “[BJenefit and control are the signposts of vicarious liability, [whereas] knowledge and participation [are] the touchstones of contributory infringement.” Id. at 293. Liability for contributory infringement is imposed when “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Publ’g Corp. v. Columbia Artists Mgt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971). Thus, to prevail on its claim of contributory infringement, plaintiff must first be able to establish that the conduct defendants allegedly aided or encouraged could amount to infringement. See Subafilms, Ltd. v. MGM-Pathe Comms. Co., 24 F.3d 1088, 1092 (9th Cir.1994). Defendants argue that they have not contributed to copyright infringement by those who posted the Handbook on websites nor by those who browsed the websites on their computers. 1. Can the Defendants Be Liable Under a Theory of Contributory Infringement for the Actions of Those Who Posted the Handbook on the Three Websites? a. Did those who posted the Handbook on the websites infringe plaintiff’s copyright? During a hearing on the motion to vacate the temporary restraining order, defendants accepted plaintiffs proffer that the three websites contain the material which plaintiff alleges is copyrighted. Therefore, plaintiff at trial is likely to establish that those who have posted the material on the three websites are directly infringing plaintiffs copyright. b. Did the defendants induce, cause or"
},
{
"docid": "18392116",
"title": "",
"text": "or lending. Section 501(a) provides that anyone who violates any of the exclusive rights of the copyright owner, as provided in Section 106, is an infringer of the copyright. In order to establish copyright infringement, a Plaintiff must prove (1) his ownership of a copyright and (2) that the Defendant “copied” Plaintiffs’ work. Ferguson v. National Broadcasting Company, Inc., 584 F.2d 111, 113 (5th Cir. 1978) (citing 3 M. Nimmer, Copyright §§ 13.01 and 13.-02(A) (1978)). Additionally, a Defendant may be held liable as a contributory infringer if he acts with knowledge of copyright infringing activity to induce, cause, or materially contribute to the infringing conduct of another. Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2nd Cir. 1971). See Universal City Studios, Inc. v. Sony Corporation of America, 659 F.2d 963, 975 (9th Cir. 1981). Because there is ordinarily little or no direct evidence of copying, a plaintiff may prove this element by showing that the defendant had access to the copyrighted work and that the defendant’s work is substantially similar to the plaintiff’s work. Ferguson v. National Broadcasting Company, Inc., 584 F.2d at 113 (citing 3 M. Nimmer, Copyright § 13.01[B] (1978)). Plaintiffs argue that the record in the case at bar shows that Defendants McWilliams and Lifschutz had access to Plaintiffs’ plans and specifications, that the plans and specifications created by Lance, Larcade and Bechtol and Travis-Braun are substantially similar to the plans and specifications of Plaintiffs, and that therefore there exists a genuine issue of fact with respect to infringing activity by Defendants, Lifschutz, McWilliams, Ingram Square Ltd. and Texas Southwest Developers No. 1. The Court finds missing a significant step in the logical progression of Plaintiffs’ argument. Although copying may be established by proof of similarity and access by a defendant, this presumption applies only to works created by the defendant. There is no suggestion anywhere in the record in this case that Defendants McWilliams, Lifschutz, Ingram Square Ltd. or Texas Southwest Developers No. 1 created any plans or specifications for the Solo Serve store in Ingram Square Shopping Center. While"
},
{
"docid": "13131228",
"title": "",
"text": "used for copyright violations could not have some indirect liability, such as contributory or vicarious liability. But such extensions of liability would require a showing of additional elements such as knowledge coupled with inducement or supervision coupled with a financial interest in the illegal copying. The Copyright Act does not specifically provide for such extended liability, instead describing only the party who actually engages in infringing conduct — the one who directly violates the prohibitions. Yet under general principles of law, vicarious liability or contributory liability may be imposed: The absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity. For vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another. Sony, 464 U.S. at 435, 104 S.Ct. 774. Under a theory of contributory infringement, “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another” is liable for the infringement, too. Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971) (footnote omitted). Under a theory of vicarious liability, a defendant who “has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities” is similarly liable. Id. But to establish direct liability under §§ 501 and 106 of the Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner. The Netcom court described this nexus as requiring some aspect of volition or causation. 907 F.Supp. at 1370. Indeed, counsel for both parties agreed at oral argument that a copy"
},
{
"docid": "17917303",
"title": "",
"text": "Inc. v. Mark-Fi Records, Inc., 256 F.Supp. 399, 403 (S.D.N.Y.1966). Below I examine the differences between these two forms of indirect infringement. 1. Vicarious Liability A defendant may be vicariously liable for the infringing acts of others when two prerequisites are met: (1) the defendant has the right and ability to supervise the infringing activity of another; and (2) the defendant has an obvious and direct financial interest in exploitation of the copyrighted materials. Gershwin, 443 F.2d at 1161-62; see also Southern Bell Tel. & Tel. v. Association Tel. Directory, 756 F.2d 801, 811 (11th Cir.1985); RCA/Ariola Int'l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 781 (8th Cir.1988); Columbia Pictures Inc. v. Redd Horne, Inc., 749 F.2d 154, 160-61 (3d Cir.1984); Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir.1963). Cf. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1553 (9th Cir.) (parent corporation may be liable for infringement committed by its subsidiary if there is a substantial and continuing connection between the two with respect to the infringing acts), cert. denied, 494 U.S. 1017, 110 S.Ct. 1321, 108 L.Ed.2d 496 (1990). One need not have knowledge that the direct infringer is engaging in infringing conduct to be held vicariously liable. Gershwin, 443 F.2d at 1162; 3 Nimmer § 12.04[A], at 12-63 n. 14 (collecting cases). 2. Contributory Liability A defendant may be contribu-torily liable for the infringing acts of another when “with knowledge of the infringing activity, [the defendant] induces, causes, or materially contributes to the infringing conduct of another.” Gershwin, 443 F.2d at 1162. See also Cable/Home Communication v. Network Productions, 902 F.2d 829, 845-46 (11th Cir.1990). “[J]ust as benefit and control are the signposts of vicarious liability, so are knowledge and participation the touchstones of contributory infringement.” Demetriades, 690 F.Supp. at 293. “The standard of knowledge is objective: to know or have reason to know that the product in question is copyrighted and that defendants were violating the copyright laws.” Cable/Home, 902 F.2d at 845-46. One must make more than a “mere quantitative contribution” to the primary infringement in"
},
{
"docid": "3332493",
"title": "",
"text": "249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. Copyright Infringement A civil action under the Copyright Act must be “commenced within three years after the claim accrued.” 17 U.S.C. § 507(b). A cause of action accrues when a plaintiff knows of the infringement or is chargeable with such knowledge. Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994). Because each act of infringement is a distinct harm, the statute of limitations bars infringement claims that accrued more than three years before suit was filed, but does not preclude infringement claims that accrued within the statutory period. Id.; Stone v. Williams, 970 F.2d 1043, 1049-50 (2d Cir. 1992); Hoste v. Radio Corp. of Am., 654 F.2d 11, 11 (6th Cir.1981) (per curiam); Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1110-11 (2d Cir.1977). It is undisputed that Bridgeport had actual knowledge of its infringement claims with respect to “99 Problems” more than three years before this action was filed and, therefore, claims arising prior to May 4, 1998, are barred by the statute of limitations. For this reason, our focus must be on whether Bridgeport established any acts within the period for which UPIP could be held liable as a direct in-fringer, a contributory infringer, or as one vicariously liable for the acts of another. Liability for direct infringement arises from the violation of any one of the exclusive rights of a copyright owner. 17 U.S.C. § 501(a). The owner of copyright in a musical composition has the exclusive right to, and to authorize others to, reproduce, distribute, perform, display, and prepare derivative works from the copyrighted composition. 17 U.S.C. § 106. Liability for contributory infringement is based on the defendant’s relationship to the direct infringement. Ez-Tixz, Inc. v. Hit-Tix, Inc., 919 F.Supp. 728, 732-33 (S.D.N.Y.1996). Contributory infringement occurs when one, “with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971). A defendant can be held vicariously hable if he enjoys a direct financial benefit from"
},
{
"docid": "4811544",
"title": "",
"text": "to the question of whether MP3tunes is secondarily liable for storing material at the direction of its users. EMI contends that MP3tunes is either contributorily or vicariously liable for that activity. EMI also claims that MP3tunes is directly liable for 1) songs sideloaded by MP3tunes executives in the course of their employment, 2) songs stored using a master copy, and 3) album cover art displayed on MP3tunes.com. A. Contributory Infringement Claim Secondary liability for copyright infringement is based on a showing of direct infringement by a third party for whom the secondary infringer is liable. As one commentator notes, “[due] to the far-flung nature of much alleged infringement on the Internet, facilitated by software that usually has both infringing and noninfringing applications, contributory infringement has become increasingly important ....” William F. Patry, Patry on Copyright § 21:42. Contributory liability is premised on “personal conduct that encourages or assists the infringement.” See Arista Records LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir.2010); see also Arista Records LLC v. Lime Grp. LLC, 715 F.Supp.2d 481, 505-06 (S.D.N.Y.2010). Contributory infringement by personal conduct arises through “intentionally inducing or encouraging direct infringement.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005); see also Faulkner v. Nat’l Geo. Enters., 409 F.3d 26, 40 (2d Cir.2005) (“One who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, may be held liable.”). To establish the underlying direct infringement, a plaintiff must prove (1) ownership of a valid copyright and (2) unauthorized copying by a third party. See Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 260 (2d Cir.2005). Additionally, a plaintiff must demonstrate compliance with § 411 of the Copyright Act, which requires preregistration or registration for U.S. copyrights as a prerequisite for suit. 17 U.S.C. § 411(a); Reed Elsevier Inc. v. Muchnick, — U.S. -, 130 S.Ct. 1237, 1245, 176 L.Ed.2d 18 (2010). Through declarations of two of its employees, EMI presented evidence of ownership and registration of 3,189 sound recordings, 562 musical compositions"
},
{
"docid": "3332494",
"title": "",
"text": "statute of limitations. For this reason, our focus must be on whether Bridgeport established any acts within the period for which UPIP could be held liable as a direct in-fringer, a contributory infringer, or as one vicariously liable for the acts of another. Liability for direct infringement arises from the violation of any one of the exclusive rights of a copyright owner. 17 U.S.C. § 501(a). The owner of copyright in a musical composition has the exclusive right to, and to authorize others to, reproduce, distribute, perform, display, and prepare derivative works from the copyrighted composition. 17 U.S.C. § 106. Liability for contributory infringement is based on the defendant’s relationship to the direct infringement. Ez-Tixz, Inc. v. Hit-Tix, Inc., 919 F.Supp. 728, 732-33 (S.D.N.Y.1996). Contributory infringement occurs when one, “with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.” Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971). A defendant can be held vicariously hable if he enjoys a direct financial benefit from the infringing activity and “has the right and ability to supervise” the infringing activity. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004) (internal quotation marks and citation omitted). B. Analysis The district court seems to have assumed that UPIP granted a mechanical license for use of the composition “99 Problems” on the “Home Invasion” album and received royalties from the sale of the album within the limitations period. With that assumption, the district court then found that no direct infringement could be established because there was no evidence either that Bridgeport ever demanded that UPIP revoke its license because of the claimed infringement, or that UPIP had the right to revoke the license for this reason. It also found, consistent with its earlier decision relating to the Warner defendants, that UPIP’s passive receipt of income alone could not constitute contributory infringement. Finally, vicarious liability was rejected because there was no showing that UPIP had control over a direct infringer. After close examination of the record, we find a complete absence of proof connecting UPIP"
},
{
"docid": "7323591",
"title": "",
"text": "third party manufacturer, Sailsors, “wrote the manual at issue, and it was [Kohlj’s understanding that the third party manufacturer did not copy Dwyer’s manual.” (Defs.’ Reply 5, ECF No. 118 (citing Sensocon Dep. 68, ECF No. 110-3).) Kohl’s reliance on Dangler does not acknowledge the specific case law that has developed for copyright cases. The Supreme Court has held that, while “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another ... [t]he absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.” Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 434-35, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (stating that “vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual liable for the actions of another”). “Vicarious liability exists when two elements are present. First, the defendant must possess the right and ability to supervise the infringing conduct. Second that defendant must have ‘an obvious and direct financial interest in the exploitation of copyrighted materials.’ ” 3 Nimmer on Copyright § 12.04[A][2] (quoting Shapiro, Bernstein & Co. v. H.L. Green, Co., 316 F.2d 304, 307 (2d Cir.1963)). A form of contributory infringement occurs when a “party ‘who, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.’ ” Id. § 12.04[A][3][a ] (quoting Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). At least one district court in the Seventh Circuit has acknowledged this, stating that contributory liability is possible where a party “directly participates in the infringing activity or ‘induces, causes, or materially contributes to the infringing conduct of another.’ ” Microsoft Corp. v. Ram Distrib., LLC, 625 F.Supp.2d 674, 682 (E.D.Wis.2008) (quoting Burdick v. Koerner, 988 F.Supp. 1206, 1209 (E.D.Wis.1998) (quoting Grupke v. Linda Lori Sportswear, Inc., 921 F.Supp."
},
{
"docid": "18392115",
"title": "",
"text": "Travis’ knowledge that he was using copyrighted plans, does not create an issue of fact with respect to Lifschutz’ and McWilliams’ knowledge that the Plaintiffs’ plans were being utilized. Although the issue of the knowledge by Defendants Ingram Square, Lifschutz and McWilliams that Plaintiffs’ drawings and specifications were being used in the Ingram Square project might be material to the issues of conspiracy and actual or contributory infringement, the deposition testimony cited by Plaintiffs does not raise a genuine issue of fact with respect to their knowledge. The third genuine issue of material fact posited by Plaintiffs in opposition to summary judgment is whether Defendants copied or caused to be copied Plaintiffs’ drawings and specifications. Section 106 of the Copyright Act of 1976, 17 U.S.C. § 106, accords to the owner of a copyright the exclusive right to reproduce the copyrighted work in copies, to prepare derivative works based on the copyrighted work, and to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending. Section 501(a) provides that anyone who violates any of the exclusive rights of the copyright owner, as provided in Section 106, is an infringer of the copyright. In order to establish copyright infringement, a Plaintiff must prove (1) his ownership of a copyright and (2) that the Defendant “copied” Plaintiffs’ work. Ferguson v. National Broadcasting Company, Inc., 584 F.2d 111, 113 (5th Cir. 1978) (citing 3 M. Nimmer, Copyright §§ 13.01 and 13.-02(A) (1978)). Additionally, a Defendant may be held liable as a contributory infringer if he acts with knowledge of copyright infringing activity to induce, cause, or materially contribute to the infringing conduct of another. Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2nd Cir. 1971). See Universal City Studios, Inc. v. Sony Corporation of America, 659 F.2d 963, 975 (9th Cir. 1981). Because there is ordinarily little or no direct evidence of copying, a plaintiff may prove this element by showing that the defendant had access to the copyrighted work and that the defendant’s work is substantially"
},
{
"docid": "13131229",
"title": "",
"text": "a theory of contributory infringement, “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another” is liable for the infringement, too. Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971) (footnote omitted). Under a theory of vicarious liability, a defendant who “has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities” is similarly liable. Id. But to establish direct liability under §§ 501 and 106 of the Act, something more must be shown than mere ownership of a machine used by others to make illegal copies. There must be actual infringing conduct with a nexus sufficiently close and causal to the illegal copying that one could conclude that the machine owner himself trespassed on the exclusive domain of the copyright owner. The Netcom court described this nexus as requiring some aspect of volition or causation. 907 F.Supp. at 1370. Indeed, counsel for both parties agreed at oral argument that a copy machine owner who makes the machine available to the public to use for copying is not, without more, strictly liable under § 106 for illegal copying by a customer. The ISP in this case is an analogue to the owner of a traditional copying machine whose customers pay a fixed amount per copy and operate the machine themselves to make copies. When a customer duplicates an infringing work, the owner of the copy machine is not considered a direct infringer. Similarly, an ISP who owns an electronic facility that responds automatically to users’ input is not a direct infringer. If the Copyright Act does not hold the owner of the copying machine liable as a direct infringer when its customer copies infringing material without knowledge of the owner, the ISP should not be found liable as a direct in-fringer when its facility is used by a subscriber to violate a copyright without intervening conduct of the ISP.. Moreover, in the context of the conduct typically engaged in by an ISP, construing the Copyright Act to"
},
{
"docid": "19347016",
"title": "",
"text": "of state law. Rodriguez, 314 F.3d at 983. DISCUSSION SECONDARY LIABILITY UNDER FEDERAL COPYRIGHT AND TRADEMARK LAW A. Secondary Liability for Copyright Infringement Perfect 10 alleges that numerous websites based in several countries—and their paying customers—have directly infringed its rights under the Copyright Act, 17 U.S.C. § 101, et seq. In the present suit, however, Perfect 10 has sued Defendants, not the direct infringers, claiming contributory and vicarious copyright infringement because Defendants process credit card charges incurred by customers to acquire the infringing images. We evaluate Perfect 10’s claims with an awareness that credit cards serve as the primary engine of electronic commerce and that Congress has determined it to be the “policy of the United States—(1) to promote the continued development of the Internet and other interactive computer services and other interactive media [and] (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” 47 U.S.C. §§ 230(b)(1), (2). 1. Contributory Copyright Infringement Contributory copyright infringement is a form of secondary liability with roots in the tort-law concepts of enterprise liability and imputed intent. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir.1996); Perfect 10, Inc. v. Amazon.com, Inc. et al., 487 F.3d 701 (9th Cir.2007). This court and the United States Supreme Court (Supreme Court) have announced various formulations of the same basic test for such liability. We have found that a defendant is a contributory infringer if it (1) has knowledge of a third party’s infringing activity, and (2) “induces, causes, or materially contributes to the infringing conduct.” Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.2004) (citing Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). In an Internet context, we have found contributory liability when the defendant “engages in personal conduct that encourages or assists the infringement.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir.2001) (internal citations omitted). In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court adopted from patent law the concept"
},
{
"docid": "16995454",
"title": "",
"text": "knew his BBS users were infringing on Sega’s copyright, or encouraged them to do so, has no bearing on whether Sherman directly caused the copying to occur. Id. at 1372. Furthermore, Sherman’s actions as a BBS operator and copier seller are more appropriately analyzed under contributory or vicarious liability theories. Therefore, because Sega has not shown that Sherman directly caused the copying, Sherman cannot be liable for direct infringement. B. Contributory Infringement Just because Sherman is not liable for direct infringement, however, does not mean that he is free from liability. Although the Copyright Act does not expressly impose liability on anyone other than direct infringers, courts have long recognized that in certain circumstances, liability for contributory infringement will be imposed. Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 261 (9th Cir.1996) (citing Sony Corp. v. Universal City Studios, 464 U.S. 417, 435, 104 S.Ct. 774, 785, 78 L.Ed.2d 574 (1984)). Contributory copyright infringement stems from the notion that one who directly contributes to another’s infringement should be held liable. Id. at 264. Such liability is. established where the defendant, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Id. (quoting Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2nd Cir.1971)); see also Religious Technology Ctr. v. Netcom OnLine Communication Serv., Inc., 907 F.Supp. 1361, 1372 (N.D.Cal.1995) (quoting Gershwin, 443 F.2d at 1162). To impose liability on Sherman for contributory infringement, Sega must first establish that the users of Sherman’s MAP-HIA BBS directly infringed Sega’s copyright. Second, Sega must establish that (i) with knowledge of the users’ infringing activity, (ii) Sherman induced, caused, or materially contributed to their infringing activity. ' 1. Direct infringement by MAPHIA BBS users As discussed above, Sega has established that copies were made when unauthorized copies of Sega game files were downloaded from, or uploaded to, Sherman’s BBS by-Sherman’s BBS users. Therefore, Sega has established direct copyright infringement by Sherman’s BBS users. ¡8. Sherman’s knowledge of his users’ activities The standard for the knowledge requirement is objective, and is satisfied where the"
},
{
"docid": "7844511",
"title": "",
"text": "239 F.3d 1004, 1019 (9th Cir.2001)); see Religious Tech. Center v. Netcom On-Line Comm., Servs., 907 F.Supp. 1361, 1373 (N.D.Cal. 1995) (holding that “liability for participation in the infringement will be established where the defendant with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another”). Contributory liability for copyright infringement, therefore, requires showing that “the de fendant had reasonable knowledge of specific infringing [acts].” See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (“MGM, Inc.”), 380 F.3d 1154, 1160 (9th Cir.2004) (citing A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1022 (9th Cir.2001)); see Adobe Sys., Inc., 173 F.Supp.2d at 1048 (“Contributory infringement requires that the secondary infringer know or have reason to know of direct infringement”). “The standard for the knowledge requirement is objective, and is satisfied where the defendant knows or has reason to know of the infringing activity.” Cybernet Ventures, Inc., 213 F.Supp.2d at 1169. Inducement of infringement requires “active steps ... taken to encourage direct infringement.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd. (“Grokster, Ltd.”), 545 U.S. 913, 936, 125 S.Ct. 2764,162 L.Ed.2d 781 (2005); see UMG Recordings, Inc. v. Veoh Networks, Inc., 2009 WL 334022 (C.D.Cal. Feb. 2, 2009) (“Inducement to infringe requires distribution of a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement.”); see MGM, Inc., 380 F.3d at 1160 (citing A & M Records, Inc., 239 F.3d at 1022). Thus, courts generally find liability for inducement where one “actively and knowingly aid[s] and abet[s] another’s direct infringement.” Id. (internal citations omitted). However, the Supreme Court noted that it must be “mindful of the need to keep from entrenching on regular commerce or discouraging the development of technologies,” and stated: [M]ere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability. Nor would ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability in themselves. The inducement rule, instead, premises liability on purposeful, culpable"
},
{
"docid": "16995455",
"title": "",
"text": "liability is. established where the defendant, “with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Id. (quoting Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2nd Cir.1971)); see also Religious Technology Ctr. v. Netcom OnLine Communication Serv., Inc., 907 F.Supp. 1361, 1372 (N.D.Cal.1995) (quoting Gershwin, 443 F.2d at 1162). To impose liability on Sherman for contributory infringement, Sega must first establish that the users of Sherman’s MAP-HIA BBS directly infringed Sega’s copyright. Second, Sega must establish that (i) with knowledge of the users’ infringing activity, (ii) Sherman induced, caused, or materially contributed to their infringing activity. ' 1. Direct infringement by MAPHIA BBS users As discussed above, Sega has established that copies were made when unauthorized copies of Sega game files were downloaded from, or uploaded to, Sherman’s BBS by-Sherman’s BBS users. Therefore, Sega has established direct copyright infringement by Sherman’s BBS users. ¡8. Sherman’s knowledge of his users’ activities The standard for the knowledge requirement is objective, and is satisfied where the defendant knows or has reason to know of the infringing activity. Casella v. Morris, 820 F.2d 362, 365 (11th Cir.1987) (quoting Gershwin, 443 F.2d at 1162.) Here, it is undisputed that Sherman had knowledge that his users were copying the games. Sherman admits that users were allowed to upload and download Sega games from his MAPHIA BBS. Moreover, evidence of a screen printout of user uploading and downloading statistics from the MAPHIA BBS shows that Sherman tracked, or at least had the ability to track, user uploads and downloads. ’Thus, Sega has established that Sherman knew of the infringing conduct by MAP-HIA BBS users. S. Sherman’s participation in his users’ activities The Ninth Circuit has recently stated that “providing the site and facilities for known infringing activity is sufficient to establish contributory liability,” at least in a swap meet context. Fonovisa, 76 F.3d at 264. In this ease, Sherman provided the BBS as a central depository site for the unauthorized copies of games, and allowed subsequent distribution of the games by user downloads. He provided"
},
{
"docid": "54906",
"title": "",
"text": "success of its business; and (5) has not taken meaningful steps to mitigate infringement. Accordingly, the Court GRANTS Plaintiffs’ motion for summary judgment on their claim of inducement of infringement against LW. C. Contributory Copyright Infringement Plaintiffs and LW cross-move for summary judgment on Plaintiffs’ claim that LW is secondarily liable for copyright infringement because it “materially contributed” to infringement committed by LimeWire users. The Court finds that summary judgment is not warranted because the Court cannot determine, based on the record, whether LimeWire is capable of substantial noninfringing uses. 1. Legal Standard A defendant may be held liable for contributory copyright infringement if, “with knowledge of the infringing activity,” it “materially contributes to the infringing conduct of another.” Matthew Bender & Co., Inc. v. West Pub. Co., 158 F.3d 693, 706 (2d Cir.1998) (quoting Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). Unlike an inducement claim, a claim for contributory infringement does not require a showing that the defendant intended to foster infringement. See Grokster, 545 U.S. at 942, 125 S.Ct. 2764 (Ginsburg, J., concurring) (noting that an inducement claim and a contributory infringement claim “capture different culpable behavior”). Rather, to establish a “material contribution” claim, a plaintiff must show that the defendant (1) had actual or constructive knowledge of the infringing activity, and (2) encouraged or assisted others’ infringement, or provided machinery or goods that facilitated infringement. See Faulkner v. Nat’l Geographic Soc’y, 211 F.Supp.2d 450, 473-74 (S.D.N.Y.2002), aff'd at 409 F.3d 26 (2d Cir.2005); Matthew Bender, 158 F.3d at 706; accord Napster, Inc., 239 F.3d at 1020 (“Contributory liability requires that the secondary infringer know or have reason to know of direct infringement.”). A defendant’s contribution to a third party’s infringing activities must be “material” to give rise to a claim for contributory infringement. See Gershwin, 443 F.2d at 1162; Dynamic Microprocessor Assocs., Inc. v. EKD Computer Sales, No. 92-2787, 1997 WL 231496, at *14 (E.D.N.Y. Apr. 14, 1997). For example, a defendant who is peripherally involved in infringement, such as one who provides online payment services for transactions involving infringement,"
},
{
"docid": "779093",
"title": "",
"text": "factual allegations in common. In particular, the determination that a claim requires reference to an arbitrable issue or factual dispute is not determinative. 398 F.3d at 776 (internal punctuation and citations omitted). We conclude that while the APTRAS XFS and S4i claims are similar, the claims are not identical. NCR’s claims relating to S4i are “truly outside” the arbitration clause even though there are factual allegations common to both types of software. B. Contributory Copyright Infringement Liability for contributory infringement derives from the defendant’s relationship to the direct infringement. Contributory infringement occurs when one, with knowledge of the infringing (activity, induces, causes, or materially contributes to the infringing conduct of another. Bridgeport Music, Inc. v. WB Music Corp., 508 F.3d 394, 398 (6th Cir.2007) (internal punctuation and citations omitted) (emphasis added). That is, “a plaintiff must allege: (1) direct copyright infringement [by] a third-party; (2) knowledge by the defendant that the third-party was directly infringing; and (3) [defendant’s] material contribution to the infringement.” Parker v. Google, Inc., 242 Fed.Appx. 833, 837 (3d Cir.2007). And “[w]ith respect to the element of knowledge, contributory liability requires that the secondary infringer ‘know or have reason to know’ of the direct infringement.” Encore Entm’t v. KIDdesigns, Inc., 2005 WL 2249897, *15, 2005 U.S. Dist. LEXIS 44386, *49 (M.D.Tenn. Sept. 14, 2005) (quoting A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020 (9th Cir.2001)). “Secondary liability may be imposed on a defendant who does nothing more than encourage or induce another to engage in copyright infringement,” Warner Bros. Entertainment, Inc. v. Ideal World Direct, 516 F.Supp.2d 261, 268 (S.D.N.Y.2007), because secondary liability is predicated on “the common law doctrine that one who knowingly participates or furthers a tortious act is jointly and severally liable with the prime tortfeasor.” Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971) (internal punctuation and citation omitted). 1. APTRA XFS (Count III) NCR could maintain a contributory copyright infringement claim without referencing the 1998 Agreement. To maintain this claim, NCR must establish that its licensees infringed its copyright in the APTRA XFS"
},
{
"docid": "23360813",
"title": "",
"text": "251 F.3d at 1257. We review de novo the district court’s interpretations of the Copyright Act, 17 U.S.C. § 101, et seq. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1073 (9th Cir.2000). II. The Law of Copyright Infringement and the DMCA Ellison alleges that AOL infringed his copyrighted works. As a threshold question, a plaintiff who claims copyright infringement must show: (1) ownership of a valid copyright; and (2) that the defendant violated the copyright owner’s exclusive rights under the Copyright Act. 17 U.S.C. § 501(a) (2003); Ets-Hokin, 225 F.3d at 1073. We recognize three doctrines of copyright liability: direct copyright infringement, contributory copyright infringement, and vicarious copyright infringement. To prove a claim of direct copyright infringement, a plaintiff must show that he owns the copyright and that the defendant himself violated one or more of the plaintiffs exclusive rights under the Copyright Act. A & M Records v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001) (Napster II). “One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another may be liable as a ‘contributory’ [copyright] infringer.” Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971) (footnote omitted and emphasis added). We have interpreted the knowledge requirement for contributory copyright infringement to include both those with actual knowledge and those who have reason to know of direct infringement. Napster II, 239 F.3d at 1020. A defendant is vicariously liable for copyright infringement if he enjoys a direct financial benefit from another’s infringing activity and “has the right and ability to supervise” the infringing activity. Napster II, 239 F.3d at 1022 (quoting Gershwin Publ’g Corp., 443 F.2d at 1162); Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 262 (9th Cir.1996); 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.04[A][1] (perm.ed., rev.vol.2003). Congress enacted the DMCA in 1998 to comply with international copyright treaties and to update domestic copyright law for the online world. See Digital Millennium Copyright Act, Pub.L. No. 105-304, 112 Stat. 2860 (1998); 3 Nimmer on Copyright § 12A.02[A]; David"
},
{
"docid": "22218299",
"title": "",
"text": "that are original.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see, e.g., Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 548, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). “The word ‘copying’ is shorthand for the infringing of any of the copyright owner’s five exclusive rights” described in § 106. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.2001) (“Napster”) (internal quotation marks omitted). Further, “[although ‘[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,’ ” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) (“Grokster”) (quoting Sony Corp. v. Universal City Studios, 464 U.S. 417, 434, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984)), it is well established, based on “the common-law doctrine that one who knowingly participates or furthers a tortious act is jointly and severally liable with the prime tortfeasor,” that “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer,” Gershwin Publishing Corp. v. Columbia Artists Manage ment, Inc., 443 F.2d 1159, 1162 (2d Cir.1971) (“Gershwin ”) (internal quotation marks and footnote omitted) (emphases ours); see, e.g., Grokster, 545 U.S. at 930, 125 S.Ct. 2764. The knowledge standard is an objective one; contributory infringement liability is imposed on persons who “know or have reason to know” of the direct infringement, Napster, 239 F.3d at 1020 (emphasis added); see, e.g., In re: Aimster Copyright Litigation, 334 F.3d 643, 650 (7th Cir.2003) (“[wjillful blindness is knowledge”), cert. denied, 540 U.S. 1107, 124 S.Ct. 1069, 157 L.Ed.2d 893 (2004); Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 845 (11th Cir.1990) {“Cable/Home”)-, Gershwin, 443 F.2d at 1162. Such “liability exists if the defendant engages in ‘personal conduct that encourages or assists the infringement,’ ” Napster, 239 F.3d at 1019 (quoting Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir.1998)). The “ ‘resolution of the issue ... depends"
}
]
|
786133 | or failed to remedy an existing violation of his due process rights under the Fourteenth Amendment. The first argument centers on a line of cases, stretching back to Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam), in which the U.S. Supreme Court has held that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (footnotes omitted). See also, e.g., Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); REDACTED Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The petitioner contends that applying the rule prohibiting the knowing use of perjured testimony to the facts revealed in Quantez’s affidavit demonstrates that he is entitled to a new trial, or at least an evidentiary hearing. The petitioner’s second argument builds on the first. While the precise contours of this argument are difficult to define, the crux seems to be that precedents such as Pyle and Giglio establish that an evidentiary hearing must be held to test the verity of a witness’s recantation, at least in circumstances where the recantation introduces the possibility of a due process violation. Therefore, according to the | [
{
"docid": "22541879",
"title": "",
"text": "for his testimony, and that the Assistant State’s Attorney handling the case had known this to be false. A hearing was ultimately held at which the former Assistant State’s Attorney testified that he had only'promised to help Hamer if Hamer’s story “about being a reluctant participant” in the robbery was borne out, and not merely if Hamer would testify at petitioner’s trial. He testified that in his coram nobis petition on Hamer’s behalf he “probably .used some language that [he] should not. have used” in his “zeal to do something for Hamer” to whom he “felt a, moral obligation.” The lower court denied petitioner relief on the basis of the attorney’s testimony. On appeal, the Illinois Supreme Court affirmed on di£-' ferent‘grounds over two dissents. 13 Ill. 2d 566, 150 N. E. 2d 613. It fcjiind,' contrary to the trial éourt, that the attorney had promised Hamer consideration if he would testify at petitioner’s trial, a finding which the State does not contest here. It further found that the Assistant State’s Attorney knew that Hamer had lied in denying that he had been promised consideration. It held, however, that petitioner was entitled to no relief since the jury had already been apprised that someone whom Hamer had tentatively identified as being a public defender “was going to do what he could” in aid of Hamer, and “was trying to get something did” for him. We granted cer tiorari to considér the question posed in the first paragraph of this opinion. 358 U. S. 919. First, it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, Mooney v. Holohan, 294 U. S. 103; Pyle v. Kansas, 317 U. S. 213; Curran v. Delaware, 259 F. 2d 707. See New York ex rel. Whitman v. Wilson, 318 U. S. 688, and White v. Ragen, 324 U. S. 760. Compare Jones v. Commonwealth, 97 F. 2d 335, 338, with In re Sawyer’s Petition, 229 F. 2d 805, 809. Cf. Mesarosh v. United States, 352 U. S."
}
]
| [
{
"docid": "16313338",
"title": "",
"text": "The defense counsel must be allowed to fulfill his responsibility, and trial counsel’s failure here to disclose this information — so important to the fundamental fairness of the trial — thwarted the performance of that responsibility, and may have thwarted justice as well. C Beyond all this, we believe that the first Brady situation also is present in this case. That situation, typified by Mooney v. Holohan, supra, exists when “the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” United States v. Agurs, supra at 103, 96 S.Ct. at 2397 (footnote omitted). Addressing the approach to be used in such a case, the Agurs Court said: In a series of subsequent cases, the Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.... In those cases the Court has applied a strict standard of materiality, not just because they involve prosecutorial misconduct, but more importantly because they involve a corruption of the truth-seeking function of the trial process. Id. at 103-04, 96 S.Ct. at 2397 (footnotes omitted, emphasis added), citing Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); and Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). In his deposition Brown clearly gave the impression that his prior drug involvement had been limited to marijuana and that, even as to that substance, he had terminated his use before appellant’s alleged offenses. According to him, his cessation of drug activity and his cooperation with military authorities in apprehending appellant was a direct outgrowth"
},
{
"docid": "8101402",
"title": "",
"text": "should stand unless the force of the newly discovered event (i.e., the fact and nature of the perjury) and the content of the corrected testimony are such that an acquittal probably would result upon retrial. 194 F.3d at 221 (emphasis added). Hud-dleston expressly reserved for another day the question of the standard to be used as to claims of knowing or reckless use by the government of perjured testimony. See id. We resolve that question as, we believe, Supreme Court precedent requires us to do. Although González does not categorize knowing use of perjured testimony as a Brady type error, we think it is sufficiently analogous that the Brady error rule should apply to claims of knowing use of perjured testimony. The risk that a conviction was brought about by the government’s knowing use of perjury goes to the concerns about fairness of the trial that animated Kyles. Obtaining a conviction by presenting testimony known to be perjured “is inconsistent with the rudimentary demands of justice.” Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935); accord Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), a pre-Brady ease, the Supreme Court said a new trial is required if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.” 360 U.S. at 271, 79 S.Ct. 1173. The Supreme Court has several times referred to the prosecution’s knowing use of perjured testimony as a category of Brady error, see, e.g., Strickler v. Greene, 527 U.S. 263, 280-81, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), while also repeating the standard that “a conviction ... must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” id. at 103, 96 S.Ct. 2392. In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985),"
},
{
"docid": "22911966",
"title": "",
"text": "from the trial with a different pair, which it offered into evidence at the PCRA Hearing and told the PCRA Court were the same sweatpants as those from the trial. a. Knoiving Use of Perjured, Testimony The Supreme Court has long held that the state’s knowing use of perjured testimony to obtain a conviction violates the Fourteenth Amendment. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). In United States v. Agurs, the Supreme Court characterized this line of cases as finding it fundamentally unfair to the accused where “the prosecution’s case includes perjured testimony and [ ] the prosecution knew, or should have known, of the perjury.” 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). “The same is true when the government, although not soliciting false evidence, allows it to go uncorrected when it appears at trial.” United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir.1992) (citing Giglio, 405 U.S. at 153, 92 S.Ct. 763). In such circumstances, the conviction must be set aside “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Id. In United States v. Bagley, the Court explained: “Although this rule is stated in terms that treat the knowing use of perjured testimony as error subject to harmless error review, it may as easily be stated as a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.” 473 U.S. 667, 679-80, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Thus, in order to make out a constitutional violation Lambert must show that (1) Yunkin committed perjury; (2) the government knew or should have known of his perjury; (3) the testimony went uncorrected; and (4) there is any reasonable"
},
{
"docid": "19914194",
"title": "",
"text": "answer is “no.” Simply comparing the arguments made in the petition er’s briefs to this court and the arguments made in the petitioner’s brief to the Minnesota Supreme Court shows that the petitioner is attempting to raise a new claim in federal court that he failed to present in state court. The petitioner’s briefs to this court contain three principal arguments, which appear to be variations on a single federal claim: namely, that the denial of his requests for postconviction relief either directly violated or failed to remedy an existing violation of his due process rights under the Fourteenth Amendment. The first argument centers on a line of cases, stretching back to Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam), in which the U.S. Supreme Court has held that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (footnotes omitted). See also, e.g., Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The petitioner contends that applying the rule prohibiting the knowing use of perjured testimony to the facts revealed in Quantez’s affidavit demonstrates that he is entitled to a new trial, or at least an evidentiary hearing. The petitioner’s second argument builds on the first. While the precise contours of this argument are difficult to define, the crux seems to be that precedents such as Pyle and Giglio establish that an evidentiary hearing must be held to test the verity of a witness’s recantation, at least in circumstances where the recantation introduces the possibility of a due process violation. Therefore, according to the petition er, the state courts were obligated under federal law to hold an evidentiary hearing to"
},
{
"docid": "12046531",
"title": "",
"text": "the ability of defense counsel to impeach Mrs. Clark and probably affected the outcome of his trial. In his view, because prosecutorial nondisclosure of requested information prevented defense counsel from fulfilling their responsibility to represent him, he was denied a fair trial. We agree. II A In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at 1196. (Emphasis added.) Thus, regardless of the good faith reflected by Lt Col Hooper’s explanations for not disclosing information to the defense, the only issue here is the materiality of the nondisclosed evidence. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 40 L.Ed.2d 342 (1976), the Supreme Court provided guidance for determining the materiality of undisclosed information. Three separate factual sitúa tions of prosecutorial nondisclosure were described and a different standard was prescribed for each situation. See also United States v. Brickey, 16 M.J. 258 (C.M.A. 1983). In the first situation a prosecution witness had given “perjured testimony and ... the prosecution knew, or should have known, of the penury.” There “a conviction [so] obtained ... is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” 427 U.S. at 103, 96 S. Ct. at 2397 (footnotes omitted). As Agurs explained, this “strict standard of materiality” is applied “not just because ... prosecutorial misconduct” is involved but, more important, because of “corruption of the truth-seeking function of the trial process.” 427 U.S. at 104, 96 S. Ct. at 2397. Typical of this situation are Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); and Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed."
},
{
"docid": "617769",
"title": "",
"text": "testimony it knew to be false or simply allowed such testimony to pass uncorrected. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue, 360 U.S. at 269, 79 S.Ct. 1173. And, knowingly false or misleading testimony by a law enforcement officer is imputed to the prosecution. See Wedra v. Thomas, 671 F.2d 713, 717 n. 1 (2d Cir.1982); Curran v. Delaware, 259 F.2d 707, 712-13 (3d Cir.1958) (citing Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942)); cf. Boone v. Paderick, 541 F.2d 447, 450-51 (4th Cir.1976) (recognizing that withholding of exculpatory evidence by police is imputed to the prosecution). But see Koch v. Puckett, 907 F.2d 524, 530-31 (5th Cir.1990) (rejecting habeas petitioner’s claim that sheriff and investigators testified falsely at trial on the basis that petitioner had failed to show that the prosecutor knew the testimony was perjurious). As this court has explained: The police are also part of the prosecution, and the taint on the trial is ho less if they, rather than the State’s Attorney, were guilty of the nondisclosure. If police allow the State’s Attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradicts this inference, state officers are practicing deception not only on the State’s Attorney but on the court and the defendant. Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846 (4th Cir.1964) (footnote omitted). The knowing use of perjured testimony constitutes a due process violation when “ ‘there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’” Kyles v. Whitley, 514 U.S. 419, 433 n. 7, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)); see United States v. Ellis, 121 F.3d 908, 915 n. 5 (4th Cir.1997), cert. denied, — U.S.-, 118 S.Ct. 738, 139 L.Ed.2d 674, 675 (1998); United States v. Kelly, 35 F.3d 929, 933 (4th Cir.1994). During Boyd’s trial, each of the State’s witnesses who testified regarding"
},
{
"docid": "22841383",
"title": "",
"text": "habeas petition after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). . The Supreme Court has stated that “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.' ” Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525. . In Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per cu-riam), the Supreme Court stated: [W]e are unable to approve a narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. Hebert v. Louisiana, 272 U.S. 312, 316[ — 17, 47 S.Ct. 103, 71 L.Ed. 270 (1926)]. It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. The Supreme Court held in Pyle v. Kansas, 317 U.S. 213, 214-16, 63 S.Ct. 177, 87 L.Ed. 214 (1942), that allegations that the State intimidated or coerced perjured testimony from the witnesses against him stated a potential claim for habeas relief under the Due Process Clause, citing Mooney. Cases following Mooney establish that due process is violated if the State knowingly uses perjured testimony or deliberately deceives the court. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (witness and the prosecutor stated that there was no plea deal when there was a lenient plea agreement); Miller"
},
{
"docid": "348648",
"title": "",
"text": "and any and all information and testimony provided by Ralph Wille can be used against him in the event the Government chooses to proceed criminally against him. Furthermore, any false information and/or testimony so provided by Ralph P. Wille under oath can be prosecuted under the perjury and false statement laws of the United States, and nothing in this agreement shall be construed, in any manner, to affect the Government's right to so prosecute. Very truly yours, Peter F. Vaira United States Attorney Stephen V. Wehner Assistant United States Attorney App. at 1529-31 (emphasis added). . See 317 U.S. at 215-16, 63 S.Ct. at 178 (emphasis added): Petitioner’s papers ... set forth allegations that his imprisonment resulted from perjured testimony, knowingly used by the State authorities to obtain his conviction, and from the deliberate suppression by those same authorities of evidence favorable to him. These allegations sufficiently charge a deprivation of rights guaranteed by the Federal Constitution. These holdings derived from Mooney v. Holohan, 294 U.S. 103, 110, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935) (per curiam), in which the petitioner had urged \"that the ‘knowing use’ by the State of perjured testimony to obtain the conviction and the deliberate suppression of evidence to impeach that testimony constituted a denial of due process of law.” The Mooney Court’s holding, however, was limited on its face to the use of \"testimony known to be perjured.\" Id. at 112, 55 S.Ct. at 341. In Pyle the Supreme Court first held squarely that the deliberate suppression of favorable, non-perjured evidence violates due process. The fact that Pyle was not limited to the use of perjured testimony is occasionally overlooked. See United States v. Agurs, 427 U.S. 97, 103 n. 8, 96 S.Ct. 2392, 2397 n. 8, 49 L.Ed.2d 342 (1976). . The original Rule 16 provided: Upon motion of a defendant at any time after the filing of the indictment or information, the court may order the attorney for the government to permit the defendant to inspect and copy or photograph designated books, papers, documents or tangible objects, obtained from or belonging"
},
{
"docid": "16388980",
"title": "",
"text": "The long-settled rule has been that the knowing use by the prosecution of false evidence or perjured testimony which is material to the issues in a criminal trial is a denial of due process. A conviction obtained by the use of such evidence cannot be permitted to stand. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). See also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1947); Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932 (1942). The same rule applies if the prosecution, although not actively soliciting false evidence, passively but knowingly allows it to go uncorrected or allows the jury to be presented with a materially false impression. Napue v. Illinois, supra; Alcorta v. Texas, supra. See Hamric v. Bailey, 386 F.2d 390 (4th Cir. 1967); Link v. United States, 352 F.2d 207 (8th Cir. 1965). The same result may obtain even though the false nature of the evidence concerns only the credibility of an important witness, rather than the ultimate issue of guilt or innocence. Brady v. Maryland, supra; William v. Dutton, supra. While the knowing use of perjured testimony may require reversal even though the falseness of the testimony relates only to a prosecution witness’ credibility, this does not mean that the suppression of evidence tending to impeach any prosecution witness would be so material as to require reversal merely because the evidence itself was material to that witness’ testimony. Materiality must be evaluated in light of all the evidence. The rule of Mooney v. Holohan, supra, has been extended to situations in which the suppressed evidence goes to the credibility of a prosecution witness only when the"
},
{
"docid": "19754477",
"title": "",
"text": "to raise or brief an issue in a timely fashion may constitute waiver on appeal). . AEDPA applies because Cook filed his federal habeas petition after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). . The Supreme Court has stated that \"a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.” \" Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. 2525. . In Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per cu-riam), the Supreme Court stated: [W]e are unable to approve a narrow view of the requirement of due process. That requirement, in safeguarding the liberty of the citizen against deprivation through the action of the State, embodies the fundamental conceptions of justice which lie at the base of our civil and political institutions. Hebert v. Louisiana, 272 U.S. 312, 316[-17, 47 S.Ct. 103, 71 L.Ed. 270 (1926)]. It is a requirement that cannot be deemed to be satisfied by mere notice and hearing if a State has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a State to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation. The Supreme Court held in Pyle v. Kansas, 317 U.S. 213, 214-16, 63 S.Ct. 177, 87 L.Ed. 214 (1942), that allegations that the State intimidated or coerced perjured testimony from the witnesses against him stated a potential claim for habeas relief under the Due Process Clause, citing Mooney. Cases following Mooney establish that due process is violated if the State knowingly uses perjured testimony or deliberately deceives the court. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d"
},
{
"docid": "2080844",
"title": "",
"text": "marks omitted). We conclude for reasons stated below that Jenkins has indeed identified an unreasonable application of federal law in the Appellate Division’s denial of relief under Napue and Giglio. We thus need not address whether what the district court recognized to be the more stringent standard of Darden and Donnelly would be met under AEDPA deference to the Appellate Division’s decision. V. The Unreasonable Application of Napue and Giglio “[D]eliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice.” Giglio, 405 U.S. at 153, 92 S.Ct. 763 (citation and internal quotation marks omitted); accord United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”) (internal citations omitted); Napue, 360 U.S. at 269, 79 S.Ct. 1173 (“[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.”) (citations omitted); Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (condemning “deliberate deception of court and jury by the presentation of testimony known to be perjured”); cf. Brady, 373 U.S. at 87, 83 S.Ct. 1194 (noting that nondisclosure by a prosecutor violates due process when the suppressed evidence is material to guilt). The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend. Napue, 360 U.S. at 269,"
},
{
"docid": "6527350",
"title": "",
"text": "(1957) (knowing use of false testimony); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (knowing use of false testimony); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942) (use of perjured testimony and suppression of exculpatory evidence); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (false testimony, known to prosecutor, on whether there was nay consideration for the witness’ testimony). In this case the prosecution had no knowledge of any falsity, although such knowledge is not required for relief to be afforded a petitioner. However, in this case the evidence given by Dr. Roe as to the number of recidivist murders from the U.S.P. was not false, but true as to the tenor of the testimony and as to Dr. Roe’s beliefs. It was also true in fact. Only the names of two individuals, brought out on cross-examination by co-defendant’s counsel, were in error. This is not the kind of material false information that denies due process. See Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967) (prosecutor’s evidence that paint was victim’s blood is material). In Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), a death penalty case, the court held the erroneous reference of a witness to a person named “Slick” and the failure of the prosecution to disclose other evidence on the issue was not “impeaching of positive” evidence (identification). Nor was evidence of a diagram significantly exculpatory to be material. The Supreme Court also held that the introduction of a shotgun not used in the killing was not a denial of due process. The evidence in Moore was of greater significance than that in this case and was not found to offend due process. It can only be concluded that any mistaken reference to the names or other inmates was harmless beyond a reasonable doubt. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) the court addressed the standard of materiality as being that the “omission [false"
},
{
"docid": "23600136",
"title": "",
"text": "Id. at 225. The Appellate Court of Illinois, on post-conviction review, stated that Mr. Schaff did not allege that the State knowingly introduced false testimony of the victim, as Illinois law requires. See Schaff II, 217 Ill.Dec. 119, 666 N.E.2d at 789-90 (citing People v. Brown, 169 Ill.2d 94, 214 Ill.Dec. 257, 660 N.E.2d 964 (1995)). It also held that the record did not support Mr. Schaff s allegation that the State knew the victim’s mother had testified falsely about the date she first contacted the Children’s Advocacy Center. It held that Mr. Schaff failed to make the required substantial showing that his constitutional rights were violated. The district court noted that Mr. Schaff had procedurally defaulted the claim concerning the mother’s perjured testimony. It also concluded that Mr. Schaff was not entitled to habeas relief because the state court’s decision was not an unreasonable application of federal law as determined by the Supreme Court of the United States. The Supreme Court has clearly established that a prosecutor’s knowing use of perjured testimony violates the Due Process Clause. See United States v. Agurs, 427 U.S. 97, 103 & n. 8, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Pyle v. Kansas, 317 U.S. 213, 215-16, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 110, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam). The Court requires that a conviction obtained by such knowing use of perjured testimony be set aside “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. 2392. Mr. Schaff admits that the prosecution did not knowingly use perjured testimony. His request that we follow Second Circuit precedent (a request that we expressly declined in Reddick v. Haws, 120 F.3d 714 (7th Cir.1997), and Shore v. Warden, Stateville Prison, 942 F.2d 1117 (7th Cir.1991), cert. denied, 504 U.S. 922, 112 S.Ct. 1973, 118 L.Ed.2d 573 (1992)), has no persuasive weight under the AEDPA. A habeas petitioner must support his claim with a Supreme Court decision that clearly establishes"
},
{
"docid": "19914195",
"title": "",
"text": "Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (footnotes omitted). See also, e.g., Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The petitioner contends that applying the rule prohibiting the knowing use of perjured testimony to the facts revealed in Quantez’s affidavit demonstrates that he is entitled to a new trial, or at least an evidentiary hearing. The petitioner’s second argument builds on the first. While the precise contours of this argument are difficult to define, the crux seems to be that precedents such as Pyle and Giglio establish that an evidentiary hearing must be held to test the verity of a witness’s recantation, at least in circumstances where the recantation introduces the possibility of a due process violation. Therefore, according to the petition er, the state courts were obligated under federal law to hold an evidentiary hearing to assess Quantez’s recantation, or to grant his request for a new trial outright. The petitioner’s third argument posits that the Minnesota Supreme Court deprived him of due process in his appeal from the denial of postconviction relief by applying the test set out in Larrison v. United States, 24 F.2d 82 (7th Cir.1928). Under Larrison, as it has been interpreted by the Minnesota Supreme Court, a prisoner may be granted a new trial based on a witness’s recantation if two conditions are met: “(1) the court is reasonably well-satisfied that the testimony given by a material witness was false; [and] (2) ... without the testimony, the jury might have reached a different conclusion.” Turnage II, 729 N.W.2d at 597 (ellipsis in original) (quoting Williams v. State, 692 N.W.2d 893, 896 (Minn.2005)). The petitioner notes that a majority of federal courts of appeals, including the Seventh Circuit (where Larrison originated), have rejected the Larrison test in favor of a “probability” test, which we have said “require[s] a petitioner seeking a new trial to show [that] the"
},
{
"docid": "16388979",
"title": "",
"text": "here there was no specific defense request for the undisclosed material. See generally Cannon v. Alabama, supra; United States v. Beasley, supra; United States v. Washington, 550 F.2d 320 (5th Cir. 1977); United States v. Jackson, supra. A fourth category includes cases in which the undisclosed information indicates that the conviction is based on false evidence or perjured testimony which the prosecution knew or should have knowh was false. Such a conviction is fundamentally unfair and must be set aside “if there is any reasonable likelihood that nt of the jury?* United States v. Agurs, supra, 427 U.S. 103, 96 S.Ct. at 2391. Of the four standards for measuring the materiality of the undisclosed evidence, this “reasonable likelihood” standard is the lowest threshold for reversal. That is, the defendant’s burden of showing the materiality of the suppressed evidence, a showing which requires reversal, is the least onerous of the four type situations. Given the assumptions we make to decide this appeal, we will analyze the facts and evidence in the instant case under this standard. The long-settled rule has been that the knowing use by the prosecution of false evidence or perjured testimony which is material to the issues in a criminal trial is a denial of due process. A conviction obtained by the use of such evidence cannot be permitted to stand. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). See also Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1947); Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 932 (1942). The same rule applies if the prosecution, although not actively soliciting false evidence, passively but knowingly allows it to go"
},
{
"docid": "22911965",
"title": "",
"text": "therefore simply apply § 2254(d)(2)’s reasonableness standard to the PCRA Court’s factual determinations. With respect to the trial court’s factual determinations, however, we apply a two-tiered analysis because Lambert seeks to rebut the trial court’s findings through evidence that was not before that court, namely evidence developed at the PCRA proceedings. Thus, when reviewing trial court factual determinations, we first determine whether they were reasonable in light of the record before the trial court. If reasonable, we then look to whether Lambert has rebutted the finding with clear and convincing evidence adduced at the PCRA hearing. 1. The Sweatpants As we explained above, Yunkin testified that Lambert wore his sweatpants-which the police eventually obtained and which contained Show’s blood on them-the morning of Show’s murder. Lambert argues that the Commonwealth-specifically the prosecutor, John Kenneff-knew that Lambert did not wear Yunkin’s sweatpants that morning and nonetheless elicited testimony from Yunkin to the contrary. She also argues that the Commonwealth “switched” the sweatpants at the PCRA Hearing. That is, she argues that the Commonwealth replaced the sweatpants from the trial with a different pair, which it offered into evidence at the PCRA Hearing and told the PCRA Court were the same sweatpants as those from the trial. a. Knoiving Use of Perjured, Testimony The Supreme Court has long held that the state’s knowing use of perjured testimony to obtain a conviction violates the Fourteenth Amendment. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). In United States v. Agurs, the Supreme Court characterized this line of cases as finding it fundamentally unfair to the accused where “the prosecution’s case includes perjured testimony and [ ] the prosecution knew, or should have known, of the perjury.” 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). “The same is true when the government,"
},
{
"docid": "21269578",
"title": "",
"text": "not verbatim and which the witnesses had not adopted or approved, would have produced a different outcome given the totality of circumstances. Accordingly, the Court finds that the withheld documents do not constitute Brady materials and so the timing of the disclosure, or lack thereof, is irrelevant. At best, such discrepancies, along with Petitioner’s allegations pertaining to the Stokes notes, could be cast as Giglio materials helpful for impeachment. Impeachment affects the credibility of witnesses and the government has a duty to furnish defendant with material evidence affecting the credibility of government witnesses. See Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). While Petitioner may argue that the inconsistencies in the documents affect witness credibility, Giglio evidence must be “material.” The Court has already established that the withheld Peniek and Hunter documents were not material. Petitioner also argues due process violations based on the knowing use of perjured testimony by the government. A conviction acquired through the knowing use of perjured testimony by the government violates due process. United States v. Kelly, 35 F.3d 929, 933 (4th Cir.1994)(citing Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959)). This is true whether the government solicited testimony it knew or should have known to be false or simply allowed such testimony to pass uncorrected. Id. (citing United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)). The Court has consistently set aside convictions obtained by the knowing use of false testimony when there was “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. at 2399, 49 L.Ed.2d 342. Courts hold that even when false testimony bears only on the credibility of government witnesses and other evidence has called the witnesses’ credibility into question, a conviction must be reversed when “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. at 2397. The courts"
},
{
"docid": "2264407",
"title": "",
"text": "material but endeavored to explain it away, the movants made the bulk of that material a proper subject for consideration by the judge. Appellants’ more basic contention is that if Eleanor Cordero was telling the truth, their convictions were obtained through the “government’s use of known perjured testimony and suppression of material evidence,” in violation of their constitutional rights — Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)— and that they are therefore entitled to a hearing at which her credibility can be tested. The trial court found, inter alia, that in several respects the facts alleged by Mrs. Cordero were not inconsistent with the testimony given at the trial, and that, “concerning Mrs. Cordero’s participation in the robberies,” “[a] fair reading of the record shows that the Government revealed everything it knew.” We affirm, for even crediting Mrs. Cordero’s affidavits, we do not think they make out a sufficient claim of prosecutorial suppression of information relevant to the credibility of trial witnesses to warrant § 2255 relief. Mrs. Cordero’s affidavits seem to say more on the score of prosecutorial misconduct than they actually do. The bulk of them, claiming that the entire story of management of the enterprise by Franzese and the four other defendants was a concoction, must be put aside since it is not alleged with any specificity that the Government had any reason to think the testimony was other than true — or, indeed, that it now does. Moreover, as we said in Dalli v. United States, supra, 491 F.2d at 760-61 (citations omitted): Mere generalities or hearsay statements will not normally entitle the applicant to a hearing, since such hearsay would be inadmissible at the hearing itself. The petitioner must set forth facts which he is in a position to establish by competent evidence. The claim of prosecutorial misconduct thus is simply that the Government knew more of the involvement of Mrs. Cordero,"
},
{
"docid": "23600137",
"title": "",
"text": "Due Process Clause. See United States v. Agurs, 427 U.S. 97, 103 & n. 8, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Pyle v. Kansas, 317 U.S. 213, 215-16, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Mooney v. Holohan, 294 U.S. 103, 110, 55 S.Ct. 340, 79 L.Ed. 791 (1935) (per curiam). The Court requires that a conviction obtained by such knowing use of perjured testimony be set aside “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. 2392. Mr. Schaff admits that the prosecution did not knowingly use perjured testimony. His request that we follow Second Circuit precedent (a request that we expressly declined in Reddick v. Haws, 120 F.3d 714 (7th Cir.1997), and Shore v. Warden, Stateville Prison, 942 F.2d 1117 (7th Cir.1991), cert. denied, 504 U.S. 922, 112 S.Ct. 1973, 118 L.Ed.2d 573 (1992)), has no persuasive weight under the AEDPA. A habeas petitioner must support his claim with a Supreme Court decision that clearly establishes the proposition essential to his position. See Mueller v. Sullivan, 141 F.3d 1232, 1234 (7th Cir.1998); Yancey n Gilmore, 113 F.3d 104, 106 (7th Cir.1997). The clearly established Supreme Court precedent demands proof that the prosecution made knowing use of perjured testimony. Mr. Schaff has admitted that, in this case, the prosecution did not; as a consequence, he cannot make a substantial showing of the denial of his right to due process, as required by § 2253(c)(2). We therefore do not grant a COA on this claim. 3. Mr. Schaff submits that his trial defense counsel was constitutionally ineffective in a number of respects: His attorney called only one witness, failed to investigate fully Klein’s background and practices, failed to discover the retaliatory motives of disgruntled tenants, and failed to present substantial evidence that the charges against Mr. Schaff were fabricated. The Illinois appellate court held that, because Mr. Schaff did not raise the claim on direct appeal and did not offer evidence to explain why the claim was not raised, he waived it. The"
},
{
"docid": "1850651",
"title": "",
"text": "false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (emphasis added); see also United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). “The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Napue, 360 U.S. at 269, 79 S.Ct. 1173. Agurs identified the test as whether “the prosecution knew, or should have known, of the perjury.” 427 U.S. at 103, 96 S.Ct. 2392. In Agurs, however, there was no allegation that the prosecutor should have known of any false statements. 427 U.S. at 104, 96 S.Ct. 2392. Thus, in Drake I, we identified the “should have known” language in Agurs as dicta. We did not rule on the contours of clearly established precedent on the level of culpability, short of actual knowledge, a prosecutor must have for a violation under Napue. 321 F.3d at 345. In Giglio, the Supreme Court held that, even though the specific prosecutor on the case did not have actual knowledge of the facts giving the lie to a prosecution witness’s testimony at trial, he was charged with the knowledge of another prosecutor because a prosecutor’s office has a duty to “insure communication of all relevant information on each case to every [prosecutor] who deals with it.” 405 U.S. at 154, 92 S.Ct. 763. However, neither Giglio nor any other Supreme Court case decided prior to Drake’s trial “clearly established,” by its holding, that a prosecutor’s failure to investigate testimony by a state witness that the prosecutor has reason to believe may be false is an error under Napue. “[T]he [Supreme] Court has consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs,"
}
]
|
70041 | the extent that the avoidance of liens may make the Defendant undersecured, it would not be entitled to attorney’s fees or post-petition interest under Section 506(b). Therefore, since the Plaintiff has sufficiently pled its claim to avoid the Defendant’s hens, and has alleged that such avoidance may make the Defendant un-dersecured, it has also sufficiently pled its request for determination of the Defendant’s claim. Surcharge (Count IX) As a general rule, “the administrative expenses of a bankruptcy are not to be charged against secured creditors’ collateral,” but instead are to be charged against the estate, since the trustee represents the interests of the unsecured creditors, not secured creditors. In re Chicago Lutheran Hosp. Ass’n, 89 B.R. 719, 726-27 (Bankr.N.D.Ill.1988) (citing REDACTED However, under 11 U.S.C. § 506(c), the trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the secured creditor. 11 U.S.C.A. § 506(c) (West 2009). The trustee, as the party seeking to recover costs, bears the burden of proving either (i) the expenses “were 1) reasonable, 2) necessary, and 3) beneficial to the secured creditor,” or (ii) the secured creditor caused or consented to the charges. Chicago Lutheran, 89 B.R. at 727. The Seventh Circuit Court of Appeals has taken a very narrow approach to what constitutes a “necessary” expense, for example finding that expenses incurred after the first | [
{
"docid": "7834505",
"title": "",
"text": "CCBL is consistent with this rule. Although the secured creditor eventually “benefited” from these expenses in the sense that it received the assets unharmed, it did not in any way consent to or cause these expenses. Further, placing the responsibility for these expenses on a secured creditor would discourage a trustee from taking reasonable steps to assess an estate’s position. As explained in In re Codesco, Inc., 18 B.R. 225, 230 (Bkrtcy.S.D. N.Y.1982), section “506(c) was not intended as a substitute for the recovery of administrative expenses that are appropriately the responsibility of the debtor’s estate.” In contrast, the expenses that accrued after the trustee filed his petition to abandon not only went to preserving assets that ultimately were abandoned to CCBL, but also were “caused” by the secured creditor in the sense that it failed to promptly respond to the trustee’s petition. See In re Hotel Associates, Inc., supra; Robinson v. Dickey, supra; Equitable Loan & Sec. Co. v. Moss & Co., supra; cf. First Western Savings and Loan Ass’n v. Anderson, 252 F.2d at 548 n. 8 (Among the factors to be considered in determining whether reorganization expenses should be charged against mortgaged property is: “Were the secured creditors responsible for any delays in connection with the proceedings.. . ?”). Thus the necessary expenses of preservation that benefited the secured creditor in this case accrued from the date of the trustee’s petition (12/20/79) until the date of CCBL’s answer (1/21/80). C Our final inquiry under section 506(c) is the reasonableness of the allowed expenses. This is the most problematic aspect of the bankruptcy court’s decision. Notwithstanding the differences explained above in regard to its calculation of the time period during which necessary expenses were incurred for the benefit of CCBL, in the end the bankruptcy court narrowed that period to approximately one month. In re Trim-X, supra, slip op. at 5. The court acknowledged that the reasonable rental value of the premises for one month was $9,400. Further, the record shows that security costs for one month were approximately $1,340 and utility charges for such a period were"
}
]
| [
{
"docid": "8854456",
"title": "",
"text": "§ 507(a)(4), which provides a level of priority among unsecured creditors for claims based on prepetition contributions to an employee benefit plan. Section 506(c), on the other hand, when it applies, provides a creditor priority even over secured creditors for preservation or disposition expenses incurred post-petition. Section 506(c) states: (c) The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c) (emphasis added); see also 11 U.S.C. § 102(5) (the word or, when used in the Bankruptcy Code, “is not exclusive”). Generally, administrative expenses in bankruptcy must be charged to the estate and not to equity or assets belonging to secured creditors. The section 506(c) exception to this rule is based on the principle that, once a petition is filed, “... the cost of protecting a fund in court is ... a dominant charge on that fund.” Adair v. Bank of Am. Nat’l Trust & Sav. Ass’n, 303 U.S. 350, 361, 58 S.Ct. 594, 600, 82 L.Ed. 889 (1938); 2 Collier Bankruptcy Manual 11506.05 (1991) at 506-26. Thus, section 506(c) costs of preserving or disposing of collateral have a unique superpriority under the Bankruptcy Code, a priority over even section 506(b) postpetition sums otherwise owing to an oversecured creditor. The question remains: when does section 506(c) apply? The following language from the legislative history of the Bankruptcy Reform Act suggests that, when the value of secured property is less than the amount of the secured claim, and when the secured creditor is thus undersecured (as in the instant case), a recovery under section 506(c) is inappropriate: [Section 506(c) ] ... codifies current law by permitting the trustee to recover from property the value of which is greater than the sum of the claims secured by a lien on that property the reasonable, necessary costs and expenses of preserving, or disposing of, the property. S.Rep. No. 989, 95th Cong., 2d Sess. 68, reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5854; H.R.Rep."
},
{
"docid": "23447290",
"title": "",
"text": "MEMORANDUM OPINION MARTIN V.B. BOSTETTER, Jr., Bankruptcy Judge. The issue to be determined here is whether, and to what extent, administrative expenses of the estate may be charged against a secured creditor’s collateral. In general, only expenses incurred directly to preserve or dispose of the property may be charged against the secured creditor’s collateral. Statutory authority for such charges is found in section 506(c) of the Bankruptcy Code. Particular charges must meet a three-prong test to determine their propriety in that the expenses must be; (1) necessary to preserve or dispose of the property; (2) of benefit to the secured creditor; and (3) reasonable. A broader range of charges may be authorized if the court finds the creditor either expressly or impliedly consented to the incurring of the expenses. STATEMENT OF THE LAW Payment of administrative expenses traditionally has been the responsibility of the debtor’s estate, not its secured creditors. In re Flagstaff Food Service Corporation, 739 F.2d 73 (2d Cir.1984); Matter of Trim-X, Inc., 695 F.2d 296 (7th Cir.1982). A trustee has the option to abandon secured property to the lienholder as having no equity for the estate, but if the trustee elects to retain and sell such property “he cannot intrench upon the amount of the secured debt for the payment of any of the expenses of administration such as commissions and similar costs.” Textile Banking Company v. Widener, 265 F.2d 446, 453 (4th Cir.1959). Some costs, however, may be shared with secured creditors pursuant to section 506(c) of the Bankruptcy Code. Section 506(c) provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. 11 U.S.C. § 506(c). This section permits costs to be charged against a secured party only “for acts which directly protect or preserve the collateral in a specified and limited sense.” In re Sonoma V, 24 B.R. 600, 603 (Bankr. 9th Cir.1982). Conversely, the section protects the estate and its general creditors from the cost of preserving"
},
{
"docid": "10197020",
"title": "",
"text": "and costs accruing on the 1981, 1982, and 1983 taxes until the effective date of the plan also are deducted from the fair market value of the real property. See In re Krump, No. 87-10230, slip op. at 8-10 (Bankr.D.S.D. June 7,1988) (Hoyt, J.). On the other hand, the amount of taxes due and owing for 1984, 1985, 1986, and 1987 is not deducted from the fair market value of the real property. The county does not have a secured claim for this amount because of the automatic stay, and, therefore, it is not a proper deduction in a Section 506(a) determination. This unsecured claim for Faulk County real estate taxes is governed by either 11 U.S.C. § 503(b)(l)(B)(i), as an administrative expense entitled to first priority of payment pursuant to 11 U.S.C. § 507(a)(1), or by 11 U.S.C. § 507(a)(7)(B), as a seventh priority claim. See Carlisle Court, 36 B.R. at 214-18. The issues of the proper classification and treatment of these post-petition taxes, and of the related interest and costs, however, are not properly before this Court. The present decision is limited to a determination of the allowed amount of the FLB-O’s secured claim. The debtors argued that the postpe-tition real estate taxes were a “reasonable, necessary cost and expense of preserving the estate” and they should recover the amount of the taxes from the value of the real property under 11 U.S.C. § 506(c). That section provides that “[t]he trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(c). Administrative expenses generally may not be charged against secured collateral. In re Cascade Hydraulics & Util. Serv., Inc., 815 F.2d 546, 548 (9th Cir.1987). The payment of administrative expenses, however, will be allowed from the value of secured collateral when those expenses were incurred directly for the benefit of a secured creditor or when the secured creditor caused or consented to the expense. See id.; Brookfield Production Credit Ass’n"
},
{
"docid": "10560066",
"title": "",
"text": "allowed here as Section 506(c) claims after notice and hearing pursuant to Bankruptcy Rule 9014. The burden of proof is on Debtors to establish that $1,536,000 of disputed pre-petition tax claims and $560,000 of projected, but unallowed, professional fees, are allowable under Section 506(c). Brookfield Production Credit Ass’n. v. Borron, 738 F.2d 951, 952 (8th Cir.1984). Proof of direct benefit is required and the Section 506(c) burden is not met by possible or hypothetical benefits. In re Flagstaff FoodService, Corp., 739 F.2d 73 (2nd Cir.1984) later appealed, 762 F.2d 10 (2nd Cir.1985). Debtors have not met their burden to prove that the $2,273,000 of indicated “Costs to Reorganize”, or any portion thereof, are properly allowable under § 506(c). 26. Because the asserted “Costs to Reorganize” are not properly allowed claims under Section 506(c), they cannot be deducted from the value of Wells Fargo’s collateral. To recover expenses incurred during the bankruptcy proceedings under Section 506(c), the claimant must prove “that the expenses (1) were necessary, (2) benefited [the secured creditor], and (3) were reasonable.” Matter of Trim-X, Inc., 695 F.2d 296, 299 (7th Cir.1982). Traditionally administrative expenses have not been charged against secured creditors. The reason for that rule is that a trustee in bankruptcy acts not on the authority of [secured creditors] and for their interest, but on the authority of the court and for the interest of the general creditors. An exception to that general rule has been recognized, however, when expenses of preservation are incurred primarily for the benefit of the secured creditor ... Id. at 301. (citations omitted) The rationale for this rule applies with equal force to debtors-in-possession as it does to trustees. 27.That portion of the “Costs to Reorganize” relating to professional fees cannot be deducted from the value of Wells Fargo’s collateral. As a general rule, expenses of administration must be satisfied from assets of the estate not subject to liens. Should [Debtor’s] estate have no unencumbered funds, that fact would not obligate [Wells Fargo] as secured creditor to finance a Chapter 11 proceeding except to the limited extent provided by 11 U.S.C."
},
{
"docid": "1101386",
"title": "",
"text": "and, (3) any costs of compliance with environmental statutes are therefore entitled to administrative priority. A trial will take place at which time parties may present additional evidence. E. Requested Surcharge of Bank’s Personal Property Proceeds Dock's Corner claims it is entitled to surcharge the proceeds from the sale of the Bank’s personal property collateral for both unpaid rent and the costs of any environmental clean up. 11 U.S.C. § 506(c). The Bank and Trustee argue that Dock’s Corner lacks standing to surcharge and, even assuming standing exists, Dock’s Corner cannot satisfy the statutory elements to surcharge the Bank’s proceeds. Section 506(c) states: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Section 506(c) is an exception to the traditional rule that administrative expenses may not be charged against the collateral of a secured creditor. Matter of Trim-X, 695 F.2d 296, 301 (7th Cir.1982); Guy v. Grogan (In re Staunton Indus., Inc.), 74 B.R. 501, 504 (Bankr.E.D.Mich.1987); In re Wyckoff, 52 B.R. 164, 166 (Bankr.W.D.Mich.1985). However, a secured creditor may be surcharged when expenses to preserve its property have been incurred by the estate, or the creditor has caused or consented to such expense. Trim-X, 695 F.2d at 301; Staunton Indus., 74 B.R. at 504; Wyckoff, 52 B.R. at 166. 1. Standing to Seek Surcharge Reported cases are divided on the issue of whether a party other than the trustee or debtor in possession may be able to surcharge a secured creditor’s collateral pursuant to § 506(c). Courts holding that a strict interpretation of § 506(c) is required, therefore the trustee is the only party with standing to assert surcharge, include: White Front Feed & Seed, Inc. v. State Nat’l Bank of Platteville (In re Ramaker), 117 B.R. 959 (Bankr.N.D.Iowa 1990); Central States, Southeast and Southwest Areas Pension Fund v. Robbins (In re Interstate Motor Freight Sys., IMFS, Inc.), 86 B.R. 500 (Bankr.W.D.Mich.1988) (herein “Interstate II”); Central States, Southeast and Southwest Areas Pension"
},
{
"docid": "16171642",
"title": "",
"text": "to those expenses. See Cascade Hydraulics, 815 F.2d at 548. A. Necessity and Reasonableness We measure the necessity and reasonableness of the Debtor’s incurred expenses against the benefits obtained for the secured creditor and the amount that the secured creditor would have necessarily incurred through foreclosure and disposal of the property. See In re Chicago Lutheran Hosp. Ass’n, 89 B.R. 719, 727 (Bankr.N.D.Ill.1988). The threshold inquiry is whether the services for which a surcharge is sought were necessary to the secured creditor, here the Banks. We conclude they were not. Had the Banks foreclosed at the outset of the Chapter 11 proceedings, all junior liens, including mechanics liens, would have been eliminated or paid after the Banks’ loan was satisfied. Moreover, the Banks could have internalized many of the post-petition costs incurred by the Debtor and its professionals simply by using in-house resources. In any event, many of the costs were incurred pursuant to the cash-collateral stipulations, and none of those costs would have been incurred had the Banks initially foreclosed on the property. To the extent any of the costs incurred pursuant to the cash-collateral stipulations were necessary to completion of the development and sale of the units, the Debtor and its professionals were paid for those services through the carve-outs in the cash-collateral stipulations. Additional expenses beyond those covered by the carve-outs merely aided the Debtor in its attempt to salvage some equity from the project; they were not necessary to the Banks, nor were they reasonably incurred insofar as the Banks’ recovery was concerned. B. Benefit Not only were the fees and expenses which were the subject of the surcharge motion unnecessary and unreasonable as to the Banks’ recovery, the expenses did not benefit the Banks. “To satisfy the benefit test of section 506(c), [Compton] must establish in quantifiable terms that it expended funds directly to protect and preserve the collateral.” Cascade Hydraulics, 815 F.2d at 548. The amount of the Banks’ benefit limits Compton’s recovery of expenses. See In re Jenson, 980 F.2d 1254, 1260 (9th Cir.1992). “A debtor does not satisfy her burden of proof"
},
{
"docid": "4604526",
"title": "",
"text": "on this motion that the trustee has not waived his right to ask for a surcharge against American’s collateral. Ill. Analysis The estate created by the filing of a bankruptcy case includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” Bankruptcy Code § 541(a)(1), 11 U.S.C. § 541(a)(1) (1979). The bankruptcy estate’s assets are subject to all liens and encumbrances existing when the petition is filed. Central Bank v. Cascade Hydraulics & Utility Service, Inc. (In re Cascade Hydraulics & Utility Service, Inc.), 815 F.2d 546, 548 (9th Cir.1987). These security interests must be respected by the trustee, except to the extent that they may be avoided under the Bankruptcy Code. Administrative expenses and the general costs of reorganization may not generally be charged against secured collateral. Cascade Hydraulics, supra, 815 F.2d at 548; General Electric Credit Corporation v. Levin & Weintraub (In re Flagstaff Foodservice Corp.), 739 F.2d 73, 76 (2d Cir.1984). Administrative expenses may normally be charged only against unsecured assets of the estate. Section 506(c) is not intended as a substitute for the normal recovery of administrative expenses from the debtor’s estate. Brookfield PCA v. Borron, 738 F.2d 951, 953 (8th Cir.1984); In re Trim-X, Inc. 695 F.2d 296, 301 (7th Cir.1983). A surcharge is also not permitted for general expenses of an unsuccessful reorganization effort. In re Combined Crofts Corp., 54 B.R. 294, 297-98 (Bankr.W.D.Wis.1985). The trustee has the burden of proving that his costs and expenses may be surcharged against a creditor’s collateral. See, e.g., Flagstaff, supra, at 77. In this case the trustee claims that he qualifies for an exception to the foregoing rules. A. Statute An exception permitting the surcharge of collateral has long been recognized under the theory of unjust enrichment, where the trustee contributes value to the collateral. This exception is codified in Bankruptcy Code § 506(c), 11 U.S.C. § 506(c) (1979): The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit"
},
{
"docid": "23254691",
"title": "",
"text": "supra; City of Philadelphia v. Stepan Chemical Co., supra. These provisions were enacted to protect the public from the damage caused by hazardous wastes. Since the debtor, as a debt- or in possession under Chapter 11, continued to operate the Long facility, and since the estate had an ownership interest in the drums, these provisions apply in the present case. The court will not permit the estate to escape this liability by abandoning the drums. Since the estate cannot avoid the liability imposed by CERCLA, it follows that the cost incurred by the E.P.A. in discharging this liability is an actual necessary cost of preserving the estate entitled to administrative expense priority. Cf. In re Ver mont Real Estate Investment Trust, 25 B.R. 804 (Bkrtcy.Vt.1982) (expenses incurred in removing dangerous building from debtor’s leasehold treated as administrative expense). The necessity of the expense cannot be questioned since the removal of the wastes was an obligation of the estate under CERCLA. The court recognizes that this decision will deplete the assets of the estate. The success of the E.P.A. in pursuing its administrative claim is achieved at the expense of the creditors of the debtor. The court can sympathize with the creditors but finds that this is a risk which the creditors must bear. Creditors must generally bear the risk of any enterprise. Congress has decided that administrative expenses should be paid prior to other claims against the estate. The estate cannot avoid its legal obligations merely by invoking concern for the general creditors. II The unencumbered assets of the estate are insufficient to pay the administrative expense claim of the E.P.A. The E.P.A., therefore, seeks payment out of funds held by the trustee which are subject to BancOhio’s security interest. The E.P.A. relies on section 506(c) of the Bankruptcy Code which provides: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim”. By its own terms, section 506(c) refers to a trustee’s power to"
},
{
"docid": "23408428",
"title": "",
"text": "the debtor liquidated the inventory that secured its claim, the debtor received less than was owed to Liberty on the debtor’s guaranty. The court has determined that Liberty has an allowed secured claim in the amount of $750,000, an amount that is less than its total claim. Because Liberty is underse-cured, it is not entitled to attorney’s fees and costs pursuant to Section 506(b). In re Broomall Printing Corp., 131 B.R. 32, 35 (Bankr.D.Md.1991) [when the debtor liquidates collateral that is security for the creditor’s claim against it for an amount that is less than the amount of the creditor’s secured claim, the creditor is not entitled to attorney’s fees]. Liberty is therefore not entitled to attorney’s fees on its claim against the debtor in this case. 7. May the debtor surcharge Liberty? The plaintiff also seeks to surcharge Liberty by recovering the monies paid by the debtor to administer and sell its encumbered assets for the ultimate benefit of Liberty pursuant to Section 506(c) of the Bankruptcy Code. As a general rule, the costs of administering the debtor’s estate are not charged against a secured creditor’s collateral. Precision Steel Shearing, Inc. v. Fremont Financial Corp. (In re Visual Industries, Inc.), 57 F.3d 321, 324 (3d Cir.1995). Section 506(c) of the Bankruptcy Code, however, allows the trustee, or in this case the unsecured creditors committee standing in the debt- or’s shoes, to “recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” Courts have limited recovery under this section to “expenses that are specifically incurred for the express purpose of ensuring that the property is preserved and disposed of in a manner that provides the secured creditor with a maximum return on the debt and also apportions those costs to the secured creditor who, realistically, is assuming the asset.” United Jersey Bank v. Miller (In re C.S. Associates), 29 F.3d 903, 907 (3d Cir.1994). In other words, the Section 506(c) surcharge applies when the estate incurs expenses"
},
{
"docid": "16171640",
"title": "",
"text": "estate. The Banks contend that in this circumstance, 11 U.S.C. § 506(c) does not permit a surcharge motion to be brought by a Debtor. Compton, as the debtor-in-possession, has standing to bring a § 506(c) surcharge motion. 11 U.S.C. § 1107(a). Compton owes its professionals the money that it seeks through the surcharge motion. Compton incurred its professionals’ fees and expenses to preserve and dispose of the residential development that was the subject of the Chapter 11 reorganization, and a recovery of those fees and expenses would redound to the benefit of the estate’s administrative creditors. We, therefore, consider Compton’s § 506(c) claim on its merits. II. Compton’s § 506(c) Claim We apply the same standard of review to the bankruptcy court’s decision as the district court did, affording the district court’s decision no added weight. See In re Lazar, 83 F.3d 306, 308 (9th Cir. 1996). We apply a clearly erroneous standard to the bankruptcy court’s findings of fact and review its conclusions of law de novo. See Id. The Debtor’s request for a surcharge covers the following services: (1) sales procedures and approvals required by the cash-collateral stipulation; (2) evaluation and removal of mechanics’ liens; (3) title, sales, escrow, closing costs, and evaluation efforts; (4) costs associated with the surcharge motion; and (5) construction, operation, and marketing costs. “We allow payment of administrative expenses from the proceeds of secured collateral when incurred primarily for the benefit of the secured creditor or when the secured creditor caused or consented to the expense.” In re Cascade Hydraulics & Utility Serv., Inc., 815 F.2d 546, 548 (9th Cir.1987). The controlling provision of the Bankruptcy Code is 11 U.S.C. § 506(c) which provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Under § 506(c), therefore, Compton must demonstrate that the expenses it seeks to surcharge against the Banks were reasonable, necessary, and beneficial to the Banks’ recovery, or that the Banks caused or consented"
},
{
"docid": "23408429",
"title": "",
"text": "of administering the debtor’s estate are not charged against a secured creditor’s collateral. Precision Steel Shearing, Inc. v. Fremont Financial Corp. (In re Visual Industries, Inc.), 57 F.3d 321, 324 (3d Cir.1995). Section 506(c) of the Bankruptcy Code, however, allows the trustee, or in this case the unsecured creditors committee standing in the debt- or’s shoes, to “recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” Courts have limited recovery under this section to “expenses that are specifically incurred for the express purpose of ensuring that the property is preserved and disposed of in a manner that provides the secured creditor with a maximum return on the debt and also apportions those costs to the secured creditor who, realistically, is assuming the asset.” United Jersey Bank v. Miller (In re C.S. Associates), 29 F.3d 903, 907 (3d Cir.1994). In other words, the Section 506(c) surcharge applies when the estate incurs expenses to liquidate collateral for the sole or primary benefit of a secured creditor rather than the estate. The party seeking to charge the costs of administering and disposing of the debtor’s assets to a specific creditor has the “burden of proving that his costs and expenses may be surcharged against a creditor’s collateral.” American Savings & Loan Association v. Gill (In re North County Place, Ltd.), 92 B.R. 437, 443 (Bankr.C.D.Cal.1988). The plaintiff must show that the costs incurred in preserving or administering the debtor’s assets resulted in a quantifiable benefit to the creditor. Id. at 445. The question of “whether a benefit has been conferred on a creditor is one of fact.” New York National Bank v. First Fidelity Bank, 1991 WL 208813 *3 (D.N.J.). If the plaintiff successfully argues that the secured creditor received a quantifiable benefit from the sale or disposition of its collateral, then the fees and costs of the sale that inured to the secured creditor’s benefit may be surcharged from the value of its collateral. The costs and expenses,"
},
{
"docid": "4604527",
"title": "",
"text": "Section 506(c) is not intended as a substitute for the normal recovery of administrative expenses from the debtor’s estate. Brookfield PCA v. Borron, 738 F.2d 951, 953 (8th Cir.1984); In re Trim-X, Inc. 695 F.2d 296, 301 (7th Cir.1983). A surcharge is also not permitted for general expenses of an unsuccessful reorganization effort. In re Combined Crofts Corp., 54 B.R. 294, 297-98 (Bankr.W.D.Wis.1985). The trustee has the burden of proving that his costs and expenses may be surcharged against a creditor’s collateral. See, e.g., Flagstaff, supra, at 77. In this case the trustee claims that he qualifies for an exception to the foregoing rules. A. Statute An exception permitting the surcharge of collateral has long been recognized under the theory of unjust enrichment, where the trustee contributes value to the collateral. This exception is codified in Bankruptcy Code § 506(c), 11 U.S.C. § 506(c) (1979): The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Congress’ express intent in enacting section 506(c) was to assure that, any time a debtor in possession “expends money to provide for the reasonable and necessary costs and expenses of preserving or disposing of a secured creditor’s collateral, the ... debtor in possession is entitled to recover such expenses from the secured party or from the property securing an allowed secured claim held by such party.” 124 Cong.Rec. 32398 (cum. ed. Sept. 28, 1978) (statement of Rep. Edwards), reprinted in 1978 U.S.Code Cong. & Admin. News 6451. The trustee also argues that Bankruptcy Code § 552(b) permits the Court to award a surcharge based on the equities of the case. This argument is misplaced. Section 552(b) gives the Court equitable power to limit the application of a pre-petition security interest to post-petition “proceeds, product, offspring, rents, or profits”. But where as here the security at issue is the original security, section 552(b) does not give the Court any power to impose expenses on the secured creditor. Any such power"
},
{
"docid": "4476423",
"title": "",
"text": "the approximate $31,000 of available unencumbered funds in the debtor’s estate and with the remaining deficiency of $181,342 being recovered from the monies received by the debtor following the auction sale of the FDIC’s collateral. DISCUSSION A. Recovery of Attorneys’ Fees under 11 U.S.C. § 506(c) Generally, the normal administrative expenses of the bankruptcy estate may not be recovered from secured claim holders because the trustee acts not for their benefit but for the benefit of the estate and its unsecured claimants. General Elec. Credit Corp. v. Levin & Weintraub (In re Flagstaff Foodservice Corp.), 739 F.2d 73, 76 (2d Cir.1984) (hereinafter Flagstaff I); In re Trim-X, Inc., 695 F.2d 296, 301 (7th Cir.1982); In re Codesco, Inc., 18 B.R. 225, 228 (Bankr.S.D.N.Y.1982). Section 506(c), however, is the exception to the general rule, applicable when expenses of preservation are incurred primarily for the benefit of the secured interest or where the secured claim holder caused or consented to the accrual of such expenses. Flagstaff I, 739 F.2d at 76; In re Trim-X Inc., 695 F.2d at 301; In re Codesco, Inc., 18 B.R. at 228. Section 506(c) provides that the “trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(e). Attorneys’ fees may properly be recovered under § 506(c) to the extent of the benefit provided so long as: (i) the services were necessary in order to preserve or dispose of the secured creditor’s property; (ii) the amounts charged for such services were reasonable; and (iii) the expenses were incurred for the primary benefit of the secured creditor. General Elec. Credit Corp. v. Peltz (In re Flagstaff Foodservice Corp.), 762 F.2d 10, 12 (2d Cir.1985) (hereinafter Flagstaff II); Flagstaff I, 739 F.2d at 75-76; In re Codesco, Inc., 18 B.R. at 229. The burden to prove entitlement to fees under § 506(c) rests with the movant, Flagstaff II, 762 F.2d at 12, and the burden is a heavy one, In re"
},
{
"docid": "4476424",
"title": "",
"text": "at 301; In re Codesco, Inc., 18 B.R. at 228. Section 506(c) provides that the “trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” 11 U.S.C. § 506(e). Attorneys’ fees may properly be recovered under § 506(c) to the extent of the benefit provided so long as: (i) the services were necessary in order to preserve or dispose of the secured creditor’s property; (ii) the amounts charged for such services were reasonable; and (iii) the expenses were incurred for the primary benefit of the secured creditor. General Elec. Credit Corp. v. Peltz (In re Flagstaff Foodservice Corp.), 762 F.2d 10, 12 (2d Cir.1985) (hereinafter Flagstaff II); Flagstaff I, 739 F.2d at 75-76; In re Codesco, Inc., 18 B.R. at 229. The burden to prove entitlement to fees under § 506(c) rests with the movant, Flagstaff II, 762 F.2d at 12, and the burden is a heavy one, In re Emons Indus., 50 B.R. 692, 695 (Bankr.S.D.N.Y.1985). Thus, it must be determined whether Kaye, Scholer has merits burden in the instant case. As of the petition date, the secured creditor, the FDIC, had a claim for $6.8 million which was secured by the value of the Restaurant Parcel and Marina. It is the position of both the FDIC and the U.S. Trustee that Kaye, Scholer has failed to show that it conferred a benefit upon the FDIC and therefore its request for attorneys’ fees pursuant to § 506(c) must be denied. Such a contention is not supported by the record. Kaye, Seholer’s representation of the debt- or in its Chapter 11 reorganization caused actual benefits to be conferred upon the FDIC as a secured creditor and resulted in the accrual of legal fees and expenses which were incurred for the primary benefit of the FDIC. Kaye, Scholer points to the following significant achievements as benefitting the FDIC by increasing the value of the FDIC’s collateral: (i) the negotiation of a stipulation for the use of"
},
{
"docid": "16171641",
"title": "",
"text": "surcharge covers the following services: (1) sales procedures and approvals required by the cash-collateral stipulation; (2) evaluation and removal of mechanics’ liens; (3) title, sales, escrow, closing costs, and evaluation efforts; (4) costs associated with the surcharge motion; and (5) construction, operation, and marketing costs. “We allow payment of administrative expenses from the proceeds of secured collateral when incurred primarily for the benefit of the secured creditor or when the secured creditor caused or consented to the expense.” In re Cascade Hydraulics & Utility Serv., Inc., 815 F.2d 546, 548 (9th Cir.1987). The controlling provision of the Bankruptcy Code is 11 U.S.C. § 506(c) which provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. Under § 506(c), therefore, Compton must demonstrate that the expenses it seeks to surcharge against the Banks were reasonable, necessary, and beneficial to the Banks’ recovery, or that the Banks caused or consented to those expenses. See Cascade Hydraulics, 815 F.2d at 548. A. Necessity and Reasonableness We measure the necessity and reasonableness of the Debtor’s incurred expenses against the benefits obtained for the secured creditor and the amount that the secured creditor would have necessarily incurred through foreclosure and disposal of the property. See In re Chicago Lutheran Hosp. Ass’n, 89 B.R. 719, 727 (Bankr.N.D.Ill.1988). The threshold inquiry is whether the services for which a surcharge is sought were necessary to the secured creditor, here the Banks. We conclude they were not. Had the Banks foreclosed at the outset of the Chapter 11 proceedings, all junior liens, including mechanics liens, would have been eliminated or paid after the Banks’ loan was satisfied. Moreover, the Banks could have internalized many of the post-petition costs incurred by the Debtor and its professionals simply by using in-house resources. In any event, many of the costs were incurred pursuant to the cash-collateral stipulations, and none of those costs would have been incurred had the Banks initially foreclosed on the property. To"
},
{
"docid": "23002418",
"title": "",
"text": "That exception has been codified in section 506(c) of the Bankruptcy Code, which provides: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” The entity seeking to recover costs under 11 U.S.C. § 506(e) bears the burden of proving that the exception is applicable. Combined Crofts, 54 B.R. at 297; Korupp Associates, 30 B.R. at 661; Dozoryst v. First Financial Savings and Loan Association of Downers Grove, 21 B.R. 392, 394 (N.D.Ill.1982). To recover expenses under 11 U.S.C. § 506(c), the applicant must prove that the expenses were 1) reasonable, 2) necessary, and 3) beneficial to the secured creditor. In re Kotter, 59 B.R. 266, 269 (Bankr.C.D.Ill.1986); In re Loop Hospital Partnership, 50 B.R. 565, 571 (Bankr.N.D.Ill.1985). A determination of whether the costs and expenses meet the requirements of 11 U.S.C. § 506(c) will depend upon the particular facts of each case. 3 Collier on Bankruptcy, ¶ 506.06 at 506-54. (15th ed. 1988). Whether the costs sought under 11 U.S.C. § 506(c) are reasonable is often determined by a comparison of the costs to the costs which the secured creditor would have incurred in foreclosing on the property on its own behalf. See Kotter, 59 B.R. at 269. See also Combined Crofts, 54 B.R. at 297; Codesco, 18 B.R. at 228. The next level of inquiry is whether the alleged expenses were necessary. “ ‘Necessary’ costs are those which are unavoidably incurred by the trustee or debtor-in-possession in the preservation or disposal of the secured property.” Combined Crofts, 54 B.R. at 297. The Seventh Circuit takes a very narrow approach to what is a “necessary” expense under 11 U.S.C. § 506(c). In Trim-X, supra, the Seventh Circuit looked to determine whether a trustee could recover, as administrative expenses, the costs he incurred in preserving property of the estate which was eventually abandoned to the secured creditor under 11 U.S.C. § 554. The Seventh Circuit held that the expenses which were incurred before the"
},
{
"docid": "10560067",
"title": "",
"text": "of Trim-X, Inc., 695 F.2d 296, 299 (7th Cir.1982). Traditionally administrative expenses have not been charged against secured creditors. The reason for that rule is that a trustee in bankruptcy acts not on the authority of [secured creditors] and for their interest, but on the authority of the court and for the interest of the general creditors. An exception to that general rule has been recognized, however, when expenses of preservation are incurred primarily for the benefit of the secured creditor ... Id. at 301. (citations omitted) The rationale for this rule applies with equal force to debtors-in-possession as it does to trustees. 27.That portion of the “Costs to Reorganize” relating to professional fees cannot be deducted from the value of Wells Fargo’s collateral. As a general rule, expenses of administration must be satisfied from assets of the estate not subject to liens. Should [Debtor’s] estate have no unencumbered funds, that fact would not obligate [Wells Fargo] as secured creditor to finance a Chapter 11 proceeding except to the limited extent provided by 11 U.S.C. § 506(c) ... In re EES Lambert Associates, 62 B.R. 328, 338 (Bankr.N.D.Ill.1986) (citations omitted). This Court, in EES Lambert, cited with approval the following language from In re American Resources Management Corp., 51 B.R. 713, 719 (Bankr.D. Utah 1985): Post-petition attorneys’ and accountants’ fees are administrative expenses and may not be given priority over existing liens and superpriority claims_ Unless there is equity in the collateral, administrative claimants cannot look to a creditor’s encumbered property to provide a source of payment for their claims. (Emphasis added). Here, since Wells Fargo’s lien encumbers all assets of the Debtors' estate, “Costs to Reorganize” cannot be satisfied from, or deducted from, the value of Wells Fargo’s collateral. 28. The pre-petition priority tax claims of $1,536,000 did not directly benefit Wells Fargo, were not incurred to preserve Wells Fargo’s collateral, and did not actually benefit Wells Fargo. “Pre-petition expenses are generally not recoverable under § 506(c).” 3 Collier on Bankruptcy, ¶ 506.06, pp. 506-59 (15th Ed. 1989). In re Flagstaff Foodservice Corp., 762 F.2d 10, 13 (2nd Cir.1985)"
},
{
"docid": "23002417",
"title": "",
"text": "257 F.2d 310 (7th Cir.1958). The general rule is that the costs of administration of the estate and attorney fees for services rendered to the debtor in possession are charged against the estate. In re Korupp Associates, Inc., 30 B.R. 659 (Bankr.D.Me.1983). This rule is based on the premise that the trustee represents the interests of the unsecured creditors and not the secured creditors. Matter of Combined Crofts Corp., 54 B.R. 294, 297 (Bankr.W.D.Wis.1985); Trim-X, 695 F.2d at 301. However, an exception to that general rule has been recognized where expenses have been incurred primarily for the benefit of the secured creditor, or where the secured creditor caused or consented to those charges. Combined Crofts, 54 B.R. at 297; Trim-X, 695 F.2d at 301. “The underlying rationale for charging a lien-holder with the costs and expenses of preserving or disposing of the secured collateral is that the general estate and unsecured creditors should not be required to bear the cost of protecting what is not theirs.” In re Codesco, Inc., 18 B.R. 225, 230 (Bankr.S.D.N.Y.1982). That exception has been codified in section 506(c) of the Bankruptcy Code, which provides: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” The entity seeking to recover costs under 11 U.S.C. § 506(e) bears the burden of proving that the exception is applicable. Combined Crofts, 54 B.R. at 297; Korupp Associates, 30 B.R. at 661; Dozoryst v. First Financial Savings and Loan Association of Downers Grove, 21 B.R. 392, 394 (N.D.Ill.1982). To recover expenses under 11 U.S.C. § 506(c), the applicant must prove that the expenses were 1) reasonable, 2) necessary, and 3) beneficial to the secured creditor. In re Kotter, 59 B.R. 266, 269 (Bankr.C.D.Ill.1986); In re Loop Hospital Partnership, 50 B.R. 565, 571 (Bankr.N.D.Ill.1985). A determination of whether the costs and expenses meet the requirements of 11 U.S.C. § 506(c) will depend upon the particular facts of each case. 3 Collier on Bankruptcy, ¶ 506.06"
},
{
"docid": "4541806",
"title": "",
"text": "II of the Complaints. 4. THE LANDLORDS HAVE NOT MET THEIR BURDEN OF PROOF REGARDING THE EXTENT, NECESSITY-, AND BENEFIT OF THEIR POST-PETITION SERVICES AND EXPENDITURES TO THE DEFENDANTS, NOR HAVE THEY ESTABLISHED THAT THE DEFENDANTS CONSENTED TO PAYMENT OF ANY OF THEIR CLAIMS; THEREFORE, THEY ARE NOT ENTITLED TO SURCHARGE THE HEICO DEFENDANTS’ COLLATERAL PURSUANT TO 11 U.S.C. § 506(c). In Counts III of the Complaints, the Landlords seek to surcharge the Heico Defendants’ collateral pursuant to 11 U.S.C. § 506(e) which states: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” This court has devised two alternative tests for determining whether a secured creditor is obliged to reimburse the costs of movant’s acts of preserving or disposing of the secured creditor’s collateral under § 506(c). In re Orfa Corp. of Philadelphia, 149 B.R. 790, 799 (Bankr.E.D.Pa.1998) (“Orfa /”), vacated on other grounds, 1994 WL 163666 (E.D.Pa. April 26, 1994) (“Orfa II”)-, and In re Cann & Saul Steel Co., 86 B.R. 413, 418 (Bankr.E.D.Pa.1988). The first test, which tracks the language of § 506(c), is known as the objective test. The objective test seeks to determine if the secured creditor has benefitted by the movant’s efforts, and if so, the value of that benefit to the secured creditor. See Orfa II, supra, slip op. at *13; Orfa I, supra, 149 B.R. at 798-99; and Cann & Saul, supra, 86 B.R. at 418. In order to satisfy the objective test, the movant must show that (1) its expenditures or services were necessary, (2) the amounts expended or services rendered were reasonable, and (3) the secured creditor benefitted from the expenditures or services. See Orfa II, supra, slip op. at *13; Mechanical Maintenance, supra, 128 B.R. at 389; and In re Trenge, 127 B.R. 552, 555 (E.D.Pa.1991). The second test, known as the subjective test, queries whether the secured creditor consented to the expenditures which the movant seeks to recoup. See Orfa II,"
},
{
"docid": "23254692",
"title": "",
"text": "of the E.P.A. in pursuing its administrative claim is achieved at the expense of the creditors of the debtor. The court can sympathize with the creditors but finds that this is a risk which the creditors must bear. Creditors must generally bear the risk of any enterprise. Congress has decided that administrative expenses should be paid prior to other claims against the estate. The estate cannot avoid its legal obligations merely by invoking concern for the general creditors. II The unencumbered assets of the estate are insufficient to pay the administrative expense claim of the E.P.A. The E.P.A., therefore, seeks payment out of funds held by the trustee which are subject to BancOhio’s security interest. The E.P.A. relies on section 506(c) of the Bankruptcy Code which provides: “The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim”. By its own terms, section 506(c) refers to a trustee’s power to recover expenses from a secured creditor. The E.P.A. argues that it stands in the shoes of the trustee since it performed a duty imposed upon the trustee to remove the hazardous wastes. The court agrees with the E.P.A. Since the' E.P.A. discharged a duty of the trustee, it may seek recovery from the funds claimed by BancOhio to the same extent as the trustee. Section 506(c) represents an exception to the traditional rule that the costs of administration of a bankruptcy estate may not be charged against secured creditors. In re Trim-X, Inc., 695 F.2d 296 (7th Cir.1982); In re Tyne, 257 F.2d 310 (7th Cir.1958). Normally a trustee acts for the benefit of the general creditors. Where the trustee acts for the benefit of secured creditors, however, the estate should not bear the cost. Brookfield Production Credit Association v. Borron, 738 F.2d 951 (8th Cir.1984); In re Afco Enterprises, Inc., 35 B.R. 512, 11 B.C.D. 295 (Bkrtcy.D. Utah 1983); In re Codesco, Inc., 18 B.R. 225, 8 B.C.D. 1089 (Bkrtcy.S.D.N.Y.1982). The trustee must bear"
}
]
|
570811 | in the section, a promise given in consideration of his relinquishment of his office. Id. at 754-56, 79 F.Supp. 208. Although the court employed the language of contracts (“promise given in consideration”), it is clear that the court was merely parroting the conditions of the authorizing statute, 28 U.S.C. § 375, which pertained to judges on the bench for at least 10 years, who had at attained 70 years of age, and who tendered their resignation. In the instant case, the only statute proffered by the plaintiffs is the Severance Pay Act, which was discussed earlier and found to be inapplicable. Thus, in this court’s view, Johnson is distinguishable from the instant case. Plaintiffs also call the court’s attention to REDACTED rev’d on other grounds, 64 F.3d 647 (Fed.Cir.1995), aff'd by an equally divided court, United States v. Hatter, 519 U.S. 801, 117 S.Ct. 39, 136 L.Ed.2d 3 (1996). The trial court in Hatter, however, also distinguished Johnson, and concluded that: “At best for plaintiffs, Johnson holds that judges who resign from office in reliance on future retirement payments may have a contract remedy.... Plaintiffs have cited no controlling authority indicating a possible contract claim. In our view, no such claim exists.” Id. at 447 (citations omitted). In contrast, the analysis of the Federal Circuit in Hamlet controls the instant facts. Louise Hamlet brought her claim, like the plaintiffs in this case, after separation from the agency in question. Ms. Hamlet, like the | [
{
"docid": "6982330",
"title": "",
"text": "unnecessary to the holding of the case and thus a textbook example of dicta. Plaintiffs claim that even if Embry is distinguishable, this case falls squarely under the rule of Johnson v. United States, 111 Ct.Cl. 750, 79 F.Supp. 208 (1948). Tr. at 66. Again, we disagree. Johnson involved a judge who resigned from office. The Court of Claims found that such a judge has a contract or property right to his retirement pay. 111 Ct.Cl. at 756, 79 F.Supp. at 211. Without assessing the validity of this Johnson holding today, we note that a judge who resigns (as the plaintiff did in Johnson) is no longer a federal officeholder. Booth v. United States, 291 U.S. 339, 348-50, 54 S.Ct. 379, 380-81, 78 L.Ed. 836 (1934). At best for plaintiffs, Johnson holds that judges who resign from office in reliance on future retirement payments may have a contract remedy. The Johnson case has no applicability to cases involving compensation for sitting Article III judges. Plaintiffs have cited no controlling authority indicating a possible contract claim. PI. Reply at 27-29; Tr. at 31-37, 65-66. In our view, no such claim exists. Y Plaintiffs’ contention that the extension of Social Security taxes to sitting Article III judges violated the Compensation Clause is a pure question of constitutional law. There are no material facts in dispute. Therefore, defendant is entitled to judgment on Counts I and II, (Second Am.Cplt. at 7-8), as a matter of law. RCFC 56(c). Plaintiffs’ contention that they have a contract right to compensation is likewise a pure question of law involving no disputed material facts. Therefore, defendant is entitled to judgment on the contract claim, (Count III, Second Am.Cplt. at 8-9), as a matter of law. RCFC 56(c). Based on the foregoing, plaintiffs’ motion for summary judgment is DENIED, and defendant’s cross-motion for summary judgment is GRANTED. Accordingly, judgment shall be entered in favor of defendant. Each party shall bear its own costs. . The letter is found at 157 U.S. 701. There was a 32-year lapse between the 1863 order of the Court recording the letter and"
}
]
| [
{
"docid": "6066337",
"title": "",
"text": "money and cannot form the basis of this Court’s Tucker Act jurisdiction. White Mountain, 537 U.S. at 472-73, 123 S.Ct. 1126; Fisher, 402 F.3d at 1174; cf. District of Columbia v. United States, 67 Fed.Cl. 292, 305 (2005) (finding Transfer Act’s “is direeted-to-pay” language to be money-mandating). Breach of Contract In the alternative, Plaintiff claims this Court has jurisdiction over this action because GSA breached a three-year employment contract with him. Plaintiffs Opposition to Defendant’s Motion to Dismiss (Pl. Opp.) at 11. However, there is a “well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir.1985)); see also Bigler v. United States, 230 Ct.Cl. 985, 986, 1982 WL 25297 (1982) (“public employment is presumptively not by contract; it is instead accomplished by appointment and controlled by statute, regulation, and Executive Order” (citations omitted)). As the Federal Circuit explained in Hamlet: [Ujnder the Tucker Act, “if Hamlet’s employment was by ‘appointment,’ a breach of contract action against the government would be precluded.” CAFC Hamlet I, 873 F.2d at 1417 n. 5 (citing Hopkins, 427 U.S. at 128, 96 S.Ct. at 2511-12; Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 738, 102 S.Ct. 2118, 72 L.Ed.2d 520 ... (1982)). In Sheehan, the Supreme Court examined the record and the relevant agency regulations and concluded that the respondent in that case was employed by appointment, rather than by contract, and, thus, the Tucker Act did not confer jurisdiction over the respondent’s contract claim against the United States for money damages. Sheehan, 456 U.S. at 735-37, 102 S.Ct. 2118. 63 F.3d at 1101. Here, as in Sheehan, Plaintiff is employed by appointment, not contract, as he is admittedly an appointed employee of GSA. The agency’s October 16, 1997 letter to Plaintiff states “[tjhis letter is to confirm your appointment to be effective November 9, 1997.” Appendix to PI. Opp. (Pl.App.) at 2."
},
{
"docid": "11276101",
"title": "",
"text": "Albert W. Johnson (or to his estate), formerly district judge of the District Court of the United States for the Middle District of Pennsylvania, who resigned as such judge on July 3, 1945, and who, on July 14, 1945, renounced and relinquished his rights under section 260 of the Judicial Code to receive the salary therein provided for judges who resign after having served at least ten years and having attained the age of seventy years.” When -this act is read in context with section 6 of the act of February 25, 1919, ch. 29, 40 Stat. 1157, 28 U.S.C.A. § 375, the pertinent statutory law may be paraphrased as follows: When any judge, except Albert Williams Johnson, of any court of the United States, appointed to hold his office during good behavior, resigns his office after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his resignation for the office that he held at the time of his resignation. * * * The question arises, why is Albert Williams Johnson singled out from all the other persons who answer the general description given in the statute ? The answer is plain. He is being punished. And who tried him and found him deserving of punishment? The Committee on the Judiciary of the House of Representatives. The act of June 24, 1946, is a Bill of Pains and Penalties, which, according to the precedents, is a Bill of Attainder, as that expression is used in the Constitution. I think that the act of June 24, 1946, is unconstitutional and is, therefore, no bar to the plaintiff’s action. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L. Ed. 1252; affirming Lovett v. United States, 66 F.Supp. 142, 104 Ct.Cl. 557. The Constitutional power of Congress to try and punish offenses, other than the offense of contempt of Congress, is limited to"
},
{
"docid": "11276100",
"title": "",
"text": "created an equitable defense to the plaintiff’s present claim. I think it had no effect whatever, and I think that to allow a committee of one branch of Congress to bargain the plaintiff out of a right given him by a regularly enacted statute would be a contradiction of the court’s own analysis of the plaintiff’s rights under that statute as being contractual. If they were contractual, which I think they were not, how could a committee of the House of Representatives modify a contract which Congress as a whole had made? It follows from what I have said that I think that the question of whether the plaintiff was of sound mind or not when he purported to renounce his statutory right is irrelevant, and I would not direct this court’s commissioner to inquire into it. The Government’s ultimate reliance is on the act of June 24, 1946, 60 Stat. 304. Its text is as follows: “That after July 14, 1945, no payments shall be made under section 260 of the Judicial Code to Albert W. Johnson (or to his estate), formerly district judge of the District Court of the United States for the Middle District of Pennsylvania, who resigned as such judge on July 3, 1945, and who, on July 14, 1945, renounced and relinquished his rights under section 260 of the Judicial Code to receive the salary therein provided for judges who resign after having served at least ten years and having attained the age of seventy years.” When -this act is read in context with section 6 of the act of February 25, 1919, ch. 29, 40 Stat. 1157, 28 U.S.C.A. § 375, the pertinent statutory law may be paraphrased as follows: When any judge, except Albert Williams Johnson, of any court of the United States, appointed to hold his office during good behavior, resigns his office after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the"
},
{
"docid": "21343997",
"title": "",
"text": "of Pennsylvania, who resigned as such judge on July 3, 1945, and who, on July 14, 1945, renounced and relinquished his rights under Section 260 of the Judicial Code to receive the salary therein provided for judges who resign after having served at least ten years and having attained the age of seventy years. When this act is read in context with Section 6 of the act of February 25, 1919, ch. 29, 40 Stat. 1157, 28 U. S. C. 375, the pertinent statutory law may be paraphrased as follows: When any judge, except Albert Williams Johnson, of any court of the United States, appointed to hold his office during good behavior, resigns his office after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his resignation for the office that he held at the time of his resignation. * * * The question arises, why is Albert Williams Johnson singled out from all the other persons who answer the general description given in the statute ? The answer is plain. He is being punished. And who tried him and found him deserving of punishment ? The Committee on the Judiciary of the House of Kepresentatives. The act of June 24,1946, is a Bill of Pains and Penalties, which, according to the precedents, is a Bill of Attainder, as that expression is used in the Constitution. I think that the act of June 24, 1946, is unconstitutional and is, therefore, no bar to the plaintiff’s action. United States v. Lovett, 328 U. S. 303, affirming Lovett v. United States, 104 C. Cls. 557. The Constitutional power of Congress to try and punish offenses, other than the offense of contempt of Congress, is limited to impeachment of public officers. The Constitution provides for the procedure, which is, in effect, indictment by the House of Representatives and trial by the Senate, a two-thirds vote in"
},
{
"docid": "3038175",
"title": "",
"text": "original ten judges a few days short of six years from when that cause of action arose, the suit on that claim is not barred. The rather convoluted accounting the trial judge found himself enmeshed in because of the theory of the case that was adopted in the trial court is wholly irrelevant; therefore we express no opinion thereon. CONCLUSION The judgment of the Court of Federal Claims is reversed, and the matter remanded to that court for further proceedings consistent with this opinion. REVERSED AND REMANDED. . The history of this case involves the following six decisions: Hatter v. United States, 21 Cl.Ct. 786 (1990) (Hatter I), Hatter v. United States, 953 F.2d 626 (Fed.Cir.1992) (Hatter II), Hatter v. United States, 31 Fed.Cl. 436 (1994) (Hatter III), Hatter v. United States, 64 F.3d 647 (Fed.Cir.1995) (Hatter IV), United States v. Hatter, 519 U.S. 801, 117 S.Ct. 39, 136 L.Ed.2d 3 (1996) (Hatter V), and Hatter v. United States, 38 Fed.Cl. 166 (1997) (Hatter VI). . The absence of a quorum resulted from re-cusals, presumably by Justices who could be affected by the outcome of the case. The members of the panel of this court who decided the earlier appeals and who are participating in this decision were all appointed subsequent to the events, and thus are not affected by the outcome. .We follow the designation of the Court of Federal Claims, which referred to the plaintiffs filing the original complaint as the \"original” judges and those who joined or rejoined (after not joining the appeal of Hatter I) the amended complaints as the “later-filing” judges. . The extent of the trivialization is illustrated by the damage award made by the trial court: the judges alleged that their out-of-pocket losses from the unconstitutional imposition varied between $20,000 to $56,000, with an average of about $47,000; the trial court’s judgment awarded a total of $329 to the district judges and $348 to the appellate judge, plus interest. . See also United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980); O’Malley v. Woodrough, 307 U.S. 277, 59"
},
{
"docid": "17386497",
"title": "",
"text": "427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976), the Supreme Court noted that the Federal government in that case could employ persons by contract and held that plaintiff’s claim for breach of contract was sufficient, under the provisions of the Tucker Act, to withstand a motion to dismiss for lack of jurisdiction. See also Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 739 n. 11, 102 S.Ct. 2118, 2125 n. 11, 72 L.Ed.2d 520 (1982) (distinguishing cases not involving appointment “where contracts were inferred from regulations promising payment.”). We cannot say that there is no set of facts Hamlet could prove which would entitle her to relief based on her allegations that an implied-in-fact contract had been created by the personnel manual provisions covering her employment and that this contract was breached as a result of her removal. D. Finally, the Claims Court held that Hamlet was not an “employee” duly appointed under the provisions of 5 U.S.C. § 2105(a) (1982) and was therefore not entitled to compensation for an unjustified or unwarranted personnel action under the Back Pay Act, 5 U.S.C. § 5596 (1982 & Supp. V 1987). Hamlet, 14 Cl.Ct. at 65-67. Hamlet’s regulatory claim, however, was not based on the Back Pay Act. Rather, her complaint indicates that her claim for back pay and reinstatement is premised solely on the ASCS personnel regulations governing her employment and appended to her complaint. The Claims Court did not address this issue in the complaint on the basis upon which it was founded. Thus, dismissal of Hamlet’s regulatory claim was improper as a matter of law. III For the reasons expressed, we conclude that the Claims Court improvidently dismissed Hamlet’s complaint and we remand the case for further consideration or for trial. We note that the Claims Court’s jurisdiction to entertain any of Hamlet’s claims depends on whether or not the ASCS personnel manual provisions, upon which she relies, can properly be construed as money-mandating, a matter that was not considered by the Claims Court. United States v. Testan, 424 U.S. at 398-400, 96 S.Ct."
},
{
"docid": "3688293",
"title": "",
"text": "department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, “is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). When a contract is not involved, to invoke jurisdiction under the Tucker Act, a plaintiff must identify a constitutional provision, a statute, or a regulation that provides a substantive right to money damages. See Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). In other words, the plaintiff “must assert a claim under a separate money-mandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States.” James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998). For military personnel, 37 Ú.S.C. § 204 is a money-mandating statute. Section 204 provides that “a member of the uniform service who is on active duty” is “entitled to the basic pay of the pay grade to which assigned.” An officer’s right to pay under section 204 continues until the officer is properly separated from the service. See Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 810 (Ct.Cl.1979) (en banc) (stating that § 204 “confers on an officer the right to pay of the rank he was appointed to up until he is properly separated from the service” and serves as the basis for Tucker Act jurisdiction where a discharge is wrongful). If Tippett’s discharge was involuntary and improper, his statutory right to pay was not extinguished and thus serves as a basis for Tucker Act jurisdiction. See Adkins, 68 F.3d at 1321. If, however, Tippett’s discharge was voluntary, his right to pay ended upon his discharge. He thus would have retained no statutory entitlement to compensation, and consequently no money-mandating provision would support Tucker Act jurisdiction over his claim. See id. An otherwise voluntary resignation or request for discharge is rendered involuntary if it is submitted"
},
{
"docid": "17386496",
"title": "",
"text": "similar to those in Jackson v. United States, 428 F.2d 844, 192 Ct.Cl. 765 (1970), and Swaaley v. United States, 376 F.2d 857, 180 Ct.Cl. 1 (1967) , which were distinguished in Con nolly, 716 F.2d at 887. In dismissing the constitutional count, the Claims Court did not consider whether the personnel manual provisions for back pay upon reinstatement were sufficient to support Hamlet’s monetary claim. Rather, its holding was predicated on the principle that First and Fifth Amendment violations alone do not mandate the payment of money. See Testan, 424 U.S. at 400, 96 S.Ct. at 954. C. The Claims Court also prematurely dismissed Hamlet’s claim for breach of her employment contract and thereby denied her the opportunity to present evidence to establish that basis for recovery. The Claims Court agreed with the government’s argument that “a federal employee has no right against the United States under an implied contract theory” and stated that the “Federal employment relationship is governed by statute and regulations”. Hamlet, 14 Cl.Ct. at 67. In United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976), the Supreme Court noted that the Federal government in that case could employ persons by contract and held that plaintiff’s claim for breach of contract was sufficient, under the provisions of the Tucker Act, to withstand a motion to dismiss for lack of jurisdiction. See also Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 739 n. 11, 102 S.Ct. 2118, 2125 n. 11, 72 L.Ed.2d 520 (1982) (distinguishing cases not involving appointment “where contracts were inferred from regulations promising payment.”). We cannot say that there is no set of facts Hamlet could prove which would entitle her to relief based on her allegations that an implied-in-fact contract had been created by the personnel manual provisions covering her employment and that this contract was breached as a result of her removal. D. Finally, the Claims Court held that Hamlet was not an “employee” duly appointed under the provisions of 5 U.S.C. § 2105(a) (1982) and was therefore not entitled to compensation for an"
},
{
"docid": "11040047",
"title": "",
"text": "hearings before the Virginia State ASCS Committee and the National ASCS office. Her removal was upheld. Subsequently, on May 5, 1986, Hamlet filed suit in the Court of Federal Claims, claiming that she was entitled to relief under the Tucker Act, 28 U.S.C. § 1491(a)(1) (1988 & Supp. V 1993). She alleged that her removal (1) violated her rights under the First and Fifth Amendments of the U.S. Constitution; (2) breached her employment contract; and (3) did not comply with the rules and regulations of the USDA and the ASCS rules found in the ASCS Handbook: County Office Personnel Management, 22-PM (Rev. 1) (1985) (22-PM Manual). Hamlet sought reinstatement and backpay. The Court of Federal Claims dismissed Hamlet’s action for lack of subject matter jurisdiction and for failure to state a claim. CFC Hamlet I, 14 Cl.Ct. at 67-68. This court vacated the judgment of the Court of Federal Claims and remanded the case “for further consideration or for trial.” CAFC Hamlet I, 873 F.2d at 1417. We held that, under United States v. Hopkins, 427 U.S. 123, 96 S.Ct. 2508, 49 L.Ed.2d 361 (1976), Hamlet’s claim for breach of contract was sufficient under the Tucker Act to withstand a motion to dismiss for lack of jurisdiction, reasoning that Hamlet might be able to prove facts entitling her to relief based on her allegations that an implied-in-fact contract had been created by the 22-PM Manual provisions covering her employment and that this contract was breached as a result of her removal. CAFC Hamlet I, 873 F.2d at 1417. We also held that the Court of Federal Claims erred in dismissing Hamlet’s regulatory claim for reinstatement and backpay since the court did not consider the 22-PM Manual provisions governing her employment. Id. We further held that Hamlet’s constitutional claim should not have been dismissed because, unlike the situation in United States v. Connolly, 716 F.2d 882 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984), where the plaintiffs claim was based solely on the First Amendment, Hamlet relied additionally upon the backpay, compensation and reinstatement"
},
{
"docid": "11040050",
"title": "",
"text": "was required to make adequate findings of fact and conclusions of law to support its judgment. .This court vacated and remanded the case because the Court of Federal Claims’ “findings of fact and conclusions of law [were] insufficient to enable meaningful appellate review.” Hamlet v. United States, No. 93-5075, slip op. at 2, 14 F.3d 613, 1993 WL 481140 (Fed.Cir. Nov. 23, 1993) (CAFC Hamlet II). Upon remand, the Court of Federal Claims held that Hamlet did not satisfy her burden of proof in establishing the existence of a contract or the breach of that contract. Hamlet v. United States, No. 281-86C, slip op. at 4 (Fed.Cl. Mar. 21,1994) (CFG Hamlet III). The court also held that the 22-PM Manual does not have the “force and effect of law” under Chrysler Corp. v. Brown, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979), and thus could not be interpreted to mandate the payment of money damages for purposes of the Tucker Act, under United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). CFG Hamlet III, slip op. at 4-6. The Court of Federal Claims then sua sponte examined its jurisdiction over Hamlet’s cause of action and concluded that jurisdiction was lacking under the Tucker Act. Id. at 6-8. II This court reviews de novo a dismissal by the Court of Federal Claims for lack of subject matter jurisdiction. Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed.Cir.1992). “The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). In order to invoke jurisdiction under the Tucker Act, a plaintiff must point to a substantive right to money damages against the United States. Id. Hamlet’s complaint contained three counts, each alleging a substantive right to compensation from the United States: (1) a breach of contract claim; (2) a violation of agency regulation claim; and (3) a claim that her removal"
},
{
"docid": "17155061",
"title": "",
"text": "relate the amended complaint back to their original complaint for statute of limitations purposes. Id. at 574, 372 F.2d 951. The Court determined that the Skykomish Tribe was either a “subgroup” of the Sno-qualmie Tribe at the time their claim accrued, or that the tribes had “merged ... thereafter through intermarriage.” Id. Accordingly, the Court upheld an Indian Claims Commission ruling allowing the Snoqualmie to add the Skykomish to their complaint and relate the amended complaint back to the original complaint. It found that the Sno-qualmie Tribe is “the only claimant; it is simply an entity serving in two representative capacities.” Id. at 588, 372 F.2d 951. Finally, Mr. Parsky cites Hatter v. United States, 38 Fed.Cl. 166 (1997) (Hatter VI), rev’d on other grounds, 203 F.3d 795 (Fed.Cir.2000) (Hatter VIII), aff'd. in part, rev’d in part on other grounds, 532 U.S. 557, 121 S.Ct. 1782, 149 L.Ed.2d 820 (2001) (Hatter IX). Hatter is a case brought in 1989 by several federal district and circuit judges concerning the alleged unconstitutional diminution in their compensation as a result of mandatory Social Security and Old Age Survivors and Disability Insurance taxes. Hatter VI, 38 Fed.Cl. at 167-69. In June, 1992, and December, 1992, the Plaintiffs filed amended complaints containing additional federal judges as Plaintiffs, each precluded (much like Mr. Parsky) from filing his or her own individual lawsuit because of the passage of time. Id. Citing Baldwin Park and Snoqualmie Tribe, the Court concluded in the damages phase of the litigation, that the Rule 15— “identity of interests” requirement depends on representational relationships among the original and newly proposed parties, not on merely being similarly situated with respect to the claim in the original pleading. Id. at 178 (emphasis added). Consequently, the Court denied relation back because— there is no formal connection or representational relationship among the original and the later-filing judges ... each judge is suing individually for diminution of his personal compensation. Id. at 179. The Court concluded, quite pointedly, that: [i]t would be anomalous if the later-filing judges in this civil action were deemed timely by application of the"
},
{
"docid": "23707992",
"title": "",
"text": "Discrimination § 86.50, at 17-62 (1989) (“Claims of constructive discharge have generally not succeeded in cases where they are based on ... denial of promotion_”); B. Schlei & P. Grossman, Employment Discrimination Law 1433 (2d ed. 1983) (\"In a promotion or other case where the plaintiff continues in the defendant’s employ, the period of liability will end if the plaintiff voluntarily resigns.’’) and id. at 1433 n. 40 (“The termination of back pay in such circumstances is, of course, dependent on there being no finding of constructive discharge.”) (citations omitted). . This important factor distinguishes the instant case from Hopkins v. Price Waterhouse, 825 F.2d 458 (D.C.Cir.1987), rev'd on other grounds, — U.S. -, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). . Although the EEOC was found to have engaged in a pattern of discrimination against white males through July 1983, Gordon does not contend, and the EEOC does not concede, that it was customary for those in EEOC’s management positions who had been demoted to non-management positions during the 1978-79 reorganization to view those demotions as career-ending decisions and, therefore, to retire or resign. If anything, the evidence indicates otherwise. Finally, Gordon did not resign because of his employer’s discriminatory denial of his application for the RA promotion or because of the dim possibility of his being subsequently promoted to that position. Instead, he resigned because of his demotion, as part of a non-discriminatory reorganization, from the ARA management position he had held before and for three years after the denial of promotion. . See also Note, Choosing a Standard for Constructive Discharge in the Title VII Litigation, 71 Cornell L.Rev. 587, 609-10 (1987). Aggravating factors include hostile working conditions and any other evidence suggesting any invidious intent on the part of the employer in creating or perpetuating the intolerable conditions compelling retirement or resignation. See Pittman, 644 F.2d at 1077. Thus, although we have adopted a reasonable-employee analysis, manifestations of the apparent intent of the employer are relevant to this analysis. See Note, supra, at 606-07. . As it is the law of this circuit that a finding"
},
{
"docid": "11049717",
"title": "",
"text": "against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (1994). The Tucker Act does not, by itself, create any causes of action against the United States for money damages. See United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Instead, to invoke jurisdiction under the Tucker Act, a plaintiff must identify a contractual relationship, constitutional provision, statute, or regulation that provides a substantive right to money damages. See Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995). In other words, the plaintiff “must assert a claim under a separate money-mandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States.” James v. Caldera, 159 F.3d 573, 580 (Fed.Cir.1998). In his brief, Dr. Khan claims entitlement to monetary relief under 38 U.S.C. §§ 7401, 7431-33 (1994). We conclude that none of these provisions can be interpreted as mandating the compensation that Dr. Khan requests in his first claim, namely the difference between his current retirement benefits and what he would have received had he not retired. Section 7401 of title 38 authorizes the Secretary to appoint medical personnel as necessary to provide medical care to veterans. It does not mention pay, nor does it create a cause of action for monetary damages. Thus, it cannot be construed as a money-mandating statute. See Testan, 424 U.S. at 400, 96 S.Ct. 948 (defining a money-mandating statute as one that “can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained”). Sections 7431-33 govern the payment of “special pay” to qualified physicians and dentists in the VHA. Although these provisions mandate the payment of money to qualified employees, such payments are limited to currently employed physicians and dentists. For instance, section 7431(f) states that “[s]pecial pay may not be paid ... to a physician or dentist who"
},
{
"docid": "21343996",
"title": "",
"text": "to allow a committee of one branch of Congress to bargain the plaintiff out of a right given him by a regularly enacted statute would be a contradicton of the court’s own analysis of the plaintiff’s rights under that statute as being contractual. If they were contractual, which I think they were not, how could a committee of the House of Eepresentatives modify a contract which Congress as a whole had made? It follows from what I have said that I think that the question of whether the plaintiff was of sound mind or not when he purported to renounce his statutory right is irrelevant, and I would not direct this court’s commissioner to inquire into it. The Government’s ultimate reliance is on the act of June 24,1946, 60 Stat. 304. Its text is as follows: That after July 14, 1945, no payments shall be made under Section 260 of the Judicial Code to Albert W. Johnson (or his estate), formerly district Judge of the District Court of the United States for the Middle District of Pennsylvania, who resigned as such judge on July 3, 1945, and who, on July 14, 1945, renounced and relinquished his rights under Section 260 of the Judicial Code to receive the salary therein provided for judges who resign after having served at least ten years and having attained the age of seventy years. When this act is read in context with Section 6 of the act of February 25, 1919, ch. 29, 40 Stat. 1157, 28 U. S. C. 375, the pertinent statutory law may be paraphrased as follows: When any judge, except Albert Williams Johnson, of any court of the United States, appointed to hold his office during good behavior, resigns his office after having held a commission or commissions as judge of any such court or courts at least ten years continuously, and having attained the age of seventy years, he shall, during the residue of his natural life, receive the salary which is payable at the time of his resignation for the office that he held at the time of his"
},
{
"docid": "11040046",
"title": "",
"text": "CLEVENGER, Circuit Judge. Louise J. Hamlet appeals from the judgment of the United States Court of Federal Claims dismissing her action for lack of jurisdiction. Hamlet v. United States, No. 281-86C (Fed.Cl. Mar. 23, 1994). We affirm. I Since the pertinent facts in this case are set forth in detail in Hamlet v. United States, 14 Cl.Ct. 62, 63-64 (1988) (CFC Hamlet I), and in Hamlet v. United States, 873 F.2d 1414, 1415 (Fed.Cir.1989) (CAFC Hamlet I), only a summary of the facts is necessary. Hamlet was employed as a program assistant in the Charlotte County, Virginia office of the Agricultural Stabilization and Conservation Service (ASCS) from November 19, 1956, until her removal on November 4,1985. This ASCS county office, like all such offices, operated under the aegis of the United States Department of Agriculture (USDA) as set forth in the ASCS organic statute, the Soil Conservation and Domestic Allotment Act, Pub.L. No. 461, 49 Stat. 1148 (1935) (codified as amended at 16 U.S.C. § 590h (1988)). After her removal, Hamlet requested and received appeal hearings before the Virginia State ASCS Committee and the National ASCS office. Her removal was upheld. Subsequently, on May 5, 1986, Hamlet filed suit in the Court of Federal Claims, claiming that she was entitled to relief under the Tucker Act, 28 U.S.C. § 1491(a)(1) (1988 & Supp. V 1993). She alleged that her removal (1) violated her rights under the First and Fifth Amendments of the U.S. Constitution; (2) breached her employment contract; and (3) did not comply with the rules and regulations of the USDA and the ASCS rules found in the ASCS Handbook: County Office Personnel Management, 22-PM (Rev. 1) (1985) (22-PM Manual). Hamlet sought reinstatement and backpay. The Court of Federal Claims dismissed Hamlet’s action for lack of subject matter jurisdiction and for failure to state a claim. CFC Hamlet I, 14 Cl.Ct. at 67-68. This court vacated the judgment of the Court of Federal Claims and remanded the case “for further consideration or for trial.” CAFC Hamlet I, 873 F.2d at 1417. We held that, under United States v. Hopkins,"
},
{
"docid": "11558679",
"title": "",
"text": "OPINION and ORDER TURNER, Judge. This opinion addresses all damages issues related to claims by 16 federal judges that their compensation was unlawfully diminished by imposition of Social Security taxes. There are no material facts in dispute. For reasons stated below, we conclude that eight of the plaintiffs are entitled to refunds of a portion of Social Security taxes withheld from salary in January 1984, together with compound interest. We further conclude, however, that any additional recovery is either barred by the applicable statute of limitations or offset by salary increases and that, consequently, the bulk of plaintiffs’ claims for damages must be denied. I Plaintiffs are 16 federal district and circuit judges who took office prior to January 1, 1983. On that date, all federal judges for the first time became subject to the Hospital Insurance (Medicare) (hereafter HI) portion of the Social Security tax. Tax Equity and Fiscal Responsibility Act, Pub.L. No. 97-248, § 278(a), 96 Stat. 324, 559 (1982) (codified as amended at 26 U.S.C. (I.R.C.) § 3121(u) (1988)). One year later, judges became subject to the Old Age Survivors and Disability Insurance (hereafter OASDI) portion of the Social Security tax, and since January 1, 1984, all federal judges have been fully subject to Social Security taxes. Social Security Amendments of 1983, Pub.L. No. 98-21, § 101(a)(1), (b)(1) and (d), 97 Stat. 65, 68, 69 (codified as amended at 26 U.S.C, (I.R.C.) § 3121(b)(5)(E) (1988) and 42 U.S.C. § 410(a)(5)(E) (1988)). Social Security taxes have been duly withheld from plaintiffs’ monthly compensation since the effective dates of these acts. Since the original plaintiffs filed their complaint on December 29,1989, there have been four prior published opinions regarding this ease. Chronologically, they are Hatter v. United States, 21 Cl.Ct. 786 (1990) (Hatter I), Hatter v. United States, 953 F.2d 626 (Fed. Cir.1992) (Hatter II), Hatter v. United States, 31 Fed.Cl. 436 (1994) (Hatter III), and Hatter v. United States, 64 F.3d 647 (Fed.Cir.1995) (Hatter IV), aff'd by a divided court, — U.S. —, 117 S.Ct. 39, 136 L.Ed.2d 3 (1996). In Hatter I, this court dismissed plaintiffs’ claim"
},
{
"docid": "6066339",
"title": "",
"text": "The letter also describes the conditions and benefits of Plaintiffs appointment, including the necessity of signing an “appointment affidavit” and taking an Oath of Office. Id. Plaintiffs Overseas Employment Transportation Agreement (OETA) is not an employment contract. By signing the OETA, Plaintiff agreed to “remain in the service of the [GSA] for a period of 36 months from time of arrival” in Germany. DefiApp. at 1. If he left government service “prior to completing 12 months of service after [his] appointment or transfer to the overseas post,” he would be indebted to the United States for the cost of his travel and relocation expenses. Id. This agreement by its terms does not confer employment but merely conditions his receipt of travel and relocation expenses on his remaining in the service of the government for a set time. Because Plaintiff was employed by appointment, not contract, this Court lacks jurisdiction to entertain his claim for breach of an employment contract under the Tucker Act. See Hamlet, 63 F.3d at 1101-02; see also Boston v. United States, 43 Fed.Cl. 220, 225 (1999) (citations omitted) (Although the Court of Federal Claims “generally possesses subject matter jurisdiction over contracts implied-in-faet, such is not the case for claims asserted by federal employees who are employed pursuant to appointment, rather than by virtue of an employment contract”). Exaction Claim Plaintiff maintains this Court has jurisdiction over this action because the Government effected an illegal exaction by with holding LQA overpayments from his salary “in violation of the Fifth Amendment [and] the waiver provisions of 5 U.S.C. § 5584.” Pl. Opp. at 11. “An illegal exaction ... exists only if money has been ‘improperly exacted or retained’ by the government.” Bank One, Michigan v. United States, 62 Fed.Cl. 474, 480 (2004) (citing Casa de Cambio Comdiv v. United States, 291 F.3d 1356, 1363 (Fed.Cir.2002) (citations omitted)); see also Clapp v. United States, 127 Ct.Cl. 505, 512, 117 F.Supp. 576 (1954) (an illegal exaction occurs when “the Government has the citizen’s money in its pocket”). In order to maintain a claim for illegal exaction, Plaintiff must allege he"
},
{
"docid": "11558680",
"title": "",
"text": "judges became subject to the Old Age Survivors and Disability Insurance (hereafter OASDI) portion of the Social Security tax, and since January 1, 1984, all federal judges have been fully subject to Social Security taxes. Social Security Amendments of 1983, Pub.L. No. 98-21, § 101(a)(1), (b)(1) and (d), 97 Stat. 65, 68, 69 (codified as amended at 26 U.S.C, (I.R.C.) § 3121(b)(5)(E) (1988) and 42 U.S.C. § 410(a)(5)(E) (1988)). Social Security taxes have been duly withheld from plaintiffs’ monthly compensation since the effective dates of these acts. Since the original plaintiffs filed their complaint on December 29,1989, there have been four prior published opinions regarding this ease. Chronologically, they are Hatter v. United States, 21 Cl.Ct. 786 (1990) (Hatter I), Hatter v. United States, 953 F.2d 626 (Fed. Cir.1992) (Hatter II), Hatter v. United States, 31 Fed.Cl. 436 (1994) (Hatter III), and Hatter v. United States, 64 F.3d 647 (Fed.Cir.1995) (Hatter IV), aff'd by a divided court, — U.S. —, 117 S.Ct. 39, 136 L.Ed.2d 3 (1996). In Hatter I, this court dismissed plaintiffs’ claim for lack of jurisdiction, concluding that the plaintiffs were seeking a tax refund and had failed to observe statutory prerequisites to suit. Hatter 7, 21 Cl.Ct. at 789. The Federal Circuit reversed, holding that plaintiffs were not seeking tax refunds, but rather were asserting damage claims arising directly under the Constitution which mandates the payment of money. Hatter 77, 953 F.2d at 630. The case was remanded to this court for a determination on the merits. In Hatter III, 31 Fed.Cl. at 447, this court dismissed plaintiffs’ claims on the merits. We held that although Social Security taxes caused a reduction in the judges’ take-home pay, imposition of the taxes did not violate the Compensation Clause of the Constitution,since the Social Security taxes imposed were nondiscriminatory and generally applicable to the public. The Federal Circuit reversed, holding that the imposition of Social Security taxes on sitting judges diminished their compensation. Hatter IV, 64 F.3d at 652-53. The Federal Circuit remanded the case for award of “tax refunds or recoveries for the sums improperly withheld from"
},
{
"docid": "6066336",
"title": "",
"text": "of Congress and other inferences that we may rationally draw from the structure and purpose of the statute at hand. Id. at 593 (citations omitted). Here, the structure and purpose of the statute confirm the discretionary nature of a waiver decision. The only statutory limitations on the agency official’s discretion are prohibitions against granting a waiver — “if, in his opinion, there exists ... an indication of fraud, misrepresentation, fault or lack of good faith on the part of the employee ... having an interest in obtaining a waiver ...” 5 U.S.C. § 5584(b)(1). Thus, rather than commanding the official to pay money, the statute prohibits the official from forgiving a debt if any enumerated conditions have been met “in his opinion.” If those bars to waiver — fraud, misrepresentation, fault or lack of good faith — are not present, the statute does not mandate waiver of the debt — waiver is a matter left to the discretion of the official. As such, 5 U.S.C. § 5584 cannot be fairly interpreted as mandating payment of money and cannot form the basis of this Court’s Tucker Act jurisdiction. White Mountain, 537 U.S. at 472-73, 123 S.Ct. 1126; Fisher, 402 F.3d at 1174; cf. District of Columbia v. United States, 67 Fed.Cl. 292, 305 (2005) (finding Transfer Act’s “is direeted-to-pay” language to be money-mandating). Breach of Contract In the alternative, Plaintiff claims this Court has jurisdiction over this action because GSA breached a three-year employment contract with him. Plaintiffs Opposition to Defendant’s Motion to Dismiss (Pl. Opp.) at 11. However, there is a “well-established principle that, absent specific legislation, federal employees derive the benefits and emoluments of their positions from appointment rather than from any contractual or quasi-contractual relationship with the government.” Hamlet v. United States, 63 F.3d 1097, 1101 (Fed.Cir.1995) (quoting Chu v. United States, 773 F.2d 1226, 1229 (Fed. Cir.1985)); see also Bigler v. United States, 230 Ct.Cl. 985, 986, 1982 WL 25297 (1982) (“public employment is presumptively not by contract; it is instead accomplished by appointment and controlled by statute, regulation, and Executive Order” (citations omitted)). As the Federal"
},
{
"docid": "3038174",
"title": "",
"text": "protected from the defense of the running of the statute of limitations; like any litigant against the Government, such a plaintiff is subject to having the cause of action barred. In this case, suit was brought not as a class action but on behalf of the individual ly named judges. In that regard, there are two causes of action arising under two different statutes. The Tax Equity and Fiscal Responsibility Act of 1982, Pub.L. No. 97-248, imposed the Hospital Insurance portion of the Social Security tax on federal judges effective January 1, 1983. Since the pleadings in this case were filed on December 29, 1989, just short of seven years after the cause of action arose, all claims under that Act are subject to being barred by the running of the statute of limitations. The Old Age and Survivors Disability Insurance portion of the Social Security tax was imposed on federal judges by the Social Security Amendments of 1983, Pub.L. No. 98-21, and was effective January 1, 1984. Since this suit was filed by the original ten judges a few days short of six years from when that cause of action arose, the suit on that claim is not barred. The rather convoluted accounting the trial judge found himself enmeshed in because of the theory of the case that was adopted in the trial court is wholly irrelevant; therefore we express no opinion thereon. CONCLUSION The judgment of the Court of Federal Claims is reversed, and the matter remanded to that court for further proceedings consistent with this opinion. REVERSED AND REMANDED. . The history of this case involves the following six decisions: Hatter v. United States, 21 Cl.Ct. 786 (1990) (Hatter I), Hatter v. United States, 953 F.2d 626 (Fed.Cir.1992) (Hatter II), Hatter v. United States, 31 Fed.Cl. 436 (1994) (Hatter III), Hatter v. United States, 64 F.3d 647 (Fed.Cir.1995) (Hatter IV), United States v. Hatter, 519 U.S. 801, 117 S.Ct. 39, 136 L.Ed.2d 3 (1996) (Hatter V), and Hatter v. United States, 38 Fed.Cl. 166 (1997) (Hatter VI). . The absence of a quorum resulted from re-cusals, presumably"
}
]
|
660538 | describe harm rising to the level of persecution. Our review is limited to the reasoning of the IJ, and as to this claim, that reasoning was deficient. 3. The IJ’s analysis of petitioners’ claim of past persecution based on the threats that Rana Manzur received in response to her efforts to have General Ershad prosecuted is also insufficient. It is unclear whether the IJ rejected this claim because the petitioners did not identify the source of the threats or because the petitioners did not demonstrate that the threats were “on account of’ a protected ground. To the extent the decision rested on the former conclusion, it was legal error. The IJ cited a case from the Seventh Circuit Court of Appeals, REDACTED for the proposition that “while threats could amount to persecution, an asylum applicant must identify who issued a particular threat, in what setting and for what purpose.” In Mitev, however, the court was discussing the importance of the “context” of threats and specifically discounted threats that came from co-workers, often in the context of political discussions. Mitev, 67 F.3d at 1331. The court did not conclude that anonymous threats could not be included in the mix of evidence showing that an applicant had been subjected to persecution. As this Court has noted, “[c]oncluding that persecutors’ failure to reveal their identities and motivations ... undercuts an applicant’s credibility does not rest on the ‘legitimate nexus’ required in credibility findings.” Secaida-Rosales, 331 F.3d | [
{
"docid": "23154097",
"title": "",
"text": "persecution.” A threat or threats could, under the proper circumstances, amount to persecution. In re Acosta, 1985 WL 56042,1985 BIA Lexis 2, *26, 19 I & N Dec. 211 (1985) (persecution includes “either a threat to the life or freedom of, or the infliction of suffering or harm” upon a person for reasons regarded as offensive). However, as in much of life, “context is everything.” One must identify what individual or group of individuals issued a particular threat, in what setting, and for what purpose. A death threat emanating directly from the secret police, if linked to Mitev’s political activity, would surely be closer to ‘persecution’ than the kinds of threats made by Mi-tev’s fellow employees at the computer factory. The IJ in this case, in his role as fact-finder, asked a series of questions designed to probe the nature of the threats directed at Mitev. These questions elicited from Mitev the concession that most of the threats came from co-workers, often in the,context of heated political discussion. The BIA, relying on this portion of the testimony, agreed with the LPs assessment that these dire warnings from private individuals did not amount to persecution. With respect to Bojon’s death-camp threat, the BIA observed that there was no evidence apart from Mitev’s testimony to establish the existence of concentration camps in Bulgaria during this time period. More importantly, the BIA concluded that Bojon’s threat “was made in an off-hand, almost causal manner [and came] from an individual who had no real authority to carry out the threat.” Because of his political activism on behalf of Podkrepa, Mitev in 1990 faced an uncertain and possibly dangerous future in Bulgaria. Our decisions, however, have recognized the hard truth that unpleasant and even dangerous conditions do not necessarily rise to the level of persecution. In fact, the BIA has denied asylum to applicants who faced much harsher conditions than Mitev, and we have upheld those decisions when supported by substantial evidence. See, e.g., Bevc v. INS, 47 F.3d 907, 910 (7th Cir.1995) (non-Serbian living in Serbia where non-Serbians were the victims of ethnic cleansing);"
}
]
| [
{
"docid": "22794750",
"title": "",
"text": "hearing before the IJ, Montoya testified as to the events described above. Ghisela did not testify, but the government stipulated that her testimony would have been essentially identical to Montoya’s. (Id. at 43.) The IJ denied the Petitioners’ applications in an oral decision on December 15, 2005. The IJ found that Montoya’s testimony was credible and consistent with his application, but that he was not eligible for asylum because he had failed to establish either past persecution or a well-founded fear of future persecution on account of one of the statutorily protected grounds. Although the IJ began his decision by summarizing Montoya’s testimony, including the attempted kidnapping of Ghisela and the attempted shooting of Montoya, the IJ’s subsequent legal analysis made no mention of either incident: Mere threats generally do not rise to the level of persecution within the meaning of the [Immigration and Nationality] Act. In this case, the Court shows that respondent was not physically harmed. He received threatening phone calls during the course of his time in Colombia. While the Court does not condone the receipt of threatening phone calls, the Court finds that under the 11th Circuit and Board [of Immigration Appeals] precedent, the threats directed at respondents are not so severe as to rise to the level of persecution within the meaning of the Act. (Id. at 48-49.) As for a well-founded fear of future persecution, the IJ found that Montoya failed to establish that such persecution would be on account of one of the statutorily pro tected grounds, noting that “it is unclear that the fear of the threats in this case is ... on the basis of [the Petitioners’] political opinion or a ground protected under the Act.” (Id. at 49.) Rather, the IJ concluded that “the FARC was interested in [Montoya] because of their need to raise money” and that “the record does not establish that the FARC sought to harm [Montoya] because of his political activities.” (Id. at 50.) The IJ also determined that Montoya failed to show that he could not relocate elsewhere in Colombia without fear of future persecution,"
},
{
"docid": "22604787",
"title": "",
"text": "(“[Persecution includes ... non-life-threatening violence and physical abuse or non-physical forms of harm such as the deliberate imposition of a substantial economic disadvantage.” (internal quotation marks, alterations, and citations omitted)). Other than the statement that the petitioners were released “without harm,” the IJ provided no further explanation for his finding that the petitioners’ month-long confinement did not rise to the level of persecution. The IJ thus failed adequately to link his decision to the evidence in the record and in doing so deprived this Court of the opportunity to exercise any meaningful review of this finding. The IJ also rejected the evidence of confinement as a factor in establishing a claim of past persecution because he found that there was no evidence that those responsible for the confinement sought to harm the petitioners “on account of familial relationship, political beliefs or any political belief imputed to them.” [11] The IJ noted that “there is no persuasive evidence that those responsible [for General Manzur’s death] sought to harm the [petitioners] for his opinions.” However, an asylum applicant can establish a persecutor’s motives by either direct or circumstantial evidence. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Uwais, 478 F.3d at 517. In this case, the petitioners were detained without explanation immediately after General Manzur was taken away by military officers in the middle of the night and, as petitioners later learned, executed. The petitioners’ relationship to General Manzur was no secret. Rana Manzur repeatedly asked about her husband throughout the family’s detention. Furthermore, General Ershad and Colonel Awal, who took the petitioners into detention, were members of a political group that General Manzur had fought against. Indeed, there was evidence that General Ershad wanted to kill Rana Manzur and her children after the 1981 coup, but was dissuaded from doing so. At the very least, the IJ erred in apparently failing to consider this probative circumstantial evidence that the Manzurs were detained on account of General Manzur’s political opinions that were imputed to them or because of their membership in a particular social group,"
},
{
"docid": "1027543",
"title": "",
"text": "the United States “cannot protect you all the time,” without more, certainly do not compel a finding of past persecution. There was no misinterpretation here. To be sure, the broadcasted threat that occurred on March 8, 2000 is cut from different cloth. A direct threat to an individual’s life can constitute past persecution. See Aguilar-Solis, 168 F.3d at 569-70. Withal, an asylum applicant must demonstrate a nexus between such a threat and one of the five statutorily protected grounds. See 8 C.F.R. § 208.13(b)(1); see also Rodriguez-Ramirez, 398 F.3d at 124. Here, the record supports the IJ’s finding that no such connection was forged with respect to the broadcasted death threat. On this issue, the parties talk past each other. The problem, as we see it, is that Ang misapprehends the IJ’s reasoning. In his bench decision, the IJ did not take the view that the broadcasted threat never happened but, rather, attributed the threat to a disgruntled former subordinate. Because the genesis of this threat reasonably can be seen as something other than the petitioner’s political views or support of the United States, there is no principled way we can set aside the IJ’s determination. There is one last piece to the question of threat evidence. Ang calumnizes the IJ’s determination that the supposed threats to Mean did not occur. Ang did not advance this claim before the BIA, so we will not consider it. See, e.g., Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.2004) (explaining that “theories not advanced before the BIA may not be surfaced for the first time in a petition for judicial review of the BIA’s final order”). In all events, were this claim properly before us, we would defer to the IJ’s credibility finding. See, e.g., Olujoke, 411 F.3d at 21-22 (noting that an appellate court should treat an IJ’s adverse credibility determinations with “great respect”). Our rejection of these arguments makes manifest that Ang has not demonstrated past persecution. Hence, he is not entitled to a rebuttable presumption that a well-founded fear of future persecution exists. This brings us to Ang’s third"
},
{
"docid": "8289074",
"title": "",
"text": "made the threatening phone calls or sent the threatening letters and that he could not identify the source of the threats, but he stated that he was sure that it was “a political issue.” After hearing Cubillos’s testimony, the IJ found him credible. The IJ also found that the documents provided by Cubillos corroborated his testimony. The IJ determined that Cubillos had established past persecution based on his membership in the Radical Change Party. The IJ noted that Cubillos had sought protection but that the government was unable or unwilling to protect him. The IJ concluded that Cubillos established past persecution and that the government failed to rebut the presumption of future persecution. Based on these findings, the IJ granted Cubillos’s application for asylum. The IJ did not reach Cubillos’s applications for withholding of removal and CAT relief. DHS appealed, and the BIA vacated the IJ’s decision. The BIA held that, despite credible testimony, the two anonymous phone calls and two anonymous letters did not amount to past persecution because Cubillos did not have physical contact with the individuals and the correspondence did not include explicit threats against him. Moreover, the BIA held that Cubillos did not show a well-founded fear of persecution on account of a protected ground. The BIA also denied Cubillos’s applications for withholding of removal and CAT relief. This petition followed. II. Discussion On appeal, Cubillos challenges the BIA’s denial of his asylum claim, withholding of removal, and CAT claims. Cubillos also challenges the BIA’s scope of review. We will affirm the BIA’s decision if “substantial evidence on the administrative record” supports that decision. De Brenner v. Ashcroft, 388 F.3d 629, 636 (8th Cir.2004) (internal quotations and citations omitted). And we will not overturn that decision “unless the evidence is so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.” Id. (internal quotations and citations omitted). The BIA’s legal conclusions are reviewed de novo, but we grant deference to the BIA in interpreting “ambiguous statutory terms if the interpretation is reasonable and consistent with the statute.” Id. (internal quotations and"
},
{
"docid": "22253674",
"title": "",
"text": "for withholding of removal and relief under the CAT. In his bench decision, he found that the petitioner had failed to establish a nexus between her fear of physical harm and any statutorily protected ground. The IJ noted the petitioner’s inability to identify the persons making the threats and concluded that the threats were likely motivated by extortion or some other species of garden-variety criminality. As the flip side of this coin, the IJ found no reason to believe that the persons responsible for the threats were connected to any particular guerilla group or faction. Finally, the IJ rejected the petitioner’s CAT claim, discerning no evidence of a likelihood that the petitioner would be tortured if returned to Colombia. The petitioner appealed. The BIA disagreed with the IJ’s conclusion that bribery of a public official constituted an aggravated felony as that term is used in the INA. See 8 U.S.C. § 1101(a)(43). Thus, the BIA considered and rejected the petitioner’s asylum claim on the merits, concluding that the petitioner had failed to furnish evidence sufficient to establish a nexus between the reported threats and a statutorily protected ground. With respect to the petitioner’s other claims — for withholding of removal and sanctuary pursuant to the CAT — the BIA affirmed the IJ’s rulings. This timely petition for judicial review followed. We turn first to the petitioner’s asylum claim. To qualify for asylum, an alien first must establish her status as a refugee, that is, a person who is unable or unwilling to return to her homeland “because of persecution ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardozda-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir.2007). The alien can satisfy this obligation by showing that she has been persecuted in the past on account of one of the five statutorily protected grounds or, alternatively, that a well-founded fear of future persecution on such a ground exists. See Makhoul v. Ashcroft, 387 F.3d 75,"
},
{
"docid": "22284509",
"title": "",
"text": "415 F.3d 296 (3d Cir.2005), an applicant for asylum asserted that he faced persecution in that he had received death threats from paramilitary organizations. The BIA rejected this claim, finding that (1) the applicant could not claim asylum based on “general unrest in Columbia” and (2) members of the applicant’s family who remained in Columbia had not been harmed. Id. at 299. We concluded that the BIA’s findings “miss[ed] the mark” because findings regarding general unrest and the applicant’s family did not address the applicant’s claim that death threats were directed specifically at him. Id. at 301. This Court stated: “ ‘When deficiencies in the BIA’s decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning.’ ” Id. at 302 (quoting Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.2003)). We therefore “remand[ed] th[e] case to the BIA for a fresh look at [the petitioner’s] asylum claim — one that focuses on the true underpinnings of that claim.” Id. at 302-03. If the BIA failed to consider Konan’s claim of persecution based on his status as an immediate family member of a gendarme, the case must be remanded under Vente. Therefore, we consider whether the BIA addressed this claim. It is true that the IJ made a statement which, taken in isolation, might suggest that he rejected Konan’s claim that he was persecuted because he is an immediate family member of a gendarme: I must in the end concur with Bureau counsel that there is no past persecution in this case. If respondent’s father and brother died in the circumstances that he described, which is certainly tragic, but without more, I cannot conclude there was an act of persecution rather than an act of armed rebellion. However, the IJ made this statement in the context of concluding that Konan was not persecuted due to political opinion, not in addressing his claim of persecution on account of his status as an immediate family member of a gendarme. The IJ also discussed Konan’s claim that"
},
{
"docid": "22604795",
"title": "",
"text": "applicant’s actions were directed toward a governing institution, or only against individuals whose corruption was aberrational” and “whether the persecutor was attempting to suppress a challenge to the governing institution.” Id. at 548 (internal quotation marks and citation omitted); see also Harsan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir.2004); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir.2004); Grava v. I.N.S., 205 F.3d 1177, 1181 (9th Cir.2000) (finding that when alleged corruption which the petitioner exposed is inextricably intertwined with government operation, the exposure and prosecution of such abuse is necessarily political); Reyes-Guerrero v. I.N.S., 192 F.3d 1241, 1245-46 (9th Cir.1999); Gomez-Saballos v. I.N.S., 79 F.3d 912, 917 (9th Cir.1996) (finding that personal retaliation against a vocal political opponent does not render the opposition any less political, or the opponent any less deserving of asylum). In addition, this Court has stated that the determination of whether a petitioner’s persecutors were motivated by the petitioner’s opposition to the government “is a complex and contextual factual inquiry.” Yueqing Zhang, 426 F.3d at 548. Because the IJ did not engage in this inquiry regarding the nature of Rana Manzur’s actions or the motivation of her persecutors, the proper course is to remand for further consideration of whether Rana Manzur made the requisite showing. The IJ cited the Supreme Court’s opinion in I.N.S. v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), for the proposition that “[persecution on account of political opinion means persecution on account of the victim’s not the persecutor’s political opinion.” While that is a fair description of Elias-Zacañas, the citation misapprehends Rana Manzur’s claim. Rana Manzur claims that she was persecuted precisely because of her political opinion that her husband had been the victim of assassination engineered by General Ershad and that, consequently, Gen eral Ershad should be prosecuted. She alleges that the threats were directed against her precisely because of her views, not the persecutors’. The IJ’s analysis of this claim is, therefore, deficient. The IJ also did not explain why, on these facts, the petitioners have not shown that the threatening calls that Rana"
},
{
"docid": "19272758",
"title": "",
"text": "supported his family on his income had they remained in Guatemala. Ucelo-Gomez testified that the couple came to the United States for non-economic reasons, but conceded on cross-examination that his father was also “rich,” and that none of his relatives (including his father) had ever been threatened for any reason. In an oral decision, the IJ denied petitioners’ applications on the ground that they failed to establish past persecution under 8 C.F.R. § 208.13(b)(1). The IJ ruled that receiving a ransom demand from unknown persons does not constitute persecution, and that petitioners had proffered no evidence that these threats resulted, or would have resulted, in any harm. Alternatively, the IJ concluded that, even if petitioners had suffered persecution, it was not on account of their race, religion, nationality, membership in a particular social group, or political opinion. The IJ held that a group made up of affluent Guatemalans was not a “readily-identifiable social group” and was “too broad to define a social group for purposes of asylum.” He concluded that the characteristics of that “group” are not immutable, and there was insufficient evidence that similarly-situated Guatemalans would be identified by would-be persecutors. The IJ also found petitioners’ stories not credible, citing inconsistencies between their airport statements and their testimony at the asylum hearing. In addition, the IJ found that petitioners failed to establish a well-founded fear of future persecution under 8 C.F.R. § 208.13(b)(2), because nothing in the admitted background materials or country reports indicated that wealthy Guatemalans “are specifically targeted for persecution.” Because petitioners failed to demonstrate the requisite well-founded fear, the IJ ruled that they failed to meet the clear probability standard required for withholding of removal under § 241(b)(3) of the INA. Finally, the IJ concluded that their CAT claim was baseless because they had no fear of any actions against them by the government of Guatemala. Accordingly, the IJ ordered petitioners removed to Guatemala. The BIA affirmed without opinion. DISCUSSION I When the BIA affirms without opinion, we review the IJ’s decision as the final agency determination. See Twum v. INS, 411 F.3d 54, 58 (2d"
},
{
"docid": "22723291",
"title": "",
"text": "sum, because we find that the IJ “ignor[ed] a significant aspect of [petitioner’s] testimony in support of h[er] claims of past persecution and future persecution,” Chen, 359 F.3d at 128, the BIA’s decision, insofar as it summarily affirmed the IJ’s denial of petitioner’s application for withholding of removal, must be vacated and the case remanded to the BIA for further proceedings consistent with this opinion. On remand, the IJ is instructed to apply the definition of persecution set forth in this opinion and take full account of the allegations of physical violence contained in petitioner’s testimony and the supporting documentary evidence, particularly with regard to her claim of religious persecution. If the IJ concludes that, applying these standards, Ivanishvili's testimony constitutes persecution, the IJ must then consider whether petitioner’s evidence demonstrates a threat to life and freedom sufficient to qualify for withholding of removal, ie., whether there is a clear probability of such persecution. If the IJ concludes that persecution was not proved because petitioner’s testimony was not credible, the IJ’s analysis should include “specific, cogent reasons” for rejecting petitioner’s testimony, reasons which “bear a legitimate nexus” to the adverse credibility finding. Secaida-Rosales, 331 F.3d at 307. IV Petitioner’s Claim for Withholding of Removal Under the Convention Against Torture Ivanishvili next argues that the BIA erred in not considering her CAT claim, even though she did not raise the IJ’s rejection of that claim in her appeal. The government, seizing on that failure, contends she has not exhausted her administrative remedies as required by 8 U.S.C. § 1252(d)(1) and therefore the issue is not properly before us. Section 1252(d)(1) provides, in pertinent part, that federal courts may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.” Statutory exhaustion requirements are mandatory, and so, unlike with common law exhaustion requirements, the “judicial discretion to employ a broad array of exceptions that allow a plaintiff to bring his case in district court despite his abandonment of the administrative review process” does not apply in this context. Bastek v. Fed."
},
{
"docid": "22604776",
"title": "",
"text": "the INA. The IJ rejected any claims of economic deprivation because the petitioners failed to establish that they were unable to support themselves, and because their economic conditions were more consistent with economic reality than with conspiratorial design. The IJ also found that the petitioners had not established that whatever threats they received constituted persecution or persecution on account of a protected ground. On May 15, 2003, the BIA issued a separate order for each petitioner affirming without opinion the decision of the IJ. Thereafter, the petitioners filed this petition for review. II. To qualify for asylum, which is available at the Attorney General’s discretion, an applicant bears the burden of establishing that the applicant is “unable or unwilling” to return to the applicant’s native country because of persecution or a well-founded fear of persecution “on account of’ a protected ground: “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158; see Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir.2006); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). While “persecution” is not defined in the INA, this Court has explained that persecution includes more than threats to life and freedom, and therefore encompasses a variety of forms of adverse treatment, including non-life-threatening violence and physical abuse, or nonphysical forms of harm such as the deliberate imposition of a substantial economic disadvantage. In short, persecution is the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground---- Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (internal citations, alterations, and quotation marks omitted). A showing of past persecution on account of a protected ground triggers a rebuttable presumption that the applicant has a well-founded fear of future persecution on that ground. See Uwais v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir.2007); Secaida-Rosales v. I.N.S., 331 F.3d 297, 306 (2d Cir.2003). In contrast to asylum, withholding of removal (formerly “withholding of deportation,” see supra note 1, at 2) is nondiscre-tionary, but requires the applicant to satisfy the more stringent showing that"
},
{
"docid": "18138333",
"title": "",
"text": "this petition for review. II. To establish eligibility for asylum, an applicant must demonstrate that he is a “refugee” within the meaning of the Immigration and Nationality Act, which defines “refugee” as “one who is unable or unwilling to return to his country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Jamal-Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir.2005). If an applicant has suffered persecution in the past, he is entitled to a rebuttable presumption of a well-founded fear of future persecution. Tolosa v. Ashcroft, 384 F.3d 906, 908 (7th Cir.2004). Otherwise, he must establish that he genuinely fears persecution based on a protected ground and show, based upon credible, direct, and specific evidence, that a reasonable person in the same circumstances would fear persecution if returned to the petitioner’s country. Oforji v. Ashcroft, 354 F.3d 609, 613 (7th Cir.2003). The applicant bears the burden of proving that he is eligible for asylum. Jamal-Daoud, 403 F.3d at 922; 8 C.F.R. § 208.13(a). Because the BIA affirmed without opinion, we review the decision of the IJ directly to determine if it is supported by substantial evidence. Tolosa, 384 F.3d at 908; Oforji, 354 F.3d at 612. We will affirm the IJ’s denial of asylum if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole,” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and reverse it only where the evidence is so compelling that no reasonable factfinder could fail to find the requisite fear of persecution, id. at 483-84, 112 S.Ct. 812. Petitioners first challenge the IJ’s conclusion that the threats against Hernandez-Baena did not amount to past persecution, and that in any event the threats were not “on account of’ an imputed political opinion. They argue that FARC’s issuance of a “death warrant” against Hernandez-Baena amounts to more than an unfulfilled threat and rises to the level of persecution. Although we have not foreclosed the possibility"
},
{
"docid": "22604796",
"title": "",
"text": "did not engage in this inquiry regarding the nature of Rana Manzur’s actions or the motivation of her persecutors, the proper course is to remand for further consideration of whether Rana Manzur made the requisite showing. The IJ cited the Supreme Court’s opinion in I.N.S. v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), for the proposition that “[persecution on account of political opinion means persecution on account of the victim’s not the persecutor’s political opinion.” While that is a fair description of Elias-Zacañas, the citation misapprehends Rana Manzur’s claim. Rana Manzur claims that she was persecuted precisely because of her political opinion that her husband had been the victim of assassination engineered by General Ershad and that, consequently, Gen eral Ershad should be prosecuted. She alleges that the threats were directed against her precisely because of her views, not the persecutors’. The IJ’s analysis of this claim is, therefore, deficient. The IJ also did not explain why, on these facts, the petitioners have not shown that the threatening calls that Rana Manzur received were motivated — at least in part — by an imputed political opinion. This Court has stated that, under a theory of imputed political opinion, an applicant may establish persecution “on account of’ a protected ground by showing that the persecutors perceived the applicant to have a political opinion and acted because of it. See Chun Gao v. Gonzales, 424 F.3d 122,129 (2d Cir.2005). 4. Finally, the IJ’s analysis of the petitioners’ economic persecution claim is insufficient to determine whether the correct legal standard was applied. See Beskovic, 467 F.3d at 224. The IJ rejected petitioners’ claim of economic persecution because he concluded that they “failed to establish ... that they were not able to support themselves,” citing as support several cases that do not articulate a clear standard for economic persecution. This Court has previously recognized that the standard for economic persecution claims is unclear, and remanded to the BIA for clarification. See Mirzoyan, 457 F.3d at 223-24. The BIA’s recent decision, In re T-Z-, 24 I. & N. Dec. 163 (BIA"
},
{
"docid": "22604774",
"title": "",
"text": "and not to pursue the subject, because she should remember how her husband died. Around this time, Rana Manzur was also visited on several occasions by the “anti-corruption police,” who asked her personal questions about her life, income, and children. Further, after her absence from a military ceremony in 1993, she received calls from the DGFI inquiring as to her absence and accusing her of trying to “conflict with the government.” Finally, in the fall of 1993, Rana Manzur observed an army jeep with what she perceived to be DGFI agents parked openly in front of her house for the first time. After that, she abandoned her efforts to pursue General Ershad’s prosecution, went into hiding, and began seeking a way to leave for the United States. She entered the United States several months later, in January 1994, on a visitor’s visa. B. The IJ held a series of hearings on the petitioners’ applications for asylum and withholding of deportation. The hearings commenced on July 22,1997 and concluded with a final hearing in January 2000. In a written decision dated January 31, 2002, the IJ denied the petitioners’ applications, but granted the petitioners’ requests for voluntary departure. The IJ found that the petitioners had “failed to show that their experiences, whether considered singly or in the aggregate, establish persecution within the meaning of the [INA].” While the IJ did not appear to question the credibility of the petitioners with respect to the individual incidents about which they testified and provided evidence, he analyzed each of the incidents and found that each incident did not support a finding of persecution. He found, for example, that the petitioners’ release from confinement in 1981 “without harm” did not rise to the level of persecution or reveal action motivated by a desire to punish the petitioners based on a protected ground such as membership in a particular social group or political opinion. He found that the petitioners’ testimony about harassment by individuals they believed to be agents of the government of Bangladesh did not describe harm that rose to the level of persecution under"
},
{
"docid": "22604791",
"title": "",
"text": "claiming past persecution allege either detention or physical harm. See Ivanishvili, 433 F.3d at 341; see also Begzatowski v. I.N.S., 278 F.3d 665, 669 (7th Cir.2002) (“Types of actions that might cross the line from harassment to persecution include: detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture.” (internal quotation marks omitted)), cited in Kyaw Zwar Tun v. U.S. I.N.S., 445 F.3d 554, 567 (2d Cir.2006). The IJ appears to have viewed skeptically the petitioners’ claim that the individuals engaged in the surveillance were government agents, referring to them as “unknown individuals believed to be agents of the government.” The IJ did not, however, articulate this observation as an alternative basis for denying the petitioners’ past persecution claim, and the IJ provided no basis for a conclusion that surveillance was being conducted by some non-governmental group. As best we can tell, the IJ rejected this claim exclusively on the ground that it did not describe harm rising to the level of persecution. Our review is limited to the reasoning of the IJ, and as to this claim, that reasoning was deficient. 3. The IJ’s analysis of petitioners’ claim of past persecution based on the threats that Rana Manzur received in response to her efforts to have General Ershad prosecuted is also insufficient. It is unclear whether the IJ rejected this claim because the petitioners did not identify the source of the threats or because the petitioners did not demonstrate that the threats were “on account of’ a protected ground. To the extent the decision rested on the former conclusion, it was legal error. The IJ cited a case from the Seventh Circuit Court of Appeals, Mitev v. I.N.S., 67 F.3d 1325 (7th Cir.1995), for the proposition that “while threats could amount to persecution, an asylum applicant must identify who issued a particular threat, in what setting and for what purpose.” In Mitev, however, the court was discussing the importance of the “context” of threats and specifically discounted threats that came from co-workers, often in the context of political discussions. Mitev, 67 F.3d at 1331. The"
},
{
"docid": "22749304",
"title": "",
"text": "degree. But, more importantly, the IJ fails to point to anything in the record to support her alternate conclusion that Secaida is wholly unrelated to the individual listed on the death certificate, a copy of which he nevertheless had in his possession. As we stressed above, an IJ must point to valid reasons for rejecting an applicant’s testimony, and an adverse credibility determination should not be based on speculation or conjecture. See Gao, 299 F.3d at 272; Senathirajah, 157 F.3d at 216. The IJ also rejected the death threat in a similar fashion. She noted that the letter makes no reference to the basis or source of the threat and concluded that “[i]t could as easily be ... due to a love dispute.” This not only constitutes further conjecture, but, as another court has observed, persecutors are hardly “given adequate notice that our government expects them to sign their names and reveal their individual identities when they deliver threatening messages.” Aguilera-Cota, 914 F.2d at 1380 (noting they are also unlikely to provide affidavits attesting to acts of persecution); see also Ladha v. INS, 215 F.3d 889, 905 n. 17 (9th Cir.2000) (excluding documents simply because they are “self-serving” is not a sound practice). Concluding that persecutors’ failure to reveal their identities and motivations in writing undercuts an applicant’s credibility does not rest on the “legitimate nexus” required in credibility findings. As with Secaida’s omissions on his applications, the IJ applied too stringent a standard to his corroborating evidence. We do not believe such treatment was warranted under the law. See Sidhu v. INS, 220 F.3d 1085, 1091 (9th Cir.2000) (noting only the absence of material and non-duplica-tive corroborating evidence should form basis of adverse determination and stating “where an applicant produces credible corroborating evidence to buttress an aspect of his own testimony, an IJ may not base an adverse credibility determination on the applicant’s failure to produce additional evidence that would further support that particular claim”) (emphasis added). As for Secaida’s confusion in the face of cross-examination by the IJ and the INS attorney, it amounts to no more than"
},
{
"docid": "22604775",
"title": "",
"text": "In a written decision dated January 31, 2002, the IJ denied the petitioners’ applications, but granted the petitioners’ requests for voluntary departure. The IJ found that the petitioners had “failed to show that their experiences, whether considered singly or in the aggregate, establish persecution within the meaning of the [INA].” While the IJ did not appear to question the credibility of the petitioners with respect to the individual incidents about which they testified and provided evidence, he analyzed each of the incidents and found that each incident did not support a finding of persecution. He found, for example, that the petitioners’ release from confinement in 1981 “without harm” did not rise to the level of persecution or reveal action motivated by a desire to punish the petitioners based on a protected ground such as membership in a particular social group or political opinion. He found that the petitioners’ testimony about harassment by individuals they believed to be agents of the government of Bangladesh did not describe harm that rose to the level of persecution under the INA. The IJ rejected any claims of economic deprivation because the petitioners failed to establish that they were unable to support themselves, and because their economic conditions were more consistent with economic reality than with conspiratorial design. The IJ also found that the petitioners had not established that whatever threats they received constituted persecution or persecution on account of a protected ground. On May 15, 2003, the BIA issued a separate order for each petitioner affirming without opinion the decision of the IJ. Thereafter, the petitioners filed this petition for review. II. To qualify for asylum, which is available at the Attorney General’s discretion, an applicant bears the burden of establishing that the applicant is “unable or unwilling” to return to the applicant’s native country because of persecution or a well-founded fear of persecution “on account of’ a protected ground: “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158; see Edimo-Doualla v. Gonzales, 464 F.3d 276, 281 (2d Cir.2006); Ramsameachire v. Ashcroft, 357 F.3d 169, 178"
},
{
"docid": "22604793",
"title": "",
"text": "court did not conclude that anonymous threats could not be included in the mix of evidence showing that an applicant had been subjected to persecution. As this Court has noted, “[c]oncluding that persecutors’ failure to reveal their identities and motivations ... undercuts an applicant’s credibility does not rest on the ‘legitimate nexus’ required in credibility findings.” Secaida-Rosales, 331 F.3d at 311; see also Poradisova, 420 F.3d at 80 (“The. IJ also unreasonably dismissed as ‘of no value’ the anonymous threatening calls [the petitioner] Tatiana received in 1992 simply, and inexplicably, because they were anonymous.”). To the extent the IJ concluded that the death threats were not “on account of’ a protected ground, the IJ failed to explain adequately the basis for this conclusion. Specifically, the IJ did not explain the basis for his conclusion that Rana Manzur’s attempts to have General Ershad prosecuted did not constitute the expression of a political opinion or cause a political opinion to be imputed to her. Here, Rana Manzur actively pursued General Ershad’s prosecution after Prime Minister Zia, in her campaign, elevated the issue of bringing General Ershad to justice to the political stage. Rana Manzur testified that she began receiving threatening phone calls and visits from the anti-corruption police after she began pursuing General Ershad’s prosecution, and that she was accused of “trying to conflict with” the government by the DGFI for not attending a military ceremony. The IJ asserted that the attempt to prosecute a public official, standing alone, is not sufficient to establish the expression of a political opinion. The IJ also noted parenthetically that purely personal retribution is not persecution on account of political opinion. This Court has rejected an “impoverished view of what political opinions are, especially in a country ... where certain democratic rights have only a tenuous hold.” Yueqing Zhang v. Gonzales, 426 F.3d 540, 546 (2d Cir.2005) (quoting Osorio, 18 F.3d at 1030). In cases of opposition to government corruption, this Court has stated that the central questions for determining the nature of an applicant’s actions, which the IJ neither discussed nor recognized, are “whether the"
},
{
"docid": "22426746",
"title": "",
"text": "in this case never undertook the required examination, and did not explain how the failure to disclose Edralin’s death was relevant to Marcos’s asylum petition; The government points out several inconsistencies in Marcos’s testimony upon which the IJ could have based an adverse credibility finding. But the IJ did not in fact rely upon those inconsistencies, and we therefore cannot rely on them as part of our review of the IJ’s decision. “Because the IJ expressed no further concerns, and the only explicitly articulated reasons rested on impermissible factors, then we conclude from the IJ’s opinion that[the petitioner] was an otherwise credible witness.” Damaize-Job, 787 F.2d at 1338 (emphasis added). Finally, the IJ faulted Marcos for failing to provide documentation of his work for the Red Cross. Once we have determined that the IJ’s proffered reasons for an adverse, credibility determination are “insufficiently supported,” however, an applicant “is not required to provide corroboration to establish the facts to which she testified.” Kaur, 379 F.3d at 890; see also Gui, 280 F.3d at 1227. In sum, because neither ground cited by the IJ is supported by substantial evidence, we reject the adverse credibility determination and accept Marcos’s testimony as true. Kaur, 379 F.3d at 890. We turn to the merits of his claim. III. Eligibility for Asylum The IJ concluded that Marcos was ineligible for asylum both because he failed to demonstrate he had suffered past persecution and because hé did not have a well-founded fear of future persecution. The IJ’s finding regarding past persecution is supported by substantial evidence. Credible death threats such as Marcos received here can support a finding of past persecution. See, e.g., Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir.1998) (holding that death threats from the NPA “are persuasive evidence of past persecution”). In Lim v. INS, however, we “avoid[ed] announcing a blanket rule that in every case threats, without more, compel a finding of past persecution.” 224 F.3d 929, 936 (9th Cir.2000). We noted that “[tjhreats standing alone ... constitute past persecution in only a small category of cases, and only when the threats"
},
{
"docid": "22604792",
"title": "",
"text": "the IJ, and as to this claim, that reasoning was deficient. 3. The IJ’s analysis of petitioners’ claim of past persecution based on the threats that Rana Manzur received in response to her efforts to have General Ershad prosecuted is also insufficient. It is unclear whether the IJ rejected this claim because the petitioners did not identify the source of the threats or because the petitioners did not demonstrate that the threats were “on account of’ a protected ground. To the extent the decision rested on the former conclusion, it was legal error. The IJ cited a case from the Seventh Circuit Court of Appeals, Mitev v. I.N.S., 67 F.3d 1325 (7th Cir.1995), for the proposition that “while threats could amount to persecution, an asylum applicant must identify who issued a particular threat, in what setting and for what purpose.” In Mitev, however, the court was discussing the importance of the “context” of threats and specifically discounted threats that came from co-workers, often in the context of political discussions. Mitev, 67 F.3d at 1331. The court did not conclude that anonymous threats could not be included in the mix of evidence showing that an applicant had been subjected to persecution. As this Court has noted, “[c]oncluding that persecutors’ failure to reveal their identities and motivations ... undercuts an applicant’s credibility does not rest on the ‘legitimate nexus’ required in credibility findings.” Secaida-Rosales, 331 F.3d at 311; see also Poradisova, 420 F.3d at 80 (“The. IJ also unreasonably dismissed as ‘of no value’ the anonymous threatening calls [the petitioner] Tatiana received in 1992 simply, and inexplicably, because they were anonymous.”). To the extent the IJ concluded that the death threats were not “on account of’ a protected ground, the IJ failed to explain adequately the basis for this conclusion. Specifically, the IJ did not explain the basis for his conclusion that Rana Manzur’s attempts to have General Ershad prosecuted did not constitute the expression of a political opinion or cause a political opinion to be imputed to her. Here, Rana Manzur actively pursued General Ershad’s prosecution after Prime Minister Zia, in"
},
{
"docid": "15996636",
"title": "",
"text": "is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. ... 8 U.S.C. § 1101(a)(42)(A). A petitioner can show that he is a refugee entitled to asylum in one of two ways: (1) demonstrating past persecution, which creates a presumption of a well-founded fear of persecution (which the government may rebut); or (2) demonstrating a well-founded fear of future persecution. El Moraghy v. Ashcroft, 331 F.3d 195, 202 (1st Cir.2003). “To prove past persecution, an applicant must provide ‘conclusive evidence’ that he has suffered persecution on one of the five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.” Romilus, 385 F.3d at 6. To demonstrate a well-founded fear of future persecution, the applicant must prove that his fear is both genuine and objectively reasonable. See El Moraghy, 331 F.3d at 203. The applicant’s testimony may be sufficient to demonstrate the objective reasonableness of his fear, “but [the testimony] must constitute credible and specific evidence of a reasonable fear of persecution.” Afful, 380 F.3d at 3. Carcamo’s first two arguments seek to undermine the IJ’s determination that Carcamo did not suffer past persecution. But these arguments only address one aspect of the IJ’s reasoning: that the evidence did not establish the likely source of the threats and thus failed to establish that they were motivated by one of the five statutorily-protected grounds. See Romilus, 385 F.3d at 6. In other words, Carca-mo has failed to question the IJ’s independent determination that the harassment he suffered does not rise to the level of “persecution” within the meaning of our asylum laws. Accordingly, Carcamo cannot prevail in his effort to secure a presumption of likely future persecution because he previously has been persecuted. Cf. In re Public Serv. Co. of N.H., 879 F.2d 987, 989-90 (1st Cir.1989) (per curiam) (affirming because appellant failed to challenge one of two alternative bases for the lower court’s decision). We consequently confine"
}
]
|
365880 | and lost, it was agreed that the warning would be removed after one year. Although the entire disciplinary process became formalized, as there was a union representative present who signed the written memorialization, defendants argue that nonetheless there were no tangible consequences to the October warning, as Aquavia was not docked any pay and the record does not indicate that she suffered any other concrete deprivation, such as loss of an opportunity for promotion. Morris states that “[ajdverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.” 196 F.3d at 110 (emphasis added) (citing Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir.1995) and noting that Kaluczky, in turn, cites REDACTED While the facts of Rutan and other cases cited for this proposition do not‘encompass allegations of reprimand, Rutan is nonetheless instructive. There, the Supreme Court reversed, in part, the Seventh Circuit, which had held that while discharging public employees on the basis of their political affiliation violates the First Amendment, other patronage practices violate the Amendment only when they are the “substantial equivalent of a dismissal,” i.e., when they would lead reasonable persons to resign. The Supreme Court disagreed, holding that “promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees,” 497 U.S. at 75, 110 S.Ct. 2729, recognizing that “there | [
{
"docid": "22637181",
"title": "",
"text": "did not have the support of the Republican Party. Dan O’Brien, formerly a dietary manager with the mental health department, contends that he was not recalled after a layoff because of his party affiliation and that he later obtained a lower paying position with the corrections department only after receiving support from the chairman of the local Republican Party. The District Court dismissed the complaint with prejudice, under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted. 641 F. Supp. 249 (1986). The United States Court of Appeals for the Seventh Circuit initially issued a panel opinion, 848 F. 2d 1396 (1988), but then reheard the appeal en banc. The court affirmed the District Court’s decision in part and reversed in part. 868 F. 2d 943 (1989). Noting that this Court had previously determined that the patronage practice of discharg ing public employees on the basis of their political affiliation violates the First Amendment, the Court of Appeals held that other patronage practices violate the First Amendment only when they are the “substantial equivalent of a dismissal.” Id., at 955. The court explained that an employment decision is equivalent to a dismissal when it is one that would lead a reasonable person to resign. Ibid. The court affirmed the dismissal of Moore’s claim because it found that basing hiring decisions on political affiliation does not violate the First Amendment, but remanded the remaining claims for further proceedings. Rutan, Taylor, and Moore petitioned this Court to review the constitutional standard set forth by the Seventh Circuit and the dismissal of Moore’s claim. Respondents cross-petitioned this Court, contending that the Seventh Circuit’s remand of four of the five claims was improper because the employment decisions alleged here do not, as a matter of law, violate the First Amendment. We granted certiorari, 493 U. S. 807 (1989), to decide the important question whether the First Amendment’s proscription of patronage dismissals recognized in Elrod v. Burns, 427 U. S. 347 (1976), and Branti v. Finkel, 445 U. S. 507 (1980), extends to promotion, transfer, recall,"
}
]
| [
{
"docid": "14964115",
"title": "",
"text": "to the deposition might have given González cause to believe that the summary judgment would not be acted upon, he nonetheless possessed the information and could have informed the court. Since González failed to meet his burden of proving the first and second Mitchell criteria, we find no abuse of discretion in the district court’s denial of his Rule 60(b)(2) motion. The district court’s judgments are affirmed. . We note that the court may have gone too far in barring under collateral estoppel any evidence of González’s failed attempts to be reclassified to higher positions. While the prior adjudication on the settlement agreement would preclude claims that the failure to promote González to a higher position or salary violated the agreement, it is unclear whether it would preclude a separate claim of discrimination for, as an example, failure to promote González to a position for which a less-qualified applicant was hired. There appears to be no identity of issues in such a case, since the former pertains to compliance with the settlement agreement, while the latter pertains to discriminatory promotion practices. Nonetheless, the contractual nature of the settlement agreement may have bound González to accept any position that met its minimal requirements. As the magistrate judge noted, “the stipulated terms do not specify or require that plaintiff be appointed to a position in accordance with his academic background and/or experience.’’ Moreover, since González failed to raise this argument on appeal, we deem it waived. See, e.g., García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 645 (1st Cir.2000). . Subsequent to Agosto-de-Feliciano, the Supreme Court held that certain deprivations less harsh than dismissal — “promotions, transfers, and recalls after layoffs based on political affiliation or support [ — ] are an impermissible infringement on the First Amendment rights of public employees.” Rutan, 497 U.S. at 75, 110 S.Ct. 2729. In so holding, the Court noted that any adverse action against public employees, no matter how minor, infringes First Amendment rights. See id. at 76, n. 8, 110 S.Ct. 2729 (\"[T]he First Amendment ... already protects state employees not only from patronage"
},
{
"docid": "731639",
"title": "",
"text": "a. Relationship of Plaintiffs’ Associational Activities to a Matter of Public Concern “[A] public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern.” Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2004); see also Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999) (“[S]peech on any matter of political, social, or other concern to the community is protected by the First Amendment.”) (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)) (internal quotation marks omitted). Here, all of the associational conduct for which plaintiffs allege retaliation relates to plaintiffs’ “political affiliation or support” and, therefore, meets the “public concern” test and is constitutionally protected. Rutan v. Republican Party of Illinois, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990) (finding that certain adverse employment actions “based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees”); see, e.g., Coogan v. Smyers, 134 F.3d 479, 483-84 (2d Cir.1998), (“Political patronage or party affiliation are impermissible reasons for dismissing government employees absent a showing that party affiliation is an appropriate requirement for the effective performance of the public office involved.”) (internal quotation marks omitted). b. Adverse Employment Action Plaintiffs allege that, following the PERB II decision, defendants refused to apply the wage provisions of the CBA to their positions, thereby imposing a “freeze” on plaintiffs’ compensation. (Compl.¶ 5.) Defendants argue that the wage “freeze” does not constitute an adverse employment action because, pursuant to the Arbitrator’s decision, the CBA did not require the County to provide specific levels of compensation to plaintiffs. “In the context of a First Amendment retaliation claim, ... only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action.” Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 225 (2d Cir.2006) (internal quotation marks omitted). As such, “[a]dverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and"
},
{
"docid": "130360",
"title": "",
"text": "renew Downtown Auto Parks’ lease a second time was thus a refusal of one possible bid. This case falls squarely under the holdings of LaFalce and Triad. A more pertinent objection to application of LaFalce and Triad is that the recent Supreme Court case Rutan v. Republican Party of Illinois, — U.S. -, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), has cast doubt on the validity of the reasoning in those cases. Rutan significantly extended First Amendment protection in the political patronage context. The Supreme Court rejected the view taken by this Court that the First Amendment only barred patronage practices substantially equivalent to a dismissal. See Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir.1988) (en banc), reversed, — U.S. -, 110 S.Ct. 2729, 111 L.Ed.2d 52, on remand, 916 F.2d 715 (7th Cir.1990). The Court instead held that hirings, transfers, promotions and recalls after layoffs based on political affiliation and support are an impermissible infringement on the First Amendment rights of public employees. 110 S.Ct. at 2737, 2739. Although Rutan directly addresses only the plight of government employees and says nothing about the First Amendment rights of independent contractors, the scope of Rutan, and rationale behind it, seem to be at odds with the holding of LaFalce and Triad. Most importantly, we expressed in LaFalce a concern about flooding the federal courts with new First Amendment claims. The Supreme Court apparently has less fear of the expansion of litigation in this area for in Rutan it explicitly granted disappointed applicants, as well as discharged employees, a cause of action. While recognizing that Rutan has altered some of the assumptions upon which the LaFalce and Triad decisions were based, we affirm the continued validity of those earlier cases. Rutan did extend First Amendment protection, but only within the context of government employment. Rutan was the culmination of a line of cases “concerned only with the constitutionality of dismissing public employees for partisan reasons.” Elrod, 427 U.S. at 353, 96 S.Ct. at 2680. All circuits considering the question of whether to extend the holdings of Elrod and Branti"
},
{
"docid": "23151071",
"title": "",
"text": "the “law is less likely to be well established than in other cases” because it is more difficult to “clearly anticipate” the balancing of interests. Melton v. City of Oklahoma City, 879 F.2d 706, 728 (10th Cir.1989), vacated in part, 928 F.2d 920 (10th Cir.1991). In order to be “clearly established” the exact conduct in question does not have to have been previously declared unlawful; however, “in light of preexisting law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 685, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). We have held that in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clear weight of authority from other courts “must have found the law to be as the plaintiff maintains.” Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992). Plaintiff argues that when Defendants transferred Plaintiff, the law was clearly established so that Defendants should have realized that their actions would violate the First Amendment. We agree. In light of the relevant precedent, we conclude that Plaintiffs transfer and change in work schedule as alleged falls within the ambit of unconstitutional detrimental action. As early as 1986, we held that employment action short of discharge may give rise to First Amendment claims. Wren v. Spurlock, 798 F.2d 1313, 1318 (10th Cir.1986). In Wren, the plaintiff, a public school teacher, was harassed, reprimanded and suspended because of her complaints about school conditions. Prior to 1992, the Supreme Court also held that denial of promotions, transfers and other employment opportunities may give rise to First Amendment claims. Rutan v. Republican Patty of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). At issue in Rutan was whether promotions, transfers, recalls from layoffs, and hiring decisions involving public employees could be constitutionally based on political party affiliation and support. Id. at 65, 110 S.Ct. 2729. State employees in Illinois claimed that because they did not support the Republican party, they suffered detrimental employment action and the Supreme Court agreed. Rutan makes clear"
},
{
"docid": "21976819",
"title": "",
"text": "entitlements, and medical privacy rights presumably enjoyed by other District employees is not enough to make it a matter of public concern. Plaintiff was not speaking as an advocate for District employee rights, or even as a concerned citizen; rather, she sought to redress personal employment grievances. Plaintiff also claims that defendants retaliated against her for publicly supporting her union president’s candidacy for a position on the Board of Education during the 2003-04 school year. At this time, plaintiff voiced her support for the candidate “in the general community, at meetings and at social occasions.” (Comply 39.) Specifically, plaintiff handed out fliers to other District employees and asked them to support the candidate in the May 2004 election. This is perhaps the quintessential example of speech related to a matter of public concern. The content, form, and context of this speech relate to a political matter affecting the broader community. Moreover, her motivation for engaging in this speech, at least in theory, was to inform the public of her union president’s candidacy and also, presumably, his stance on the issues. This benefited not only plaintiff herself, but also the community at large. Thus, as a matter of law, plaintiffs public support of the candidate running for a position on the Board of Education is protected speech under First Amendment retaliation law. 2. Adverse Employment Action A plaintiff claiming First Amendment retaliation must also demonstrate that she suffered an adverse employment action. The term “adverse employment action” refers not only to discharge, but also to demotion, refusal to hire or promote, reduction in pay, and reprimand. Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir.1995) (citing Rutan v. Republican Party of Ill., 497 U.S. 62, 75, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52 (1990)). A reassignment or transfer qualifies as an adverse action where in fact it constitutes a demotion; conversely, a refusal to reassign or transfer qualifies as an adverse action where in fact it constitutes a refusal to promote. See Bernheim v. Litt, 79 F.3d 318, 325 (2d Cir.1996). In other words, an employer will not"
},
{
"docid": "130359",
"title": "",
"text": "-, 111 S.Ct. 129, 112 L.Ed.2d 97 (1990). Under LaFalce and Triad, the First Amendment did not forbid Milwaukee from considering plaintiffs adverse lobbying efforts in refusing to extend its leases. Pressed to distinguish its case from this Circuit’s precedents, Downtown Auto Parks argues that it was not involved in a bidding situation, insisting that it had an existing lease which was terminated. Plaintiff’s characterization is clearly incorrect even if we assume that plaintiff is drawing a distinction relevant to First Amendment analysis. The City chose not to extend Downtown Auto Parks’ lease beyond the lease term, which ended in July 1986. It did not breach any contract with Downtown Auto Parks or deprive it of an existing benefit. Upon expiration of Downtown Auto Parks’ leases, the City was free to consider leasing to any company that would supply reasonable terms, see Wis. Stat. § 66.079. The statute requires the City to lease lots if it can find reasonable terms, but does not force it to lease to any particular party. The City’s refusal to renew Downtown Auto Parks’ lease a second time was thus a refusal of one possible bid. This case falls squarely under the holdings of LaFalce and Triad. A more pertinent objection to application of LaFalce and Triad is that the recent Supreme Court case Rutan v. Republican Party of Illinois, — U.S. -, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), has cast doubt on the validity of the reasoning in those cases. Rutan significantly extended First Amendment protection in the political patronage context. The Supreme Court rejected the view taken by this Court that the First Amendment only barred patronage practices substantially equivalent to a dismissal. See Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir.1988) (en banc), reversed, — U.S. -, 110 S.Ct. 2729, 111 L.Ed.2d 52, on remand, 916 F.2d 715 (7th Cir.1990). The Court instead held that hirings, transfers, promotions and recalls after layoffs based on political affiliation and support are an impermissible infringement on the First Amendment rights of public employees. 110 S.Ct. at 2737, 2739. Although Rutan directly"
},
{
"docid": "22830857",
"title": "",
"text": "the effective performance of the public office involved.’ ” Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir.1993) (quoting Branti, 445 U.S. at 518, 100 S.Ct. at 1294). We use the term “policymaker” as a “convenient shorthand” for a government employee who occupies a position for which party affiliation, loyalty or confidence are appropriate. See id. Kaluczky holds the position of Personnel Officer for the City of White Plains. We need not consult the factors typically reviewed to resolve the question of whether this office is a policymaking position, see Vezzetti 22 F.3d at 486, because Kaluezky’s complaint effectively concedes this issue. Among other things, Kaluczky alleges (1) that he was deprived of his statutory duties of “Making personnel decisions regarding appointments ... or layoffs ... or establishing] City personnel practices and/or policy,” see Brown v. Trench, 787 F.2d 167, 168 (3d Cir.1986) (finding authority to hire and fire an indicia of a policymaking position); (2) that he was threatened with the removal of the “labor negotiation functions” traditionally a part of his office; and, (3) that he was not permitted to attend certain “cabinet level meetings,” “strategic personnel meetings,” and “collective bargaining strategy meetings”. Given these responsibilities, it is evident that the White Plains Personnel Officer is within “the category of policymaking positions for which party affiliation and a shared ideology may be an appropriate employment consideration.” Vezzetti, 22 F.3d at 486; see also Regan, 984 F.2d at 580 (stating that relevant factors in determining policymaker are the powers “vested by law” and “inherent in the office”). Policymakers hold their office at the will of their employer, and may be discharged by reason of political affiliations, political beliefs, ideological viewpoints or partisan activity. Thus the First Amendment does not bar “adverse employment action” based solely on the content of a policymaker’s expressive activities or beliefs. Adverse employment actions include discharge, demotion, refusal to hire, refusal to promote, and reprimand. See Rutan, 497 U.S. 62, 110 S.Ct. 2729; McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994). Because Kaluczky is a policymaker, it is clear that — but for his"
},
{
"docid": "2572177",
"title": "",
"text": "The request for immunity must be rejected if there is no issue as to the existence of a particular statutory or constitutional right which a reasonable public official should be aware of. The qualified immunity inquiry must start with the court ascertaining whether or not plaintiff has pled sufficient facts to denote violation of a constitutional right. Santana, 342 F.3d at 23; Concepción v. Zorrilla, 309 F.Supp.2d 201, 213 (D.P.R.2004). Our initial inquiry in this case is to determine whether plaintiffs particular job was shielded from political bias or whether, on the other hand, he held a “policymaking position” or a “position of unusual confidence” which do allow for political affiliation as an appropriate consideration when making personnel-related decisions. See, Gómez v. Rivera Rodríguez, 344 F.3d 103, 110 (1st Cir.2003); Padillas-García v. Guillermo Rodríguez, 212 F.3d 69, 74. (1st Cir.2000). “Public employees who do not hold confidential policy-making positions are protected from adverse employment actions based on political affiliation.” Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 7 (1st Cir.2000). See, Duriex-Gauthier v. López-Nieves, 274 F.3d 4, 11 (1st Cir.2001) (“position is one in which political affiliation is a reasonably necessary requirement”). No claim has been made in this case that plaintiff held a policymaking position prior to his transfer nor one that would demand confidentiality. Accordingly, we conclude plaintiffs political views could not be considered in the transfer determination. The protection against political patronage practices resulting in dismissals initially validated in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), was subsequently extended to also cover promotions, transfers, recalls or .hiring decisions in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). Rutan specifically ruled that “promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees.” 497 U.S. at 75, 110 S.Ct. 2729, 111 L.Ed.2d 52. In this case, it is specifically alleged that the individual co-defendants were able to understand that"
},
{
"docid": "22803428",
"title": "",
"text": "a plaintiff making a First Amendment retaliation claim under § 1983 must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-87, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (Mount Healthy City). If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action “even in the absence of the protected conduct.” Id. at 287, 97 S.Ct. 568. We analyze the three factors more particularly. 1. Protected Speech. The question of whether certain speech enjoys a protected status under the First Amendment is one of law, not fact. See Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684. Central to this inquiry is whether the speech may “be fairly characterized as constituting speech on a matter of public concern.” Id. at 146, 103 S.Ct. 1684. As a general rule, speech on “any matter of political, social, or other concern to the community” is protected by the First Amendment. Id. 2. Adverse Employment Action. Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand. See Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir.1995) (citing Rutan v. Republican Party, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). The district court erred when it held that a plaintiff has not suffered an adverse employment action unless he or she has “suffered dismissal, reduction in pay, or demotion in rank,” quoting language from the concurring opinion in Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir.1996). The majority opinion in Bernheim suggests, however, that lesser actions may also be considered adverse employment actions. 79 F.3d at 324-26 (adverse employment actions may include"
},
{
"docid": "21976820",
"title": "",
"text": "his stance on the issues. This benefited not only plaintiff herself, but also the community at large. Thus, as a matter of law, plaintiffs public support of the candidate running for a position on the Board of Education is protected speech under First Amendment retaliation law. 2. Adverse Employment Action A plaintiff claiming First Amendment retaliation must also demonstrate that she suffered an adverse employment action. The term “adverse employment action” refers not only to discharge, but also to demotion, refusal to hire or promote, reduction in pay, and reprimand. Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir.1995) (citing Rutan v. Republican Party of Ill., 497 U.S. 62, 75, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52 (1990)). A reassignment or transfer qualifies as an adverse action where in fact it constitutes a demotion; conversely, a refusal to reassign or transfer qualifies as an adverse action where in fact it constitutes a refusal to promote. See Bernheim v. Litt, 79 F.3d 318, 325 (2d Cir.1996). In other words, an employer will not be shielded from liability for First Amendment retaliation simply by couching the action in terms of “reassignment” or “transfer.” See id. Courts must look to the facts, e.g., differences in job description or title, change in days or hours worked, change in salary or benefits, etc., to determine the true nature of an employment action. Since the only protected speech in this case is that which relates to plaintiffs public support of her union president’s political candidacy, the ensuing consideration of adverse employment actions is limited to those allegedly taken in response to this speech. Plaintiff claims that she supported her union president’s candidacy for a position on the Board of Education throughout the 2003-04 school year and, as a result, was “reprimanded” by Cook. (Comply 40.) Plaintiff does not elaborate as to how Cook’s actions adversely affected her employment situation; however, since a reprimand is generally held to constitute an adverse employment action, see Kaluczky, 57 F.3d at 208, and at this stage the plaintiffs complaint must be liberally construed, she has sufficiently alleged"
},
{
"docid": "23151072",
"title": "",
"text": "agree. In light of the relevant precedent, we conclude that Plaintiffs transfer and change in work schedule as alleged falls within the ambit of unconstitutional detrimental action. As early as 1986, we held that employment action short of discharge may give rise to First Amendment claims. Wren v. Spurlock, 798 F.2d 1313, 1318 (10th Cir.1986). In Wren, the plaintiff, a public school teacher, was harassed, reprimanded and suspended because of her complaints about school conditions. Prior to 1992, the Supreme Court also held that denial of promotions, transfers and other employment opportunities may give rise to First Amendment claims. Rutan v. Republican Patty of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). At issue in Rutan was whether promotions, transfers, recalls from layoffs, and hiring decisions involving public employees could be constitutionally based on political party affiliation and support. Id. at 65, 110 S.Ct. 2729. State employees in Illinois claimed that because they did not support the Republican party, they suffered detrimental employment action and the Supreme Court agreed. Rutan makes clear that there are “deprivations less harsh than dismissal that nevertheless” violate a public employees’ rights under the First Amendment. Id. at 75, 110 S.Ct. 2729. Furthermore, the law in other circuits was clearly established prior to 1992. The Seventh Circuit recognized that employment decisions well short of discharge could give rise to First Amendment claims. Greenberg v. Kmetko, 922 F.2d 382, 384 (7th Cir.1991) (“We know today .. j that a series of little steps to get the goat of the speaker, including failure to invite her to a birthday party, can violate the First Amendment.”); see also Click v. Copeland, 970 F.2d 106 (5th Cir.1992) (transfer of deputies to less desirable positions in retaliation for announcing their candidacy for sheriff raised First Amendment claim); Waters v. Chaffin, 684 F.2d 833, 837 n. 9 (11th Cir.1982) (holding that demotion and transfer implicate First Amendment); Bennis v. Gable, 823 F.2d 723, 731 (3rd Cir.1987) (constitutional violation is not based on harshness of the sanction, “but in the imposition of any disciplinary action for the exercise of"
},
{
"docid": "6186890",
"title": "",
"text": "right may be actionable when it involves promotion, transfer, recall after layoff, and hiring decisions, although not amounting to termination of employment or the substantial equivalent of dismissal. Id. at 75, 110 S.Ct. 2729. The employer’s actions which were challenged were decisions based on party affiliation or support. The Court held: We therefore determine that promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees. Id. at 75,110 S.Ct. 2729. We are satisfied that this court’s application of the protective principles from Rutan had clearly established the contours of First Amendment rights so as to cover plaintiff Schuler’s actions as of the critical time frame in 1995 for this case. In Dill v. City of Edmond, 155 F.3d 1193, 1204-05 (10th Cir.1998), we decided that in June 1992, the protected nature of a police officer’s First Amendment rights was such that when he spoke out about the existence of exculpatory evidence concerning a murder case, he was protected from retaliatory actions in transferring him from a detective position to patrol officer. In Dill, we cited Rutan and Wren v. Spurlock, 798 F.2d 1313, 1318 (10th Cir.1986), and held that in June 1992, the law was clearly established so as to defeat a qualified immunity defense there. We further noted in Dill that Rutan had made clear that there were deprivations less harsh than dismissal which nevertheless violated a public employee’s rights under the First Amendment. Dill, 155 F.3d at 1205. In Morfin v. Albuquerque Public Schools, 906 F.2d 1434 (10th Cir.1990), the plaintiffs were school teachers who filed a grievance against the school’s principal and made complaints concerning the principal to one defendant, the principal’s supervisor. The plaintiffs were subjected to substantial harassment and abuse, one being transferred to another school and another not having her contract renewed. We held that such conduct on the part of the defendants violated the plaintiffs’ protected First Amendment right of free speech. Id. at 1437-38. We rejected the defendants’ apparent position that “only adverse employment decisions, such as termination,"
},
{
"docid": "15188450",
"title": "",
"text": "both that there was an adverse employment action and that this adverse action was motivated by discrimination on the basis of political affiliation. See, e.g., Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 22 (1st Cir.2006). “Adverse employment action” includes not only discharge and demotions, but also a government entity’s refusal to promote, transfer, recall after layoff, or even hire an employee. Rutan v. Republican Party of Ill., 497 U.S. 62, 79, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). As the district court noted, plaintiff has alleged no specific changes in his existing working conditions. Further, PREPA has not turned him down for a promotion. Morales-Tañon asserts only that PREPA has not begun accepting applications for a position for which he feels eminently qualified. As the district court summarized, “[w]e have not found, nor has Plaintiff cited to, a case where the failure to open up a position in a timely fashion served as the basis for a political or employment discrimination claim.” Plaintiff still has not identified such a case on appeal. We agree there is no cognizable adverse employment action here within the scope of Rutan. Plaintiff also makes no coherent claim of a violation of free speech rights independent of his political affiliation claim. Plaintiffs procedural due process rights claim does not fare better. The district court explicated and applied the correct standard. Morales-Tañon argues primarily that the court impermissibly reached this issue sua sponte. We do not agree. There is no concern about unfairness to plaintiff. While defendants’ motion to dismiss the § 1983 claims focused on plaintiffs First Amendment arguments (which comprised the bulk of plaintiffs complaint), defendants moved to dismiss the entire § 1983 cause of action for failure to state a claim, not just the § 1983 claim premised on a First Amendment violation. The motion also referenced the very reason why the district court found the due process claim to be meritless: “the complaint does not allege that [the presidency] position was adjudicated in property [sic] to anyone,” that is, there was no assertion of a property interest. Fundamentally, plaintiff has failed"
},
{
"docid": "14964116",
"title": "",
"text": "latter pertains to discriminatory promotion practices. Nonetheless, the contractual nature of the settlement agreement may have bound González to accept any position that met its minimal requirements. As the magistrate judge noted, “the stipulated terms do not specify or require that plaintiff be appointed to a position in accordance with his academic background and/or experience.’’ Moreover, since González failed to raise this argument on appeal, we deem it waived. See, e.g., García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 645 (1st Cir.2000). . Subsequent to Agosto-de-Feliciano, the Supreme Court held that certain deprivations less harsh than dismissal — “promotions, transfers, and recalls after layoffs based on political affiliation or support [ — ] are an impermissible infringement on the First Amendment rights of public employees.” Rutan, 497 U.S. at 75, 110 S.Ct. 2729. In so holding, the Court noted that any adverse action against public employees, no matter how minor, infringes First Amendment rights. See id. at 76, n. 8, 110 S.Ct. 2729 (\"[T]he First Amendment ... already protects state employees not only from patronage dismissals but also from even an act of retaliation as trivial as failing to hold a birthday party for a public employee ... when intended to punish her for exercising her free speech rights”) (internal quotation marks and citation omitted). Thus, we have questioned whether Rutan effectively overruled Agosto-de-Feliciano, particularly its so-called \"changeover” defense. See Rodríguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 42 (1st Cir.1993) (Torruella, J„ concurring). Although subsequent First Circuit decisions do not regard Rutan as necessarily foreclosing the \"unreasonably inferior” standard of Agosto-de-Feliciano, they leave unresolved any conflict in such standard. See, e.g., Acosta-Orozco v. Rodríguez-de-Rivera, 132 F.3d 97, 101 (1st Cir.1997); Ortiz García v. Toledo Fernández, 405 F.3d 21, 23 n. 4 (1st Cir.2005). Nonetheless, since any such conflict has no impact on our holding, we save that question for another day."
},
{
"docid": "13594634",
"title": "",
"text": "96 S.Ct. 2673 (quoting Kusper v. Pontikes, 414 U.S. 51, 57, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973)), the Supreme Court held that this form of patronage, which punishes a person for their political beliefs, violated the First Amendment’s protections, see Elrod, 427 U.S. at 359-60, 96 S.Ct. 2673. The Supreme Court again addressed the right in 1980 in Branti. See 445 U.S. at 507, 100 S.Ct. 1287. In Branti, a new county public defender began terminating employees from his office as soon as he was appointed, of which the vast majority were members of his opposing political party. See 445 U.S. at 509, 100 S.Ct. 1287. The Supreme Court, in an opinion by the Justice Powell, rejected the petitioner’s argument that Elrod protects employees only from being terminated because of the “employee’s failure to capitulate to political coercion,” by holding that it is sufficient to find a violation based solely on the fact that employees were terminated because they were affiliated with or sponsored a specific political party. 445 U.S. at 517, 100 S.Ct. 1287. In Rutan v. Republican Party of Illinois, the Governor of Illinois placed a freeze on hiring, transferring, promoting, or any similar actions by state agencies without the Governor’s express permission. 497 U.S. at 65-66, 110 S.Ct. 2729. The petitioners alleged that the Governor, a Republican, was granting exceptions to the freeze only to employees who supported the Republican Party. See 497 U.S. at 66-67, 110 S.Ct. 2729. The Supreme Court, in an opinion written by Justice Brennan, held that the rights articulated in Elrod and Branti extended beyond protection from dismissal but encompassed protection from any adverse employment action-—denial of promotions, transfers, or recalls after layoffs—-on the basis of political affiliation. See 497 U.S. at 75, 110 S.Ct. 2729. 2. Tenth Circuit Cases Involving Political Affiliation Retaliation The Tenth Circuit has also addressed in a number of cases the right to be free from adverse employment action because of political affiliation. In Dickeson, a new sheriff was elected, and shortly after the election, he discharged the head jailer and administrative assistant, both of whom"
},
{
"docid": "22783710",
"title": "",
"text": "discussions concerning public affairs were confused with the attempt to constitutionalize the employee grievance that we see presented here. 461 U.S. at 154, 103 S.Ct. at 1694 (emphasis added). Neither Connick nor any of the other authorities cited above considered whether the employer’s action was sufficiently detrimental to support a claim for relief. It was not until Rutan v. Republican Party that the Supreme Court held that an employee who suffered an adverse employment action other than dismissal could maintain a First Amendment tort suit. 497 U.S. at 75, 110 S.Ct. at 2737. In that case, the Seventh Circuit had held that the only actionable employment decisions are those that are the “substantial equivalent of a dismissal.” 868 F.2d 943, 955 (7th Cir.1989). The Supreme Court rejected this test as “unduly restrictive because it fails to recognize that there are deprivations less harsh than dismissal that nevertheless press state employees and applicants to conform their beliefs and associations to some state-selected orthodoxy,” 497 U.S. at 75, 110 S.Ct. at 2737, and held that “promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees.” Id. As in Connick, however, the Court warned that “[t]he First Amendment is not a tenure provision, protecting public employees from actual or constructive discharge.” Id. at 76, 110 S.Ct. at 2737-38. A few circuits have drawn a line between actionable claims of retaliation and those insufficient to support a claim, employing a balancing process that approximates what the Supreme Court contemplated in Pickering and its progeny. In Dorsett v. Board of Trustees for State Colleges & Univs., 940 F.2d 121, 123 (5th Cir.1991), the Fifth Circuit upheld summary judgment in favor of the defendants, holding that a state university professor who alleged “that various administrative decisions had harmed his reputation, that he had been unfairly denied summer employment and salary increases, and that he had suffered other miscellaneous harass-ments” could not maintain an action for retaliation. The Fifth Circuit explained that [t]he continuing retaliatory actions alleged by [the plaintiff] appear to be"
},
{
"docid": "22803429",
"title": "",
"text": "1684. Central to this inquiry is whether the speech may “be fairly characterized as constituting speech on a matter of public concern.” Id. at 146, 103 S.Ct. 1684. As a general rule, speech on “any matter of political, social, or other concern to the community” is protected by the First Amendment. Id. 2. Adverse Employment Action. Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand. See Kaluczky v. City of White Plains, 57 F.3d 202, 208 (2d Cir.1995) (citing Rutan v. Republican Party, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). The district court erred when it held that a plaintiff has not suffered an adverse employment action unless he or she has “suffered dismissal, reduction in pay, or demotion in rank,” quoting language from the concurring opinion in Bernheim v. Litt, 79 F.3d 318, 327 (2d Cir.1996). The majority opinion in Bernheim suggests, however, that lesser actions may also be considered adverse employment actions. 79 F.3d at 324-26 (adverse employment actions may include negative evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class preparation periods, failure to process teacher’s insurance forms, transfer from library to classroom teaching as an alleged demotion, and assignment to classroom on fifth floor which aggravated teacher’s physical disabilities). 3. Causal Connection Between Speech and Adverse Employment Action. The causal connection must be sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action, that is to say, the adverse employment action would not have been taken absent the employee’s protected speech. See Mount Healthy City, 429 U.S. at 287, 97 S.Ct. 568. Causation can be established either indirectly by means of circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus. See Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990). Summary judgment is precluded where questions regarding an employer’s motive predominate in the inquiry regarding how important a role the protected speech played"
},
{
"docid": "22830858",
"title": "",
"text": "(3) that he was not permitted to attend certain “cabinet level meetings,” “strategic personnel meetings,” and “collective bargaining strategy meetings”. Given these responsibilities, it is evident that the White Plains Personnel Officer is within “the category of policymaking positions for which party affiliation and a shared ideology may be an appropriate employment consideration.” Vezzetti, 22 F.3d at 486; see also Regan, 984 F.2d at 580 (stating that relevant factors in determining policymaker are the powers “vested by law” and “inherent in the office”). Policymakers hold their office at the will of their employer, and may be discharged by reason of political affiliations, political beliefs, ideological viewpoints or partisan activity. Thus the First Amendment does not bar “adverse employment action” based solely on the content of a policymaker’s expressive activities or beliefs. Adverse employment actions include discharge, demotion, refusal to hire, refusal to promote, and reprimand. See Rutan, 497 U.S. 62, 110 S.Ct. 2729; McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994). Because Kaluczky is a policymaker, it is clear that — but for his fixed term of office— the defendants would be free to fire him. Putting aside for the moment the issue of tenure, the policymaker exception would permit the defendants to isolate Kaluczky politically, exclude him from high-level meetings, withhold from him sensitive and confidential information, and transfer all of his policy-making responsibilities to persons loyal to the defendants — all of which Kaluczky characterizes as “acts of retribution”. These measures are fully condoned by the rationale of the Elrod-Branti line of cases regarding patronage dismissals. An administration has an interest in ensuring that its high-level, policymaking employees adhere to the party line, and promote and implement the agenda of that administration. See e.g., Elrod, 427 U.S. at 367, 96 S.Ct. at 2686 (government entity has interest in preventing employees from “obstructing the implementation of policies of the new administration”); Rutan, 497 U.S. at 74, 110 S.Ct. at 2737 (government entity has interest is “securing employees who will loyally implement its policies”); Regan, 984 F.2d at 580 (“Elected officials are charged with carrying forth the mandate of"
},
{
"docid": "6186889",
"title": "",
"text": "no uncertainty on this question. We have said that a right is “clearly established” when “the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Horstkoetter v. Department of Public Safety, 159 F.3d 1265, 1278 (10th Cir.1998) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). The plaintiff need not show that the very action in question was previously held unlawful, but she must demonstrate that there is a Supreme Court or Tenth Circuit decision on point, or that the clearly established weight of authority from other courts is the law, as the plaintiff maintains. Horstkoetter, 159 F.3d at 1278. We require some, but not identical, correspondence between the cases cited and the factual situation in the case at hand. Id. Plaintiff relies on Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). There the Court determined that a government employer’s conduct in retaliation against the exercise of a protected right may be actionable when it involves promotion, transfer, recall after layoff, and hiring decisions, although not amounting to termination of employment or the substantial equivalent of dismissal. Id. at 75, 110 S.Ct. 2729. The employer’s actions which were challenged were decisions based on party affiliation or support. The Court held: We therefore determine that promotions, transfers, and recalls after layoffs based on political affiliation or support are an impermissible infringement on the First Amendment rights of public employees. Id. at 75,110 S.Ct. 2729. We are satisfied that this court’s application of the protective principles from Rutan had clearly established the contours of First Amendment rights so as to cover plaintiff Schuler’s actions as of the critical time frame in 1995 for this case. In Dill v. City of Edmond, 155 F.3d 1193, 1204-05 (10th Cir.1998), we decided that in June 1992, the protected nature of a police officer’s First Amendment rights was such that when he spoke out about the existence of exculpatory evidence concerning a murder case, he was protected from retaliatory actions"
},
{
"docid": "7762781",
"title": "",
"text": "Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). The trial court ruled that Pierce did not establish the third element. The court determined that causation was lacking. Before we can determine whether evidence of causation exists, we must identify the protected speech and the harm. Pierce’s protected speech consists of her whistleblowing activity, which occurred regularly between 1990 and 1993. Both Pierce and the trial court agreed that numerous examples of protected speech were present. The trial court disagreed with Pierce, however, with regard to harm. The trial court cited the January 1993 reprimand, the May 1993 probation/re-duetion in pay, and the minor disciplinary write-ups as adverse employment decisions. Pierce points to other events that she claims had the effect of chilling her speech. To establish a First Amendment violation, a public employee must demonstrate that she has suffered an adverse employment action for exercising her right to free speech. McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.1994). Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands. Id. (citing Rutan v. Republican Party, 497 U.S. 62, 74, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52 (1990)). The Supreme Court in Rutan held that the scope of harm actionable under the First Amendment was broader than actual or constructive discharge from employment. 497 U.S. at 74, 110 S.Ct. at 2737. Although Rutan concerned employment practices relating to political patronage, we have applied Rutan to retaliation claims. See Click v. Copeland, 970 F.2d 106, 110-11 (5th Cir.1992); see also Dorsett v. Board of Trustees for State Colleges & Univs., 940 F.2d 121, 123 (5th Cir.1991) (denying First Amendment claim because alleged retaliatory acts were not actionable). Pierce would include other events within the scope of harm actionable under the First Amendment. We disagree. Although some actions may have had the effect of chilling her protected speech, they are not actionable. For instance, Pierce was investigated once for trafficking and once for a verbal altercation. Neither investigation resulted in any action being taken against Pierce."
}
]
|
119183 | S.Ct. 285, 50 L.Ed.2d 251 (1977) (citations and internal quotation marks omitted). The Court acknowledged that deliberate indifference may be manifested by “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05, 97 S.Ct. 285; see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999) (reiterating that deliberate indifference may be demonstrated by denying, delaying or preventing a prisoner from receiving needed or recommended medical treatment). Estelle instructed, however, that negligence does not violate the Eighth Amendment. Id. at 106, 97 S.Ct. 285. Thus, matters relating to the exercise of professional judgment that may constitute medical malpractice are not violative of the Eighth Amendment proscription. Id. at 107, 97 S.Ct. 285; REDACTED Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir.1993) (acknowledging that a deliberate indifference claim requires that a prisoner demonstrate “more than negligence”). In Farmer v. Brennan, the Supreme Court explained that the term “deliberate indifference” lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” 511 U.S. at 836, 114 S.Ct. 1970. The Court instructed that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both | [
{
"docid": "22661694",
"title": "",
"text": "S., at 104, and its use there shows that deliberate indifference describes a state of mind more blameworthy than negligence. In considering the inmate’s claim in Estelle that inadequate prison medical care violated the Cruel and Unusual Punishments Clause, we distinguished “deliberate indifference to serious medical needs of prisoners,” ibid., from “negligente] in diagnosing or treating a medical condition,” id., at 106, holding that only the former violates the Clause. We have since read Estelle for the proposition that Eighth Amendment liability requires “more than ordinary lack of due care for the prisoner’s interests or safety.” Whitley v. Albers, 475 U. S. 812, 319 (1986). While Estelle establishes that deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. That point underlies the ruling that “application of the deliberate indifference standard is inappropriate” in one class of prison cases: when “officials stand accused of using excessive physical force.” Hudson v. McMillian, 503 U. S., at 6-7; see also Whitley, supra,, at 320. In such situations, where the decisions of prison officials are typically made “ fin haste, under pressure, and frequently without the luxury of a second chance,’ ” Hudson v. McMillian, supra, at 6 (quoting Whitley, supra, at 320), an Eighth Amendment claimant must show more than “indifference,” deliberate or otherwise. The claimant must show that officials applied force “maliciously and sadistically for the very purpose of causing harm,” 503 U. S., at 6 (internal quotation marks and citations omitted), or, as the Court also put it, that officials used force with “a knowing willingness that [harm] occur,” id., at 7 (internal quotation marks and citation omitted). This standard of purposeful or knowing conduct is not, however, necessary to satisfy the mens rea requirement of deliberate indifference for claims challenging conditions of confinement; “the very high state of mind prescribed by Whitley does not apply to prison conditions cases.” Wilson, supra, at 302-303. With deliberate indifference lying somewhere between the poles"
}
]
| [
{
"docid": "19959567",
"title": "",
"text": "indifferent to her serious medical needs, in violation of the Eighth and Fourteenth Amendments. “ ‘Deliberate indifference’ by prison officials to an inmate’s serious medical needs constitutes ‘unnecessary and wanton inflic tion of pain’ in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.” Miller v. Calhoun County, 408 F.3d 803, 812 (6th Cir.2005) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The Eighth Amendment, by its terms, applies only to post-conviction inmates. Id. Pretrial detainees, however, are guaranteed the equivalent right to adequate medical treatment by the Due Process Clause of the Fourteenth Amendment, and are subject to the same deliberate-indifference standard of care. Id. “Mere negligence or malpractice is insufficient to establish an Eighth Amendment violation.” Bowman, 350 F.3d at 544 (citing Estelle, 429 U.S. at 106 n. 14, 97 S.Ct. 285). Instead, “[a] prison official cannot be found hable ... for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective component of the deliberate-indifference standard requires that the inmate have a “sufficiently serious” medical need such that she is “incarcerated under conditions posing a substantial risk of serious harm.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) (quoting Farmer, 511 U.S. at 834, 114 S.Ct. 1970). In addition, the inmate must show “that the prison official possessed a ‘sufficiently culpable state of mind....’ Deliberate indifference requires a degree of culpability greater than mere negligence, but less than ‘acts or omissions for the very purpose of causing harm or with knowledge that harm will result.’ ” Miller, 408 F.3d at 813 (quoting Farmer, 511 U.S. at 834-35, 114 S.Ct. 1970). The jury in the present case determined that none of the individual officers had met this standard of"
},
{
"docid": "1062079",
"title": "",
"text": "complaint liberally, this court “must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.” Id. (citation omitted). THE EIGHTH AMENDMENT A “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (citation omitted). “This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” Id. at 104-05, 97 S.Ct. 285. “ ‘Deliberate indifference’ involves both an objective and a subjective component.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000). The objective component is met if the deprivation is “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation omitted). “A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock, 218 F.3d at 1209 (quotation omitted). “The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.” Id. (quotation omitted). In measuring a prison official’s state of mind, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.1996) (quotation omitted). THE DISTRICT COURT ORDER The district court concluded that the allegations in Mr. Martinez’s complaint were sufficient to establish an objectively serious deprivation. However, the court found that the allegations failed to meet the subjective test of deliberate"
},
{
"docid": "11429723",
"title": "",
"text": "wanton infliction of pain’... proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). However, not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105, 97 S.Ct. 285. “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Id. at 106, 97 S.Ct. 285. “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. (emphasis added). In Estelle, the Supreme Court established the “deliberate indifference” standard. The Court further clarified the meaning of that term in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), a decision regarding prison officials’ duty to protect inmates from violence at the hands of other inmates. In Farmer, the Court held that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837, 114 S.Ct. 1970. However, “an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that a harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842, 114 S.Ct. 1970. Further, “[w]hether a prison official had the requisite knowledge"
},
{
"docid": "22268669",
"title": "",
"text": "399 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998). I It is well settled that the “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 182-83, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). However, not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Id. at 105, 97 S.Ct. 285. “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Id. at 106, 97 S.Ct. 285. “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. In Estelle, the Supreme Court established the “deliberate indifference” standard. The meaning of that term was further clarified by the Supreme Court in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), a case that considered its meaning with reference to a prison’s duty to protect its inmates from violence at the hands of other inmates. In Farmer, the Court held that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837, 114 S.Ct. 1970. However, “an Eighth Amendment claimant need not show that a prison official acted or failed to act"
},
{
"docid": "14127933",
"title": "",
"text": "§ 1983, a prisoner must demonstrate that prison authorities were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). As the Supreme Court further clarified: a prison official cannot be found liable under the Eighth Amendment ... unless the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In cases involving medical care, a prisoner’s claims of negligent diagnosis or treatment do not rise to the level of deliberate indifference. Estelle, 429 U.S. at 106, 97 S.Ct. 285 (“[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Parham v. Johnson, 126 F.3d 454, 458 n. 7 (3d Cir.1997) (recognizing “well-established law in this and virtually every circuit that actions characterizable as medical malpractice do not rise to the level of ‘deliberate indifference’ ”). In addition, physicians’ decisions not to perform particular tests or diagnostic measures on a prisoner will not support a § 1983 claim because these decisions are considered medical judgments that are non-actionable. Estelle, 429 U.S. at 107, 97 S.Ct. 285; Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d Cir.1987) (inmate’s complaints about medical care “merely reflect a disagreement with doctors over the proper means of treatment].”); United States ex rel. Walker v. Fayette County, Pennsylvania, 599 F.2d 573, 575 n. 2 (3d Cir.1979) (noting that “where dispute is over adequacy of the treatment, federal courts are generally reluctant to second guess a medical judgment and to constitutionalize claims which sound in state tort law.”). Consequently, for an Eighth Amendment claim to succeed based on improper medical treatment, the prisoner must show that treatment consisted of “act[s] which were either intentionally injurious, callous, grossly negligent, shocking to the conscience, un conscionable, intolerable to the fundamental fairness or barbarous.” Miller v. Hoffman, No."
},
{
"docid": "23690088",
"title": "",
"text": "state of nature take its course.” Thus, in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Court held that the Eighth Amendment requires the government “to provide medical care for those whom it is punishing by incarceration” because the failure to do so “may actually produce physical torture or a lingering death” or “[i]n less serious cases, ... may result in pain and suffering which no one suggests would serve any penological purpose.” Id. at 103, 97 S.Ct. 285 (internal citations omitted). The failure to provide such medical care may result in a violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment. Id. In Estelle, the Supreme Court held that deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amend ment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Id. at 104, 97 S.Ct. 285 (internal citations omitted). The Court has noted, however, that the term deliberate indifference “describes a state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835, 114 S.Ct. 1970. Indeed, “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 105, 97 S.Ct. 285. The failure to address a serious medical need rises to the level of a constitutional violation where both objective and subjective requirements are met. See Farmer, 511 U.S. at 833, 114 S.Ct. 1970. First, the failure to protect from risk of harm must be objectively “sufficiently serious.” Id. To meet this requirement, Harrison must show “the existence of a ‘sufficiently serious’ medical need.” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004). Second, to satisfy the subjective requirement, Harrison must show “a sufficiently culpable state of mind in delaying medical care.” Id. (internal citations omitted). This subjective requirement is met where a plaintiff demonstrates that prison officials acted with"
},
{
"docid": "9000266",
"title": "",
"text": "inflicts pain by acting with deliberate indifference to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). To establish such a constitutional violation, a claimant must prove that, objectively assessed, he had a “sufficiently serious” medical need to require medical treatment, and that a prison guard, subjectively aware of the need and of its seriousness, nevertheless acted with “deliberate indifference” to it by declining to secure available medical attention. Farmer v. Brennan, — U.S. -, -, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994); Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992); Wilson v. Seiter, 501 U.S. 294, 297-98, 111 S.Ct. 2321, 2323-24, 115 L.Ed.2d 271 (1991). The parties do not dispute that Brice’s injury (the trauma and pain he suffered due to the four hour delay before treatment of his jaw) was sufficiently serious to meet the objective inquiry. They do dispute, however, whether Deputy Nieves had a sufficiently culpable state of mind to be found to have acted with deliberate indifference to Brice’s needs. The Supreme Court recently has clarified the meaning of “deliberate indifference” and its subjective nature in this context in Farmer v. Brennan, — U.S.-, 114 S.Ct. 1970, 128 L.Ed.2d 811. Justice Souter, writing for the majority, explained that it entails “more than ordinary lack of due care for the prisoner’s interests or safety,” or “more than mere negligence,” but “less than acts or omissions [done] for the very purpose of causing harm or with knowledge that harm will result.” Id. at -, 114 S.Ct. at 1978. The Court held that deliberate indifference in this context lies somewhere between negligence and purpose or knowledge: namely, recklessness of the subjective type used in criminal law. Id. The Court summarized: a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn"
},
{
"docid": "2704821",
"title": "",
"text": "may also be determined by reference to the effect of denying or delaying medical treatment.” Sassower, 1995 WL 222206, at *8. However, “[m]ere delay in the rendering of medical treatment in and of itself does not rise to the level of a constitutional violation ... To demonstrate a constitutional violation, a plaintiff must show that he sustained substantial harm because of the delay in the rendering of medical treatment.” Burtton v. Gritter, 95 Civ. 504, 1995 WL 729312, at *4 (N.D.Ind. Nov. 17, 1995) (citations omitted). With regard to the subjective component, the “charged prison officials must have acted with a sufficiently culpable state of mind by being deliberately indifferent to the health or safety of an inmate.” King v. Department of Correction, 95 Civ. 3057, 1998 WL 67669, at *5 (S.D.N.Y. February 18, 1998) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). Deliberate indifference to serious medical needs exists only when a prison official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Deliberate indifference may also be manifested by “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (footnotes omitted). Negligence, however, does not suffice to establish a constitutional violation. Daniels v. Williams, 474 U.S. 327, 333, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Moreover, the Eighth Amendment is only violated by deliberate indifference to medical needs if those needs are serious. Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (“society does not expect that prisoners will have unqualified access to health care”). Here, plaintiff does not allege facts sufficient to rise to the level of a constitutional violation. Although it is beyond dispute that he was forced to wait three days before"
},
{
"docid": "22410189",
"title": "",
"text": "at 105, 97 S.Ct. 285; see also Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir.1993) (“[T]he law is clear that simple medical malpractice is insufficient to present a constitutional violation.”); White v. Napoleon, 897 F.2d 103, 110 (3d Cir.1990) (“[Cjertainly no claim is stated when a doctor disagrees with the professional judgment of another doctor. There may, for example, be several acceptable ways'to treat an illness.”)(emphasis omitted). “Deliberate indifference,” therefore, requires “obduracy and wantonness,” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk. See Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (stating that “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm”). We have found “deliberate indifference” in a variety of circumstances, including where the prison official (1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment. See Durmer, 991 F.2d at 68 (citing Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir.1987)). We also have found “deliberate indifference” to exist where the prison official persists in a particular course of treatment “in the face of resultant, pain and risk of permanent injury.” Napoleon, 897 F.2d at 109-11 (holding that allegations of several instances of flawed medical treatment state a claim under Eighth Amendment). In reaching its conclusion that the plaintiffs had alleged a violation of their Eighth Amendment rights, the District Court relied on the experts’ reports submitted by the parties. The Court first found that genuine issues of material fact existed on whether the plaintiffs were “served a meal appropriate for their diabetic condition.” Rouse I, 987 F.Supp. at 308. The Court noted the “numerous deficiencies” cited by plaintiffs’ expert, including (1) lack of portion control, (2) unavailability of diabetes-appropriate meals, snacks, and low-sugar foods,"
},
{
"docid": "5016165",
"title": "",
"text": "deliberate indifference to serious medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their presence to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Id. at 104-05, 97 S.Ct. at 291-92 (internal quotations and citations omitted). The Estelle Court recognized however that “every claim by a prisoner that he has not received adequate medical treatment [does not] state[] a violation of the Eighth Amendment.” Id. at 105, 97 S.Ct. at 291. [I]n the medical context, ... a complaint that physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege that acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend evolving standards of decency in violation of the Eighth Amendment. Id. at 106, 97 S.Ct. at 292 (internal quotations and citation omitted); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (recognizing that “more than ordinary lack of due care for [a] prisoner’s interest or safety” is required to establish an Eighth Amendment claim). However, the Supreme Court has also recognized that while “deliberate indifference” under Estelle requires more than a showing of mere negligence, “something less than [a showing of] acts or omissions for the very purpose of causing harm or with knowledge that harm will result” will suffice. Farmer, — U.S. at -, 114 S.Ct. at 1978. The Second Circuit recently recognized the middle ground between these two poles, holding that a prison official does not act with deliberate indifference unless he knows of and disregards “ ‘excessive risk’ to inmate health or safety; the official must both be aware of facts from which the"
},
{
"docid": "22420436",
"title": "",
"text": "U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). An Eighth Amendment claim arising out of inadequate medical care requires a demonstration of “deliberate indifference to [a prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The standard for deliberate indifference includes a subjective component and an objective component. See Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) (per curiam). Subjectively, the official charged with deliberate indifference must act with a “sufficiently culpable state of mind.” See Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). That is, the official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective component requires that “the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (internal quotation marks omitted). Medical malpractice does not rise to the level of a constitutional violation unless the malpractice involves culpable recklessness—“an act or a failure to act by [a] prison doctor that evinces a conscious disregard of a substantial risk of serious harm.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998) (internal quotation marks omitted). In this connection, the Supreme Court has held that “a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. It has long been the rule that a prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment. See id. at 106-07, 97 S.Ct. 285. It is well-established that mere disagreement over the proper treatment does"
},
{
"docid": "3151412",
"title": "",
"text": "ear. Two years later, audiologist David Lewis performed another audiogram on Zent-myer and also found that Zentmyer reported no hearing in his right ear. However, suspicious of Zentmyer’s responses, Lewis conducted a second hearing test which “did not reveal that [Zentmyer’s hearing] is as bad as Mr. Zentmyer is claiming.” On April 22, 1997, Zentmyer sued the defendants in district court under 42 U.S.C. § 1983 claiming that he was denied adequate medical care in violation of his Eighth and Fourteenth Amendment rights. Zentmyer argued that as a result of the defendants’ deliberate indifference to administering his medication properly, the medication was rendered “useless” and he sustained a “totally dead” right ear. The district court immediately dismissed Zentmyer’s Eighth -Amendment claims, and on December 22, 1998, granted the defendants’ motion for summary judgment on Zentmyer’s Fourteenth Amendment claims. II. ANALYSIS The Eighth Amendment proscription on the infliction of cruel and unusual punishment requires that the government “provide humane conditions of confinement” and “ensure, that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Among other things, these principles prohibit jail guards from “intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). However, liability results only when the defendant exhibits “deliberate indifference to serious medical needs.” Id. at 104, 97 S.Ct. 285; see also Henderson v. Sheahan, 196 F.3d 839, 844(7th Cir.1999). In Farmer, the Supreme Court explained that an inmate must satisfy a two-prong test to establish an Eighth Amendment claim: (1) the deprivation alleged must be objectively serious; (2) the prison official must have exhibited deliberate indifference to the inmate’s health or safety. Farmer, 511 U.S. at 834, 114 S.Ct. 1970. Although the Eighth Amendment does not extend to pretrial detainees like Zentmyer, the Due Process Clause of the Fourteenth Amendment protects pretrial detainees under the same standard as the Eighth Amendment. See Henderson, 196 F.3d at 844 n. 2; Payne v. Churchich, 161"
},
{
"docid": "5016164",
"title": "",
"text": "was abridged. Accordingly, the plaintiff is unable to meet the stringent standard set forth in Sandin. b. The cruel and unusual punishment claim The gravamen of Mandala’s claims is that he was denied adequate medical care in violation of the Eighth Amendment which prohibits cruel and unusual punishment. The Eighth Amendment requires that prison officials provide “humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must ‘take reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, — U.S. -, -, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994), quoting, Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200-01, 82 L.Ed.2d 393 (1984). In the seminal case of Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Supreme Court recognized the standard for Eighth Amendment claims based on a failure to provide medical care, requiring that the plaintiff demonstrate a “deliberate indifference to serious, medical needs.” The Court elaborated on this standard, stating, that deliberate indifference to serious medical needs constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their presence to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Id. at 104-05, 97 S.Ct. at 291-92 (internal quotations and citations omitted). The Estelle Court recognized however that “every claim by a prisoner that he has not received adequate medical treatment [does not] state[] a violation of the Eighth Amendment.” Id. at 105, 97 S.Ct. at 291. [I]n the medical context, ... a complaint that physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege that acts or omissions sufficiently harmful to evidence deliberate indifference to serious"
},
{
"docid": "22967103",
"title": "",
"text": "“only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm.” Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir.2001) (quotation omitted). The substantial harm requirement “may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.2001). The subjective prong of the deliberate indifference test requires the plaintiff to present evidence of the prison official’s culpable state of mind. See Estelle, 429 U.S. at 106, 97 S.Ct. 285. The subjective component is satisfied if the official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970. A prison medical professional who serves “solely ... as a gatekeeper for other medical personnel capable of treating the condition” may be held liable under the deliberate indifference standard if she “delays or refuses to fulfill that gatekeeper role.” Sealock, 218 F.3d at 1211; see also Estelle, 429 U.S. at 104-105, 97 S.Ct. 285 (deliberate indifference is manifested by prison personnel “in intentionally denying or delaying access to medical care”). The deliberate indifference standard lies “somewhere between the poles of negligence at one end and purpose or knowledge at the other.” Farmer, 511 U.S. at 836, 114 S.Ct. 1970. The Supreme Court in Farmer analogized this standard to criminal recklessness, which makes a person hable when she consciously disregards a substantial risk of serious harm. Id. at 836-38, 114 S.Ct. 1970. Thus, “[deliberate indifference does not require a finding of express intent to harm.” Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir.1996) (citation omitted). An inmate “need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (emphasis added). An"
},
{
"docid": "22969755",
"title": "",
"text": "testimony, must be based on more than mere speculation, conjecture, or surmise.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir.2004). “Unsubstantiated allegations carry no probative weight in summary judgment proceedings.” Phillips v. Calhoun, 956 F.2d 949, 951 n. 3 (10th Cir.1992); accord Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir.2004) (noting that “unsupported conclusory allegations ... do not create a genuine issue of fact”) (internal citation and quotation marks omitted). III. Discussion A. Legal Framework The Supreme Court first recognized claims for deliberate indifference to a prisoner’s medical needs in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Court held that prison officials violate the Eighth Amendment’s ban on cruel and unusual punishment if their “deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” Id. at 104, 97 S.Ct. 285 (internal citation and quotation marks omitted). To prevail on a claim under 42 U.S.C. § 1983, however, “inadvertent failure to provide adequate medical care” is not enough, nor does “a complaint that a physician has been negligent in diagnosing or treating a medical condition ... state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 105, 106, 97 S.Ct. 285. Rather, “a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Id. at 106, 97 S.Ct. 285. The Supreme Court clarified the standards applicable to deliberate indifference claims in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). In Farmer, the Court set forth a two-pronged inquiry, comprised of an objective and subjective component. Under the objective inquiry, the alleged deprivation must be “sufficiently serious” to constitute a deprivation of constitutional dimension. Id. at 834, 114 S.Ct. 1970. In addition, under the subjective inquiry, the prison official must have a “sufficiently culpable state of mind.” Id. In describing the subjective component, the Court made clear a prison official cannot be liable “unless the official knows of and disregards an excessive risk to inmate health or safety; the"
},
{
"docid": "22410188",
"title": "",
"text": "medical treatment to those whom it has incarcerated. The Court articulated the standard to be used: In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. Id. at 106, 97 S.Ct. 285. Therefore, to succeed under these principles, plaintiffs must demonstrate (1) that the defendants were deliberately indifferent to their medical needs and (2) that those needs were serious. See id. The defendants agree that insulin-dependent diabetes mellitus is a serious illness, and therefore only the former question is in issue here. It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute “deliberate indifference.” As the Estelle Court noted: “[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute ‘an unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’” Id. at 105, 97 S.Ct. 285; see also Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir.1993) (“[T]he law is clear that simple medical malpractice is insufficient to present a constitutional violation.”); White v. Napoleon, 897 F.2d 103, 110 (3d Cir.1990) (“[Cjertainly no claim is stated when a doctor disagrees with the professional judgment of another doctor. There may, for example, be several acceptable ways'to treat an illness.”)(emphasis omitted). “Deliberate indifference,” therefore, requires “obduracy and wantonness,” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), which has been likened to conduct that includes recklessness or a conscious disregard of a serious risk. See Farmer v. Brennan, 511 U.S. 825, 842, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (stating that “it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm”). We have found “deliberate indifference” in a variety of circumstances, including where the prison official (1) knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2)"
},
{
"docid": "17816294",
"title": "",
"text": "all evidentiary conflicts in favor of the prevailing party.. See id. The verdict should be overturned only where no reasonable juror could have found in favor of the prevailing party.. See id. The Eighth Amendment scrutinizes the conditions under which prison inmates are confined in order to prevent the inhumane treatment of inmates. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (Farmer ). The government is obligated “to provide medical care for those whom it is punishing by incarceration. An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (Estelle). For this reason, the Eighth Amendment proscribes deliberate indifference to the serious medical needs of prisoners. See id. at 104, 97 S.Ct. 285 (citations omitted). Deliberate indifference to the serious medical needs of inmates may be “manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05, 97 S.Ct. 285. In order to find a prison official liable for a deliberate indifference claim, the inmate must prove that (1) a substantial risk of serious harm to the inmate existed and (2) the prison official knew of and disregarded that risk. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. We may assume without elaboration that a stroke is a serious medical harm, the risk of which was substantial in plaintiffs case. Viewing the evidence in the light most favorable to the verdict as required by Van Steenburgh, 171 F.3d at 1158, a reasonable juror could infer that defendants knew of plaintiffs hypertension and that they ignored plaintiffs requests concerning his hypertension. However, a reasonable juror cannot infer from the evidence whether plaintiffs hypertension caused his stroke or, consequently, whether plaintiffs lapse in hypertension medication had anything to do with his stroke. Plaintiff did not offer any evidence that his lapse"
},
{
"docid": "22801561",
"title": "",
"text": "97 S.Ct. 285). In Estelle, the Supreme Court concluded: [Djeliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. Estelle, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (citation omitted, footnotes omitted). To state an Eighth Amendment claim, a plaintiff must allege a deprivation of medical care sufficiently serious to show that “the state has abdicated a constitutionally-required responsibility to attend to his medical needs,” Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir.1983), and that a prison official knew of and disregarded “an excessive risk to inmate health or safety.” Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.1999) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)) “For an official to act with deliberate indifference, ‘the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’ ” Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.1998) (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). “Under exceptional circumstances, a prison official’s knowledge of a substantial risk of harm may be inferred by the obviousness of the substantial risk.” Reeves v. Collins, 27 F.3d 174, 176 (5th Cir.1994) (citing Farmer, 511 U.S. at 842 & n. 8, 114 S.Ct. 1970). In this case, Harris alleges that the repair of his broken jaw had failed before he even left the surgery clinic. He alleges that Dr. Hegmann and nurses Boyd and James ignored his urgent and repeated requests for immediate medical treatment for his broken jaw and his complaints of excruciating pain. Harris alleges facts demonstrating that all three"
},
{
"docid": "22801560",
"title": "",
"text": "constitutional violation for purposes of a § 1983 claim when that conduct amounts to deliberate indifference to [the prisoner’s] serious medical needs, constituting] the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir.1999) (internal quotation marks omitted) (alterations in original) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Under the “deliberate indifference” standard, a prison official, is not liable for the denial of medical treatment “unless the official knows of and disregards an excessive risk to inmate health or safety”. Stewart, 174 F.3d at 534 (citing Estelle, 429 U.S. at 104, 97 S.Ct. 285). While malpractice and negligent treatment do not rise to the level of a constitutional tort, see Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.1993), a claim of “unnecessary and wanton infliction of pain repugnant to the conscience of mankind,” can state a claim of a constitutional tort. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997) (citing Estelle, 429 U.S. at 105-106, 97 S.Ct. 285). In Estelle, the Supreme Court concluded: [Djeliberate indifference to serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. Estelle, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (citation omitted, footnotes omitted). To state an Eighth Amendment claim, a plaintiff must allege a deprivation of medical care sufficiently serious to show that “the state has abdicated a constitutionally-required responsibility to attend to his medical needs,” Bienvenu v. Beauregard Parish Police Jury, 705 F.2d 1457, 1460 (5th Cir.1983), and that a prison official knew of and disregarded “an excessive risk to inmate health or safety.” Stewart v. Murphy, 174 F.3d 530, 533 (5th"
},
{
"docid": "2877601",
"title": "",
"text": "that verbal threats without injuries are not actionable under § 1983 confirms the implausibility of plaintiff’s new claim.”), aff’d 205 F.3d 1324 (2d Cir.2000). . (Dkt. No. 39, Part 45, at 16-19 [Defs.’ Memo, of Law].) . Farmer, 511 U.S. at 835, 114 S.Ct. 1970 (‘‘[D]eliberate indifference [for purposes of an Eighth Amendment claim] describes a state of mind more blameworthy than negligence.”); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (\"[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Murphy v. Grabo, 94-CV-1684, 1998 WL 166840, at *4 (N.D.N.Y. Apr. 9, 1998) (Pooler, J.) (\"Deliberate indifference, whether evidenced by [prison] medical staff or by [prison] officials who allegedly disregard the instructions of [prison] medical staff, requires more than negligence.... Disagreement with prescribed treatment does not rise to the level of a constitutional claim.... Additionally, negligence by physicians, even amounting to malpractice, does not become a constitutional violation merely because the plaintiff is an inmate.... Thus, claims of malpractice or disagreement with treatment are not actionable under section 1983.”) [citations omitted]. . Farmer, 511 U.S. at 827, 114 S.Ct. 1970 (\"[S]ubjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for \"deliberate indifference” under the Eighth Amendment.”); Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) (\"The required state of mind [for a deliberate indifference claim under the Eighth Amendment], equivalent to criminal recklessness, is that the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists; and he must also draw the inference.\") [internal quotation marks and citations omitted]; Hathaway v. Coughlin, 99 F.3d 550,"
}
]
|
671208 | and this Court have recognized, “[t]he physical appearance of a defendant while in the presence of the jury may adversely affect the presumption of innocence.” Chavez, 310 F.3d at 808 (citing Estelle, 425 U.S. at 504 (noting that a defendant’s appearance before the jury may “affect a juror’s judgment” because prison clothing serves as a “constant reminder of the accused’s condition”)). Nonetheless, courts “have an obligation ‘to protect the court and its processes, and to attend to the safety and security of those in the courtroom.’ ” Id. at 808-809 (citing United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988)). Accordingly, the Supreme Court has upheld the binding and gagging of an “obstreperous defendant” when necessary to maintain courtroom order. REDACTED and this Court has likewise held that a defendant may be shackled and/or handcuffed to prevent escape, to preserve the dignity of the trial, and to secure the safety of its participants.” Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.1994) (upholding use of shackles in presence of jury); Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir.1994) (upholding use of handcuffs in presence of jury). “The use of such restraints, however, is subject to close judicial scrutiny.” Chavez, 310 F.3d at 808 (citing Holbrook v. Flynn, 475 U.S. 560, 568,106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)). Moreover, to be permissible, the use of restraints “must further a legitimate interest of the state.” Id.; see, | [
{
"docid": "22539259",
"title": "",
"text": "in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstrep erous defendant like Allen: (1) bind and gag him, thereby-keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly. I Trying a defendant for a crime while he sits bound and gagged before the judge and jury would to an extent comply with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at the trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a- last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint. It is in part because of these inherent disadvantages and limitations in this method of dealing with disorderly defendants that we decline to hold with the Court of Appeals that a defendant cannot under any possible circumstances be deprived of his right to be present at trial. However, in some situations which we need not attempt to foresee, binding and gagging might possibly be the fairest and most reasonable way to handle a defendant who acts as Allen did here. II In a footnote the Court of Appeals suggested the possible availability of contempt of court as a remedy to make Allen behave in his robbery trial, and it is true that citing or threatening to cite a contumacious defendant for criminal contempt might in itself be sufficient to make a defendant stop interrupting a trial. If so, the"
}
]
| [
{
"docid": "3526866",
"title": "",
"text": "v. United States, 211 F.3d 429, 436 (7th Cir.2000) (holding that a defendant may be shackled in the presence of the jury in cases of “extreme need,” when “necessary to maintain the security of the courtroom”). Defendants thus may be handcuffed to prevent escape and to prevent injury to others in the courtroom. Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir.1994); Hernandez v. Beto, 443 F.2d 634, 636 (5th Cir.1971); see also United States v. Collins, 109 F.3d 1413, 1417-18 (9th Cir.1997) (upholding use of shackles in case where defendant poses legitimate flight risk). The use of such restraints, however, is subject to close judicial scrutiny. Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). In addition, the restraints must further \"a legitimate interest of the state. Id. at 571-72, 106 S.Ct. 1340 (upholding presence of four uniformed state troopers in courtroom during defendants’ trial when deployment was “intimately related to the State’s legitimate interest in maintaining custody during the proceedings”); Estelle, 425 U.S. at 505, 96 S.Ct. 1691 (concluding prison clothing is prejudicial when it furthers no “essential state policy”). In this case, the trial court specifically determined before trial that Chavez was a flight risk and that the use of the stun belt was necessary. Based on the evidence presented at the separate hearing establishing that Chavez posed a legitimate risk of flight, we believe that it was within the trial court’s discretion to visibly restrain Chavez. Marquez, 11 F.3d at 1244 (noting state trial judge has discretion to order restraints when necessary). Therefore, because the trial court could have permitted the use of visible restraints at Chavez’s trial, we do not believe that the jury’s momentary glimpse of the effects of the stun belt denied Chavez the presumption of innocence. Moreover, we note that the trial judge in this case took steps to mitigate any prejudicial influence on the jury. See, e.g., United States v. Pina, 844 F.2d 1, 8 (1st Cir.1988) (finding jurors’ exposure to defendant while in handcuffs was not prejudicial after judge Questioned jurors and they insisted they"
},
{
"docid": "13109969",
"title": "",
"text": "in ordering him handcuffed and shackled during trial [when] there is a danger of escape or injury to the jury, counsel, or other trial participants.” Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir.1994). Most importantly, this inquiry “does not trigger a type of ‘least means’ analysis. That in retrospect some lesser restraint might have sufficed is not determinative.” Marquez, 11 F.3d at 1244. Bagwell has failed to make a substantial showing that the use of leg restraints violated his constitutional due process rights. The state trial court determined that several factors, including Bagwell’s overt threats against law enforcement officers during his pre-trial detention, warranted shackling. Bagwell did not rebut the evidence of his threats. Moreover, the trial judge had Bagwell wear the restraints underneath his clothing and took significant measures to ensure that the restraints would not be visible to the jury. No reasonable jurist could conclude that the state court’s rejection of Bagwell’s claim constituted an unreasonable application of federal law. What’s more, Bagwell’s entire rejoinder consists of a hearsay affidavit from his investigator. In the affidavit, the investigator asserts that a juror correctly deduced that Bagwell was restrained, which led the juror to believe Bagwell was dangerous. The state court rejected the proffer because Bagwell failed to offer an affidavit directly from the juror. However, even if Bagwell had secured direct testimony, such evidence does not rise to a constitutional dimension; under proper circumstances the trial court could have placed Bagwell in visible restraints and remained within constitutional bounds. See Allen, 397 U.S. at 343-44, 90 S.Ct. at 1061 (permitting “obstreperous” defendants to be “bound and gagged” in the jury’s presence under certain circumstances). One juror’s supposition concerning the use of leg restraints did not violate Bagwell’s constitutional right to the presumption of innocence. See Chavez, 310 F.3d at 809-10 (inadvertent activation of stun-belt was not a constitutional violation). Reasonable jurists could not debate whether the state courts erred in concluding that the use of leg restraints, under these facts, violated Bagwell’s constitutional rights. B. Right to Testify Bagwell next argues that his trial counsel unconstitutionally coerced"
},
{
"docid": "14732938",
"title": "",
"text": "restraints during involuntary commitment proceedings that were visible to the jury were inherently prejudicial). In Duckett v. Godinez, 67 F.3d 734, 747-49 (9th Cir.1995), we followed procedures similar to those we followed here. We recognized that visible restraints, in that case during a jury sentencing hearing, would likely have prejudiced the defendant, but remanded for an evidentiary hearing on prejudice. After remand, we affirmed the district court’s finding that the restraints were not visible and the error harmless. See Duckett v. Godinez, 109 F.3d 533 (9th Cir.1997). Here, because the district court found the jury did see the shackles, and because this ease involves violent crimes and the evidence was disputed, we believe that the trial court’s error substantially influenced the jury’s verdict. In cases like this, where the unjustified shackles were not obtrusive, but were visible and actually seen by some of the jurors, the Eleventh Circuit has also held that habeas relief was warranted. See Elledge v. Dugger, 823 F.2d 1439, 1450-52 (11th Cir.1987). However, the District of Columbia Circuit, though extremely troubled by the trial court’s decision to shackle the defendants without first trying lesser measures, found unconstitutional shackling harmless in a case where there was overwhelming evidence of the defendants’ guilt. Wilson v. United States, 344 F.2d 166, 166-67 (D.C.Cir.1964) (per curiam). More recently, the Fifth Circuit followed suit in Wilkerson v. Whitley, 16 F.3d 64, 67-68 (5th Cir.1994), vacated by 16 F.3d at 68, reinstated in relevant part, 28 F.3d 498, 509 (5th Cir.1994) (en banc). Wilkerson held that it was harmless error for the trial court to try a convicted felon and inmate in unconstitutional shackles and handcuffs because the jury could have assumed that all inmates were tried in shackles and handcuffs and because of the eyewitness evidence against the defendant. We find this reasoning difficult to reconcile with the Supreme Court’s reasoning in Estelle and Holbrook that prison attire is a constant reminder of the accused’s status that would impermissibly influence the jury. See Estelle, 425 U.S. at 504-05, 96 S.Ct. 1691; Holbrook, 475 U.S. at 568-69, 106 S.Ct. 1340. Due process"
},
{
"docid": "14313217",
"title": "",
"text": "established federal law. Accordingly, no reason exists to issue a COA on this issue. C. Shackled and Handcuffed in the Jury’s Presence Bigby next contends that the trial court erred by shackling him during the trial and allowing the jury to see him handcuffed. “While a defendant is entitled to the physical indicia of innocence, a court is justified in ordering him handcuffed and shackled during trial [when] there is danger of escape or injury to the jury, counsel, or other trial participants.” Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir.1994); see also Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986)(stating that shackling is permissible only when “justified by an essential state interest specific to each trial”); Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970)(opining that trial judges “must be given sufficient discretion” to ensure the “dignity, order, and decorum ... of all court proceedings” and concluding that binding and gagging an obstreperous, defendant is constitutionally acceptable in some situations). After Big-by. assaulted Judge Leonard, it was incontrovertible that he posed a real danger to all assembled in the trial court. Judge Leonard, therefore, was not beyond the bounds of his ample discretion to decide whether a defendant should be restrained when he ordered Bigby shackled and handcuffed. See Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir.1997)(“The decision to restrain an obstreperous defendant with visible restraints lies within the sound discretion of the trial judge.” (citing Allen, 397 U.S. at 343-44, 90 S.Ct. 1057)). Accordingly, a COA should not issue on this point. D. Juror Challenges Bigby next attempts to secure a COA by arguing that he was denied due process when the trial court altered the sequence established in Article 35.13 of the Texas Code of Criminal Procedure for challenging jurors in a capital case. “Article 35.13 states ... that the veniremen shall ‘be passed for acceptance or challenge first to the state and then to the defendant.’ ” Bigby, 892 S.W.2d at 879. Upon both parties’ completion of voir dire, the state"
},
{
"docid": "3526865",
"title": "",
"text": "501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The physical appearance of a defendant while in the presence of the jury may adversely affect the presumption of innocence. Id. at 504, 96 S.Ct. 1691 (noting that defendant’s appearance before the jury may “affect a juror’s judgment” because prison clothing serves as a “constant reminder of the accused’s condition”). Courts do, however, have an obligation to “protect the court and its processes, and to attend to the safety and security of those in the courtroom.” United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988) (upholding use of plainclothes deputies sitting next to defendant at trial). Thus, the Supreme Court has held that binding and gagging an “obstreperous defendant” is permissible when necessary to maintain courtroom order. Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In addition, a defendant may be shackled “to preserve the dignity of the trial and to secure the safety of its participants.” Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.1994); see also Fountain v. United States, 211 F.3d 429, 436 (7th Cir.2000) (holding that a defendant may be shackled in the presence of the jury in cases of “extreme need,” when “necessary to maintain the security of the courtroom”). Defendants thus may be handcuffed to prevent escape and to prevent injury to others in the courtroom. Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir.1994); Hernandez v. Beto, 443 F.2d 634, 636 (5th Cir.1971); see also United States v. Collins, 109 F.3d 1413, 1417-18 (9th Cir.1997) (upholding use of shackles in case where defendant poses legitimate flight risk). The use of such restraints, however, is subject to close judicial scrutiny. Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). In addition, the restraints must further \"a legitimate interest of the state. Id. at 571-72, 106 S.Ct. 1340 (upholding presence of four uniformed state troopers in courtroom during defendants’ trial when deployment was “intimately related to the State’s legitimate interest in maintaining custody during the proceedings”); Estelle, 425 U.S. at 505, 96 S.Ct. 1691"
},
{
"docid": "3526864",
"title": "",
"text": "presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2); Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is contrary to clearly established federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. An application of federal law is unreasonable if “the state court identifies the correct governing legal principle from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Ill Chavez argues that the inadvertent activation of his stun belt in the presence of the jury denied him the presumption of innocence. “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The physical appearance of a defendant while in the presence of the jury may adversely affect the presumption of innocence. Id. at 504, 96 S.Ct. 1691 (noting that defendant’s appearance before the jury may “affect a juror’s judgment” because prison clothing serves as a “constant reminder of the accused’s condition”). Courts do, however, have an obligation to “protect the court and its processes, and to attend to the safety and security of those in the courtroom.” United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988) (upholding use of plainclothes deputies sitting next to defendant at trial). Thus, the Supreme Court has held that binding and gagging an “obstreperous defendant” is permissible when necessary to maintain courtroom order. Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In addition, a defendant may be shackled “to preserve the dignity of the trial and to secure the safety of its participants.” Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.1994); see also Fountain"
},
{
"docid": "14732939",
"title": "",
"text": "by the trial court’s decision to shackle the defendants without first trying lesser measures, found unconstitutional shackling harmless in a case where there was overwhelming evidence of the defendants’ guilt. Wilson v. United States, 344 F.2d 166, 166-67 (D.C.Cir.1964) (per curiam). More recently, the Fifth Circuit followed suit in Wilkerson v. Whitley, 16 F.3d 64, 67-68 (5th Cir.1994), vacated by 16 F.3d at 68, reinstated in relevant part, 28 F.3d 498, 509 (5th Cir.1994) (en banc). Wilkerson held that it was harmless error for the trial court to try a convicted felon and inmate in unconstitutional shackles and handcuffs because the jury could have assumed that all inmates were tried in shackles and handcuffs and because of the eyewitness evidence against the defendant. We find this reasoning difficult to reconcile with the Supreme Court’s reasoning in Estelle and Holbrook that prison attire is a constant reminder of the accused’s status that would impermissibly influence the jury. See Estelle, 425 U.S. at 504-05, 96 S.Ct. 1691; Holbrook, 475 U.S. at 568-69, 106 S.Ct. 1340. Due process was denied when the trial court ordered Rhoden shackled during his trial without a proper determination of the need for shackles. See Holbrook, 475 U.S. at 568-69, 106 S.Ct. 1340. In Rhoden I, we remanded for the district court to determine what the jury saw. Rhoden I, 10 F.3d at 1460. The district court found that several of the jurors actually saw the shackles during the trial. Indeed, the jurors remembered the shackles even though the hearing was six years after the trial. At least two jurors remember other jurors making comments to them about the shackles. Moreover, evidence indicates that the shackles caused Rhoden physical and emotional pain during his trial. Thus, there is a strong likelihood of prejudice here. See Holbrook, 475 U.S. at 568, 106 S.Ct. 1340; Spain, 883 F.2d. at 721; Elledge, 823 F.2d at 1451. Furthermore, Rhoden was charged with violent crimes and the basic issue at his trial concerned whether there was consent or whether Rhoden used force or fear to overcome his accuser’s will. The evidence on this"
},
{
"docid": "14732934",
"title": "",
"text": "could not determine whether the shackling warranted habeas relief without knowing what the jurors saw. See id. at 1462. Therefore, we remanded the petition for an evi-dentiary hearing “to determine what the jurors saw and whether it was so inherently prejudicial] that it threatened the fairness of the trial.” See id. A magistrate judge held an evidentiary hearing in which testimony was taken from nine jurors, Rhoden’s state court-appointed investigator, the deputy district attorney, and a law student with the Post-Conviction Justice Project. Five jurors testified that they saw the restraints at some point during the proceedings, and that the issue of shackling was not mentioned during deliberations. The magistrate judge concluded that the shackles were visible to the jurors as they sat in the jury box, but made little actual impression on them. Therefore, the magistrate concluded that Rhoden was not inherently prejudiced by the trial court’s requirement that he remain shackled in the presence of the jury. The district court adopted his report. This timely appeal followed. DISCUSSION The leading Supreme Court case on shackling during trials is Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In Allen, the Court confronted the dilemma of a contumacious defendant who nevertheless had a Sixth Amendment right to be present at his own trial. Considering the alternative of binding and gagging the defendant in order to conduct the trial, the Court wrote that “no person should be tried while shackled and gagged except as a last resort” because of the distinct possibility of “a significant effect on the jury’s feelings about the defendant.” Id. at 344, 90 S.Ct. 1057. Likewise, in Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Court noted that where a defendant is forced to wear prison clothes when appearing before the jury, “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.” As the Supreme Court developed in Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), shackling, like prison clothes, is"
},
{
"docid": "23538778",
"title": "",
"text": "if it feels a defendant can be securely confined, as' evidenced by the shackles. Seeing that the defendant can be properly restrained, it is not necessary to give the death sentence in order to protect against future harm. On the other hand, a jury might view the shackles as first hand evidence of future dangerousness and uncontrollable behavior which if unmanageable in the courtroom may also be unmanageable in prison, leaving death as a proper decision. With no definitive answer as to how the shackling at sentencing would affect the jury, it might be appropriate to consider the issue on a case-by-case basis and make a judicial evaluation as to the effect on the jury in each particular case. Much as we might be inclined to follow this path, it would not seem to be available if controlling precedents are faithfully followed. The problem is that the Supreme Court has not bottomed the prohibition against shackling on presumption of innocence alone. When a broader concern is brought into play, there seems to be no reason to restrict the principles to the guilt-innocence phase of the trial. The language of the Supreme Court and this court in opinions regarding shackling, gives full consideration to that broader concern. The Supreme Court has characterized shackling as an “inherently prejudicial practice.” Holbrook v. Flynn, 475 U.S. 560,-, 106 S.Ct. 1340, 1845, 89 L.Ed.2d 525, 534 (1986). “Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). When shackling occurs, it must be subjected to “close judicial scrutiny,” Estelle v. Williams, 425 U.S. 501, 503-04, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126 (1976), to determine if there was an “essential state interest” furthered, Holbrook, 475 U.S. at —, 106 S.Ct. at 1345, 89 L.Ed.2d at 534, by compelling"
},
{
"docid": "19816584",
"title": "",
"text": "123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). This includes the holdings of Supreme Court decisions as well as “legal principles derived from th[ose] holdings.” Samuel v. Frank, 525 F.3d 566, 569 (7th Cir.2008). Mr. Lopez contends that three Supreme Court cases, taken together, establish the principle that a defendant has a “constitu tional right to appear in the garb of innocence before the jury deciding his case.” Appellant’s Br. 17 (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)). In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Supreme Court held that the Constitution might permit, under some circumstances, a trial court to order that an obstreperous defendant be bound and gagged in the courtroom during his trial. The Court expressed reservations about this method of control; it acknowledged that “even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort.” Id. at 344, 90 S.Ct. 1057. The Court also recognized the possibility “that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.” Id. Thus, although the Court refused to rule out the possibility that binding and gagging might be the most reasonable way to deal with a disruptive defendant under certain circumstances, it made clear that such a measure would be appropriate only in the most extreme of cases. In Estelle v. Williams, 425 U.S. 501, 506, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Court held that requiring a defendant to wear “identifiable prison clothes” violated his due process right to a fair trial. The Court wrote: “The constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is"
},
{
"docid": "19816585",
"title": "",
"text": "see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort.” Id. at 344, 90 S.Ct. 1057. The Court also recognized the possibility “that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.” Id. Thus, although the Court refused to rule out the possibility that binding and gagging might be the most reasonable way to deal with a disruptive defendant under certain circumstances, it made clear that such a measure would be appropriate only in the most extreme of cases. In Estelle v. Williams, 425 U.S. 501, 506, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Court held that requiring a defendant to wear “identifiable prison clothes” violated his due process right to a fair trial. The Court wrote: “The constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play.” Id. at 504-05, 96 S.Ct. 1691. The Court also noted that, unlike the physical restraints it approved in Allen, requiring the defendant to don prison garb furthers no essential state policy. In Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Court held that the defendant’s right to due process was not violated by the presence of four uniformed state troopers in the first row of the spectator section of the courtroom. Although the Court “d[id] not minimize the threat that a roomful of uniformed and armed policemen might pose to a defendant’s chance of receiving a fair trial,” it “simply [could not] find an unacceptable risk of prejudice in the spectacle of four such officers quietly sitting in the first row of a courtroom’s spectator section.” Id. Mr. Lopez reads Allen and Williams as establishing that it is inherently prejudicial to require a defendant to stand trial in shackles or prison clothing. He also points to the Court’s suggestion in Holbrook that"
},
{
"docid": "14313216",
"title": "",
"text": "attend adequately his mental illness. The judge merely informed Big-by’s counsel that he would not allow the civil petitions into evidence unless Kehler denied the suit. Bigby correctly notes that the Sixth Amendment guarantee of a criminal defendant’s right to confront witnesses against him includes the right to cross-examination. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). But this right is subject to the wide latitude, of trial judges to impose reasonable limits. See id. (stating that the right to cross-examination is “[sjubject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation”); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). As such, the Confrontation Clause does not guarantee defendants cross-examination to whatever extent they desire. Van Arsdall, 475 U.S. at 678, 106 S.Ct. 1431. Bigby fails to demonstrate that his efforts to impeach Kehler were unconstitutionally circumscribed or that the State’s rejection of his impeachment complaints constitute an unreasonable application of clearly established federal law. Accordingly, no reason exists to issue a COA on this issue. C. Shackled and Handcuffed in the Jury’s Presence Bigby next contends that the trial court erred by shackling him during the trial and allowing the jury to see him handcuffed. “While a defendant is entitled to the physical indicia of innocence, a court is justified in ordering him handcuffed and shackled during trial [when] there is danger of escape or injury to the jury, counsel, or other trial participants.” Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir.1994); see also Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1346, 89 L.Ed.2d 525 (1986)(stating that shackling is permissible only when “justified by an essential state interest specific to each trial”); Illinois v. Allen, 397 U.S. 337, 343-44, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970)(opining that trial judges “must be given sufficient discretion” to ensure the “dignity, order, and decorum ... of all court proceedings” and concluding that binding and gagging an obstreperous, defendant is constitutionally acceptable in some situations)."
},
{
"docid": "13109968",
"title": "",
"text": "claim is without merit. “We begin with the threshold premise than an accused is presumed innocent and, as such, is entitled to all of the trappings of innocence during trial.” United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988) (citations omitted). Thus, the shackling of a defendant during trial, a practice that potentially threatens the defendant’s presumption of innocence, bears close scrutiny. Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986) (citing Estelle v. Williams, 425 U.S. 501, 503-04, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126 (1976)); Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.1994) (“Restraint at trial may carry a message that a defendant continues to be dangerous.”). These important due process concerns “must be balanced against the court’s obligation to protect the court and its processes, and to attend to the safety and security of those in the courtroom.” Nicholson, 846 F.2d at 279 (citations omitted); Marquez, 11 F.3d at 1244. “While a defendant is entitled to the physical indicia of innocence, a court is justified in ordering him handcuffed and shackled during trial [when] there is a danger of escape or injury to the jury, counsel, or other trial participants.” Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir.1994). Most importantly, this inquiry “does not trigger a type of ‘least means’ analysis. That in retrospect some lesser restraint might have sufficed is not determinative.” Marquez, 11 F.3d at 1244. Bagwell has failed to make a substantial showing that the use of leg restraints violated his constitutional due process rights. The state trial court determined that several factors, including Bagwell’s overt threats against law enforcement officers during his pre-trial detention, warranted shackling. Bagwell did not rebut the evidence of his threats. Moreover, the trial judge had Bagwell wear the restraints underneath his clothing and took significant measures to ensure that the restraints would not be visible to the jury. No reasonable jurist could conclude that the state court’s rejection of Bagwell’s claim constituted an unreasonable application of federal law. What’s more, Bagwell’s entire rejoinder consists of a hearsay affidavit from his"
},
{
"docid": "14732935",
"title": "",
"text": "on shackling during trials is Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In Allen, the Court confronted the dilemma of a contumacious defendant who nevertheless had a Sixth Amendment right to be present at his own trial. Considering the alternative of binding and gagging the defendant in order to conduct the trial, the Court wrote that “no person should be tried while shackled and gagged except as a last resort” because of the distinct possibility of “a significant effect on the jury’s feelings about the defendant.” Id. at 344, 90 S.Ct. 1057. Likewise, in Estelle v. Williams, 425 U.S. 501, 504-05, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Court noted that where a defendant is forced to wear prison clothes when appearing before the jury, “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.” As the Supreme Court developed in Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), shackling, like prison clothes, is an indication of the need to separate a defendant from the community at large, creating an inherent danger that the jury may form the impression that the defendant is dangerous or untrustworthy. Therefore, “[i]n the presence of the jury, [the defendant] is ordinarily entitled to be relieved of handcuffs, or other unusual restraints, so as not to mark him as an obviously bad man or to suggest that the fact of his guilt is a foregone conclusion.” Stewart v. Corbin, 850 F.2d 492, 497 (9th Cir.1988) (internal quotations omitted) (citation omitted). Because visible shackling during trial is so likely to cause a defendant prejudice, it is permitted only when justified by an essential state interest specific to each trial. Holbrook, 475 U.S. at 568-69, 106 S.Ct. 1340. Therefore, due process requires the trial court to engage in an analysis of the security risks posed by the defendant and to consider less restrictive alternatives before permitting a defendant to be restrained. See Corbin, 850 F.2d at 497-98. A jury’s brief or inadvertent glimpse of a defendant"
},
{
"docid": "13109967",
"title": "",
"text": "court proceeding ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th Cir.2003) (en banc) (quoting 28 U.S.C. § 2254(d)(l)(2000)). However, “[w]e have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court’s application of [federal law] is erroneous or incorrect.” Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir.2002) (citation and quotation omitted). III. DISCUSSION On appeal, Bagwell asserts that he was denied due process and the presumption of innocence as a result of being shackled in the courtroom throughout the trial and that his trial counsel coerced him into waiving his right to testify in violation of his Fifth, Sixth and Fourteenth Amendment rights to a fair trial. A. Use Of Shackles During Trial Bagwell argues that the state trial court’s decision to shackle him was not the “least restrict alternative” and therefore constitutionally infirm. This claim is without merit. “We begin with the threshold premise than an accused is presumed innocent and, as such, is entitled to all of the trappings of innocence during trial.” United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988) (citations omitted). Thus, the shackling of a defendant during trial, a practice that potentially threatens the defendant’s presumption of innocence, bears close scrutiny. Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986) (citing Estelle v. Williams, 425 U.S. 501, 503-04, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126 (1976)); Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir.1994) (“Restraint at trial may carry a message that a defendant continues to be dangerous.”). These important due process concerns “must be balanced against the court’s obligation to protect the court and its processes, and to attend to the safety and security of those in the courtroom.” Nicholson, 846 F.2d at 279 (citations omitted); Marquez, 11 F.3d at 1244. “While a defendant is entitled to the physical indicia of innocence, a court is justified"
},
{
"docid": "22052082",
"title": "",
"text": "(2)”the court must pursue less restrictive alternatives before imposing physical restraints.” Jones v. Meyer, 899 F.2d 883, 885 (9th Cir.1990) (internal quotation marks omitted). Even in light of the limitations placed on district courts’ discretion, Appellants’ assertion of prejudice based on the shackling of nine of the eleven co-defendants is meritless. See Morgan, 24 F.3d at 51 (“The judge has wide discretion to decide whether a defendant who has a propensity for violence poses a security risk and warrants increased security measures.”); id. at 52 (concluding that the district court “protected Morgan’s presumption of innocence” by removing handcuffs, excusing the jury when he walked to the stand in leg-irons, and “took adequate precautions to minimize the effects of the shackles on the jury”). As Appellants concede in their opening brief, the district court ordered that the incarcerated defendants “would not be handcuffed,” that the shackles be “padded to avoid noise,” that “no one would stand when the jury entered the courtroom, to hide the fact that the defendants were restrained,” 2002 WL 32302660 at *152, and that “ankle chains were never to be shown to the jury.” Id. n. 75. The cases upon which they rely are either easily distinguished or do not support their arguments: two involved or discussed circumstances in which the shackles or handcuffs were apparent to the jury during the trial, and one supports the district court’s exercise of discretion in shackling the defendants here. See Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986) (discussing Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), in which the Court found “it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant,” but noting that even binding and gagging may nevertheless be warranted in the case of “a particularly obstreperous and disruptive defendant”) (emphasis added); see also Morgan, 24 F.3d at 51-52 (upholding shackling where district court took precautions to ensure that jury did not know defendant wore leg-irons). 3. Admission of gang-reiated tattoos Appellants’ last argument,"
},
{
"docid": "23538779",
"title": "",
"text": "to restrict the principles to the guilt-innocence phase of the trial. The language of the Supreme Court and this court in opinions regarding shackling, gives full consideration to that broader concern. The Supreme Court has characterized shackling as an “inherently prejudicial practice.” Holbrook v. Flynn, 475 U.S. 560,-, 106 S.Ct. 1340, 1845, 89 L.Ed.2d 525, 534 (1986). “Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). When shackling occurs, it must be subjected to “close judicial scrutiny,” Estelle v. Williams, 425 U.S. 501, 503-04, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126 (1976), to determine if there was an “essential state interest” furthered, Holbrook, 475 U.S. at —, 106 S.Ct. at 1345, 89 L.Ed.2d at 534, by compelling a defendant to wear shackles and whether less restrictive, less prejudicial methods of restraint were considered or could have been employed. Holbrook, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525; Woodard v. Perrin, 692 F.2d 220, 221 (1st Cir.1982); Hardin v. Estelle, 365 F.Supp. 39, 47 (U.D.Tex.), aff'd on other grounds, 484 F.2d 944 (5th Cir.1973). This Court has fully adopted the broad concerns reflected in the Supreme Court opinions. Allen, 728 F.2d at 1413-14; Zygadlo v. Wainwright, 720 F.2d 1221, 1223-24 (11th Cir.1983), cert. denied, 466 U.S. 941, 104 S.Ct. 1921, 80 L.Ed.2d 468 (1984). Putting the case in the same posture as it would be had the shackling occurred at the guilt-innocence stage of the trial, it is apparent that resentencing is required. Before selecting the jury to sentence El-ledge, the trial court suddenly announced that it had decided to shackle Elledge: I received information from Chief Miro yesterday, the Chief of Detention for the Broward Sheriff’s Office. He told me he received information from two of the Lieutenants — one in"
},
{
"docid": "1284265",
"title": "",
"text": "(2) the jurors were unable to observe the restraints. Gilmore v. Armontrout, 681 F.Supp. at 636; State v. Gilmore, 661 S.W.2d at 525. We agree that in these circumstances, the presumption of innocence afforded to Gilmore, as a criminal defendant, was not abridged, and that no constitutional violation occurred. The Supreme Court has characterized the use of shackles as “inherently prejudicial,” Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986), noting both that “the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant,” and that “the use of [shackles] is itself something of an affront to the very dignity and decorum of judicial proceedings.” Id. (quoting Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970)). See also People v. Roman, 35 N.Y.2d 978, 979, 324 N.E.2d 885, 886, 365 N.Y.S.2d 527, 528 (1975) (per curiam) (“A defendant is presumed innocent and he is entitled to appear in court with the dignity and the self-respect of a free and innocent man.”). Consequently, shackling is subject to close judicial scrutiny in order to ascertain whether it was necessary for the furtherance of an essential state interest. See Holbrook v. Flynn, 475 U.S. at 568, 106 S.Ct. at 1345. In ordering Gilmore to wear leg irons, the trial court expressly found that Gilmore presented a security threat because he had been charged with several other capital murders and, in one instance, had been tried and convicted. Clearly, the safety of a state’s courtrooms is an essential state interest justifying the use of restraints. See id. Furthermore, federal courts have repeatedly recognized that a trial court’s decision concerning courtroom security is accorded broad discretion and will not be reversed absent a showing of abuse. See, e.g., Wilson v. McCarthy, 770 F.2d 1482, 1484 (9th Cir.1985); Harrell v. Israel, 672 F.2d 632, 636 (7th Cir.1982); Payne v. Smith, 667 F.2d 541, 544 (6th Cir.1981), cert. denied, 456 U.S. 932, 102 S.Ct. 1983, 72 L.Ed.2d 449 (1982). There is no evidence that the trial court abused"
},
{
"docid": "10483120",
"title": "",
"text": "anonymity-denied them a fair trial by signaling to the jurors that the defendants were dangerous and most likely guilty. They correctly point out that the constitutional presumption of innocence may be undermined by the physical indicia of guilt; criminal defendants do have a right to be free of court-imposed physical appearances that are unfairly suggestive of their guilt. See, e.g., Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (holding unconstitutional a requirement that defendant appear in prison garb at trial). On the other hand, this “does not mean ... that every practice tending to single out the accused from everyone else in the courtroom must be struck down,” Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986), especially when the proceedings present legitimate security concerns to which the presiding judge must respond. Like the decision to empanel an anonymous jury, the trial court’s choice of courtroom security procedures requires a subtle reading of the immediate atmosphere and a prediction of potential risks — judgments nearly impossible for appellate courts to second-guess after the fact. For that reason, the balancing of the competing concerns for the presumption of innocence and for the integrity of the courtroom and its proceedings is best left to the sound discretion of the trial judge. See, e.g., Scarfo, 850 F.2d at 1024; United States v. Nicholson, 846 F.2d 277, 279 (5th Cir.1988). In light of the security concerns noted above and the large number of defendants at the proceedings, we cannot say that the trial judge abused his discretion. Appellants do not point to any evidence of actual prejudice resulting from the security measures taken in their trial. Nor will we presume prejudice: We agree with another district judge who has held trials in the secure courtroom that the plexiglass partition and the video-cameras (meticulously described in his opinion) are minimally intrusive, do not come between the jury box and the defendants or witnesses, and are far less stigmatizing than many other security measures—such as the shackling of unruly, flight-prone, or dangerous defendants—used in other"
},
{
"docid": "22328880",
"title": "",
"text": "system and the presumption of innocence. When defense counsel vigorously represents his client’s interests and the trial judge assiduously works to impress jurors with the need to presume the defendant’s innocence, we have trusted that á fair result can be obtained. Our faith in the adversary system and in jurors’ capacity to adhere to the trial judge’s instructions has never been absolute, however. We have recognized that certain practices pose such a threat to the “fairness of the factfinding process” that they must be subjected to “close judicial scrutiny.” Estelle v. Williams, 425 U. S. 501, 503-504 (1976). Thus, in Estelle v. Williams, we noted that where a defendant is forced to wear prison clothes when appearing before the jury, “the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.” Id., at 504-505. Since no “essential state policy” is served by compelling a defendant to dress in this manner, id., at 505, this Court went no further and concluded that the practice is unconstitutional. This close scrutiny of inherently prejudicial practices has not always been fatal, however. In Illinois v. Allen, 397 U. S. 337 (1970), the Court emphasized that a defendant may be prejudiced if he appears before the jury bound and gagged. “Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Id., at 344. Yet the Court nonetheless observed that in certain extreme situations, “binding and gagging might possibly be the fairest and most reasonable way to handle” a particularly obstreperous and disruptive defendant. Ibid. B The first issue to be considered here is thus whether the conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial is the sort of inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest specific to each trial. We"
}
]
|
392037 | not for those filing under (b). A desire for equality among taxpayers is to be attributed to Congress, rather than the reverse. Colgate-Palmolive-Peet Company v. United States, 320 U.S. 422, 425, 64 S.Ct. 227, 88 L.Ed. 143 (1943); United States v. Gilmore, 372 U.S. 39, 48, 83 S.Ct. 623, 9 L.Ed.2d 570 (1963). Plaintiffs’ reliance on decisions which have distinguished Welch is misplaced. In Bayley v. C.I.R., 35 T.C. 288 (1960), taxpayers who had reported a gain from the sale of their residence on their original return but who had failed to include it as income thereon were allowed to compute such income on the installment basis in an amended return filed after the statutory period for filing had expired. In REDACTED taxpayers were allowed, by way of a late amended return, to report on the installment method income from the sale of their house, where they had failed to report the sale at all on their original return. To the same effect as Hornberger is Bookwalter v. Mayer, 345 F.2d 476 (8th Cir. 1965); and see Rev.Rul. 65-297, 1965-2 Cum.Bull. 152. The foregoing cases stand only for the proposition that, in appropriate circumstances, an election to report income under the installment method of accounting may be made after expiration of the time allowed for filing where that income has not been previously reported under an inconsistent method. Plaintiffs, in the instant case, were afforded the benefit of this rule in | [
{
"docid": "18355795",
"title": "",
"text": "taxpayer has no bearing on the making of an election. So, too, in the later case of Scales v. C. I. R., 6 Cir., 211 F.2d 133, the taxpayer reported income from a sale as rent, and thus made no “election” to treat what was really a sale as an installment sale. The Court, in a short per curiam, opinion reversed the Tax Court decision based on the failure of the taxpayer to make an election, quoting its earlier Eversman case with approval. We think it is worthy of note that the Tax Court itself, subsequent to deciding the Hornberger ease now before us has held in Bayley v. Commissioner, 35 T.C. No. 37, that the failure of the taxpayer to claim the benefits of Section 44(b) on his return is not fatal to its allowance where the taxpayer reported the facts touching on the sale of his house, but reported no taxable gain. The Court there said, as we say here: “ * * * It is to be observed that neither the statute nor the regulations in force and effect at the time when Federal income tax returns for the calendar year 1954 were due to be filed, specifically required that a taxpayer must make his election on his return in order to have the benefit of the installment method for computing the gain on a sale which qualified as an installment sale.” The fact that the Tax Court decided differently in the Bayley case than here because the facts were disclosed in the return evidences a concept that the failure to give the facts touching on the sale (even though an excusable omission, as here conceded) somehow should be penal ized. We do not think the law recognizes this concept. If a failure to report an income producing sale is excusable and may be corrected’ without penalty for all other purposes of the income tax laws, we perceive no reason why, if reported or claimed as an installment sale while the year of sale is still open to adjustment under the statute and if it has not"
}
]
| [
{
"docid": "21205030",
"title": "",
"text": "each sale. In Mayer & Co., 9 B.T.A. 815, 822 (1927), the Board stated: * * * When [the taxpayer dealer] changed its method of reporting from the accrual method to the installment method, it was called upon to report all of its income from installment sales under that method. It must treat all such items of income consistently. It cannot return under both methods. To follow both methods would result in distortion of income. * * * In Franc Furniture Co., 1 B.T.A. 420 (1925), the taxpayer deducted only part of its expenses when reporting income on the installment basis. It was entitled to deduct all of its expenses when incurred, regardless of how it reported income. The taxpayer submitted amended returns but the Commissioner regarded them as changing its basis of reporting income and they were not acceptable. The Board held that the amended returns did not change the method , of reporting income but merely claimed additional expense deductions. In Ivan D. Pomeroy, 54 T.C. 1716 (1970), the petitioner, who had sold his residence, stated in 'his income tax return for the year of sale: “Electing to treat as an installment sale * * 54 T.C. at 1720. The Commissioner determined that the taxpayer had erroneously' applied the. installment method in computing his gain, and the taxpayer then sought io report tbe gain on the “open contract” method. The court held, however, that despite his erroneous computation, the petitioner had elected the installment method : * * * Here, petitioner did make a permissible election on his return and only his computation of gain is disputed by the respondent. Having thus made that election, petitioner may not now change his position. [54 T. C. at 1724.] The well-accepted principle that an election of a permissible elective method is valid despite the taxpayer’s incorrect application of that method- is not unique to the installment sale area. Just as plaintiff’s election of the installment method required it to report all of its installment sales on that method, so an election to take a credit rather than a deduction for"
},
{
"docid": "16230512",
"title": "",
"text": "to delay or otherwise obstruct the operation of the revenue laws. Thus, we are not presented with a situation where lack of good faith on the taxpayer’s part may cause his plea for relief to be denied. Compare John Harper, 54 T.C. 1121, 1143-1146 (1970), with Baca v. Commissioner, 326 F. 2d 189 (C.A. 5, 1964), reversing 38 T.C. 609 (1962); Hornberger v. Commissioner, 289 F. 2d 602 (C.A. 5, 1961), reversing a Memorandum Opinion of this Court; and F. E. McGillick Co., 42 T.C. 1059 (1964). The instant case is distinguishable from the factual pattern we faced in Peter Mamula, 41 T.C. 572 (1964), revd. 346 F. 2d 1016 (C.A. 9, 1965). There the taxpayer originally reported his gain from sales of real estate upon -the deferred-payment method, a method inconsistent with the installment method the taxpayer later 'attempted to elect. In refusing to allow the taxpayer to recompute his gain under the installment method we relied upon the fact that the applicable regulation specifically required the taxpayer to set forth in his return an election to report gain upon the installment basis. See sec. 1.453-8 (b), Income Tax Eegs. As previously stated, the regulation here does not specify how or when a taxpayer must adopt an acceptable method of depreciation. For the purposes of this case, we conclude that the result in Eev. Eul. 67-338,1967-2 C.B. 102, imposes too strong a sanction for petitioner’s concededly mistaken initial choice of an unacceptable method of computing depreciation. While the suggested result of respondent’s ruling should not lightly be disregarded, we have previously denied effect to another such ruling in the election area when we believed that the ruling constituted too strict an interpretation of the Code and its accompanying regulations. F. E. McGillick Co., supra. Tn order to permit the parties to calculate the depreciation under the 150-percent declining-balance method, Decision will be entered wider Bule SO. Reviewed by the Court. Unless otherwise specified, all section references are to the Internal Revenue Code of 1954, as amended. SEC. 167. DEPRECIATION. (a) General Rule. — There shall be allowed as a"
},
{
"docid": "16691012",
"title": "",
"text": "property, and who elects to report the income therefrom on the installment method must set forth in his income tax return (or in a statement attached thereto) for the year of the sale or other disposition the computation of the gross profit on the sale or other disposition under the installment method. In any taxable year in which the taxpayer receives payments attributable to such sale or other disposition, he must also show in his income tax return the computation of the amount of income which is being reported in that year on such sale or other disposition. [Emphasis added.] Neither section 453 nor the above cited regulation specifically requires a taxpayer to make an election of the installment method in his original timely filed return. The issue as to when a valid election may be made has been the subject of considerable litigation, and has involved both section 453, and its predecessors, section 44 of the Revenue Act of 1928, and section 44 of the Internal Revenue Code of 1939. The seminal case in this area is Pacific National Co. v. Welch, 304 U.S. 191 (1938). In that case, the Supreme Court laid down the general rule that where a taxpayer elects in his return for the year of sale a valid method of reporting income from a sale of realty other than the installment method, he is bound by that election and may not file an amended return to elect the installment method. The Court stated the policy underlying its decision as follows: Change from one method to the other, as petitioner seeks, would require recomputation and readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration of the revenue laws. It would operate, to enlarge the statutory period for filing returns * * *. There is nothing to suggest that Congress intended to permit a taxpayer, after expiration of the time within which return is to be made, to have his tax liability computed and settled according to the other method. By reporting income from the sales in question according to the deferred"
},
{
"docid": "20077663",
"title": "",
"text": "installment basis on a timely -filed return for the year 1958, forfeited their right to elect the installment basis, so the entire profit is taxable in 1958, the year of sale. See Eev. Eul. 93, 1958-1 C.B. 82. Secondarily, respondent contends that petitioners could not obtain the benefits of the installment method of reporting by filing an amended return for 1958 which did meet the requirements of the regulations. Eespondent’s primary argument finds support in some of the language used in earlier opinions of this Court, see Sarah Briarly, 29 B.T.A. 256 (1933); W. T. Thrift, Sr., 15 T.C. 366 (1950); Cedar Valley Distillery, Inc., 16 T.C. 870 (1951); W. A. Ireland, 32 T.C. 994 (1959). However, in most of these cases there had been either a complete failure to report any income from the transaction in the original return for the year of sale and/or no amended return had been filed, or an affirmative election had been made in the return filed to report the sale on some basis inconsistent with the installment method. In more recent cases, however, this Court has not always adhered to the strict rule enunciated in Eev. Eul. 93, supra. See John F. Bayley, 35 T.C. 288 (1960); Jack Farber, 36 T.C. 1142 (1961), affd. 312 F. 2d 729 (1963) without mention of this issue, certiorari denied 374 U.S. 828 (1963); Nathan O. Spivey, 40 T.C. 1051 (1963). Compare, however, Marion C' de Baca, 38 T.C. 609 (1962), revd. 326 F. 2d 189 (C.A. 5, 1964). The Courts of Appeals which dealt with this problem under the 1939 Code and the regulations promulgated thereunder, Eegs. 118, sec. 39.4A-3, which were effective until December 17, 1958, also generally refused to apply the strict rule relied on by respondent. So far as we can determine only two circuit courts were squarely faced with the issue under the prior regulations, and in each instance both of them declined to apply the strict rule. See United States v. Eversman, 133 F. 2d 261 (1943), and Scales v. Commissioner, 211 F. 2d 133 (1954), reversing 18 T.C. 1263 (1952),"
},
{
"docid": "15794534",
"title": "",
"text": "the contention that, though reporting the entire income for the transaction for the tax year 1948, petitioner may now change his choice of that year and have the income redistributed through the successive years in which he received installment payments on his note, the decision of the Tax Court is clearly upheld by the Supreme Court in Pacific National Co. v. Welch, 304 U.S. 191, 58 S.Ct. 857, 82 L.Ed. 1282. In that case taxpayer wished to recompute on the installment method a return using an inept application of the deferred payment method. It was conceded that if taxpayer could recompute it would result in lower taxes, but the court said the method used by taxpayer fairly reflected income. The court also stated at pages 194-195 of 304 U.S., at page 858 of 58 S.Ct.: “Change from one method to the other, as petitioner seeks, would require recomputation .and readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration of the revenue laws. It would operate to enlarge the statutory period for filing returns, section 53(a), 26 U.S. C.A. § 53 (a) and note, to include the period allowed for recovering over-payments, section 322(b), 26 U.S. C.A. § 322 note. There is nothing to suggest that Congréss intended to permit a taxpayer, after expiration of the time within which return is to be made, to have his tax liability computed and settled according to the other method. By reporting income from the sales in question according to the deferred payment ' method, petitioner made an election that is binding upon it and the commissioner.” The Second Circuit so holds in Marks v. United States, 98 F.2d 564, 567. The case of United States v. Eversman, 6 Cir., 133 F.2d 261, relied upon by petitioner, is distinguishable. There the taxpayer did not report the installment as income for the tax year in question. If the case of Scales v. Commissioner, 6 Cir., 211 F.2d 133, also relied upon by petitioner, is not distinguishable, we are not in agreement. The decision of the Tax Court is upheld. ."
},
{
"docid": "16939028",
"title": "",
"text": "their attempting to elect a method of reporting that was inconsistent with the installment sales method, they did not set forth in their return, as they would have been required to do by the regulations, “the computation-of the amount of income which is being reported [on the installment sales basis] in that year on such sale * * Petitioners have attempted to report on the deferred-payment method and have thus made an election not to use the installment sales method which is inconsistent therewith; they may not now have the benefit of the latter method. Cf. Pacific National Co. v. Welch, 304 U.S. 191; Jacobs v. Commissioner, 224 F. 2d 412 (C.A. 9); Albert Vischia, 26 T.C. 1026; W. A. Ireland, 32 T.C. 994; John W. Commons, 20 T.C. 900. Apart from the fact that the present case is governed by the new regulations adopted in 1958 (cf. Nathan Spivey, 40 T.C. 1051, 1054), cases such as Hornberger v. Commissioner, 289 F. 2d 602 (C.A. 5), relied upon by petitioners, are distinguishable for reasons explicitly set forth in the Horriberger opinion as follows (p. 604) : We are not dealing with a case where a taxpayer has made an election by reporting the sale on a deferred payment basis and subsequently seeks to change his position, as was the situation in Pacific National Company v. Welch, 304 U.S. 191, 58 S. Ct. 857, 82 L. Ed. 1282, and in Jacobs v. Commissioner, 9 Cir., 224 F. 2d 412, * * *. Petitioners have attempted to distinguish the cases cited above in Hornberger on the ground that they did not choose a method mailable to them, i.e., the deferred-payment method. But the point is that they did choose that method, which was at least arguably open to them. The reason that it turned out not to be available is that the notes which they received are now agreed to have an ascertainable fair market value substantially equal to their face amounts. But at the time the returns were prepared the accountant apparently thought that the facts could be interpreted otherwise, and"
},
{
"docid": "12461202",
"title": "",
"text": "any approved method of computing depreciation, including the 150-percent declining balance method. The fact that petitioners continued to use the straight line method in 1956 was not an “election” of a method, they maintain, inasmuch as respondent redetermined the remaining useful life and salvage value for that year. Therefore, they argue they should be allowed to amend their 1956 returns and have their free choice of methods. \"We think it is clear that the use of the straight line method on the books and on the 1956 income tax returns of the owners was a use by them of that method, and that they could not change to the 150-percent declining balance method without the consent of the respondent unless such consent was arbitrarily withheld. Petitioners rely on John F. Bayley, 35 T.C. 288, 298 (1960). In that case, however, the issue was the timeliness of the election to use the installment method of computing gains on the sale of an asset rather than a change from one method to another. In that case, respondent determined that gain was recognizable which had been reported on the return as nonrecognizable. Inasmuch as the gains were not reported as subject to taxation, no election had been made by the taxpayer concerning the method of reporting his gain, and under the circumstances of that case an election could not reasonably have been required until respondent determined that the gain was includible in income. Respondent nevertheless contended that because there was no election to use the installment method on the original return, the taxpayer could not at a later date elect to do so. Allowing the use of the installment method, we stated (p. 298) : It is our opinion that, in the circumstances here present, petitioners did make a timely election to use the installment method. An election normally implies a choice between two or more alternatives. When petitioners on their return claimed the benefit of the nonrecognition of gain provisions, they were not then electing or making a choice between reporting such gain in its entirety on the one hand, and reporting"
},
{
"docid": "21370933",
"title": "",
"text": "the nonrecognition provisions of the Code. The Tax Court, in the portion of its opinion appropriate to the present controversy, stated at page 298: “It is our opinion that, in the circumstances here present, petitioners did make a timely election to use the installment method. * * * [T]he first time when petitioners were faced with the necessity of making such an election or choice was when the respondent determined that the gain was includible in income. They then did elect in their amended petition to have the gain computed under the installment method, if it should be determined that the respondent was correct. As above stated, it is our opinion that such election was timely.” See also discussion in Bookwalter v. Mayer, Eighth Circuit, 345 F.2d 476, April 30, 1965, citing The Glidden Co. v. United States, N.D.Ohio, 241 F.Supp. 195. We find the Tax Court in error in its imposition of a penalty on taxpayer by insisting that he use the less favorable method of income recognition in the course of the compulsory recalculation of tax liability for 1959 and 1960. We also find that the alternative basis relied upon by the Tax Court to deny petitioner access to the installment method is unwarranted. Taxpayer fully disclosed the sales transactions in question in his tax return for the year of sale, 1959. He at that time chose an invalid method of income recognition; he did not use the installment method, so he of course did not attach a schedule showing the installment method calculations. The Regulations in question cannot be construed to apply in an instance where the taxpayer has not chosen the installment method in the year of sale, but has subsequently been permitted to elect it when the method originally elected has been determined to be invalid. The Regulations can only be reasonably construed as applicable where the taxpayer does elect the installment method in the year of sale; if he so elects, the Regulations set out the nature of the schedules that must be attached to that year’s income tax return. In light of the"
},
{
"docid": "21205035",
"title": "",
"text": "claim. In Ray W. Torrey Co. v. Commissioner, 84 F. 2d 659 (6th Cir. 1936), rev’g on procedural issue, 1934 P-H B.T.A. Memo. Dec. ¶ 34,283, the taxpayer had filed a return “on the installment basis although not strictly in accordance with the respondent’s regulations” (1934 P-H B.T.A. Memo. Dec. ¶ 34,283). A year later it filed an amended return showing substantially less income, correctly computed under the installment method. The Board of Tax Appeals rejected the Commissioner’s argument (the same one he makes here) that the taxpayer was attempting to change to the installment method in its amended return. The Board held, and the Sixth Circuit agreed, that, while the original return was not technically correct under the install ment method, the taxpayer nevertheless intended to and did file its original return on that method. Accordingly, on remand the Board of Tax Appeals found that the taxpayer had no taxable income for the year in question and was entitled to a refund (Ray W. Torrey Co., 1936 P-H B.T.A. Memo. Dec. ¶36,396). Applying the above rules to the instant case, it is clear that plaintiff was not permitted to report on the accrual method its income from sales on rotating charge accounts, for a dealer who elected the installment method was required to report all income from its installment sales on the installment method. Accordingly, plaintiff could not have elected and did not elect to report income from its rotating charge accounts on the accrual method; but, rather, such reporting was an error. By filing its timely claims for refund properly reporting that income on the installment method, plaintiff corrected its error. Plaintiff had to report all of its installment sales on the installment method. The sales in the rotating charge accounts were installment sales. There is no division of revolving charge accounts into separate accounts. All revolving charge accounts are to be treated the same. Since the continuous budget accounts were reported on the installment method, so, too, must the rotating charge accounts. Plaintiff’s method was not a hybrid nor was it an erroneous accounting method. There was"
},
{
"docid": "14209600",
"title": "",
"text": "have the gain taxed by the installment method. It is conceded taxpayers made no election in their 1958 return. Thus, this is not a case in which a taxpayer elects to report a sale on some method and then attempts to change his election, which he is prohibited from doing. See Pacific Nat’l Co. v. Welch, 304 U.S. 191, 58 S.Ct. 857, 82 L.Ed. 1282. The Commissioner agrees that the taxpayers complied with all requirements for an installment of sale except the making of a timely election. Under the Commissioner’s reasoning, if no return is filed in the year of sale the taxpayer in a subsequent year may elect the installment method but if he files a return in the year of sale in which nothing is reported concerning the same, he may not file an amended return electing the installment method. Thus by silence, taxpayer forfeits his right to make an election. We have found but two cases interpreting Regulation 1.453-8 (b) with respect to the issue confronting us. Both have held that the return containing the election need not be timely and that an amended return is sufficient. The Tax Court considered this issue in Reaver v. Commissioner, 42 T.C. 72, reviewed by the Court. There partial payments from the sale of real property were entered by taxpayers on their books as business income and subsequently similarly reported in their income tax return. Thereafter, an amended return was filed in which taxpayers elected to report the gain on the installment basis. The Commissioner argued that the taxpayers having failed to elect to report their profits on the sale on the installment basis on a timely return filed for the year 1958, forfeited their right to elect the installment basis. Such contention was rejected by the Tax Court, the Court stating: “The Commissioner has been given rather broad rule-making authority by section 453 and it would seem that if he considered it to be a reasonable and valid requirement under the statute that an affirmative election to use the installment method be made in an original and timely filed"
},
{
"docid": "17954468",
"title": "",
"text": "involved one. It contained many items of income and deductions. The aggregate amounts were large, but the net effect of all the items was a comparatively insignificant amount of taxable income. One of the factors which produced this result was Miller’s $43,869.39 claimed share of the 1959 loss sustained by Shelborne Enterprises, Inc. And the expectation of taking this loss as a deduction was one of the elements considered in deciding to report the full $280,673.41 gain on sale of the unimproved land in 1959. After it appeared that the Shelborne loss might not be deductible by reason of the corporation’s failure to qualify as a small business corporation, the Millers attempted to reverse their election to report the gain on sale of the unimproved land in full in 1959 and they now seek to have that gain taxed on the installment method. We hold that petitioners are bound by the election made on their original 1959 return. Although petitioners would have been entitled to utilize the installment method of reporting, they elected otherwise, and their attempt to take advantage of that method now comes too late. They may not undo what they have done. Pacific National Co. v. Welch, 304 U.S. 191; United States v. Kaplan, 304 U.S. 195. This case is unlike the situations and decisions dealt with in Rev. Rul. 65-297, 1965-2- C.B. 152 (see also T.I.R. 756, Aug. 24, 1965), where there was a failure to make any election in the original return; nor is it like the situation where the election that the taxpayer attempted to make was not open to him. Cf. Mamula v. Commissioner, 346 F. 2d 1016 (C.A. 9), reversing 41 T.C. 572. Here, petitioners did make an available election on their original return. They could have selected either the installment method or the method that they actually used. Having thus made that election they may not now reverse such action. The very situation before us was distinguished in Hornberger v. Commissioner, 289 F. 2d 602 (C.A. 5), where the court reached a different result on the facts before it (p. 604)"
},
{
"docid": "16691014",
"title": "",
"text": "payment method, petitioner made an election that is binding upon it and the commissioner. [304 U.S. at 194.] See also United States v. Kaplan, 304 U.S. 195 (1938); Jacobs v. Commissioner, 224 F.2d 412, 414 (9th Cir. 1955); Marks v. United States, 98 F.2d 564, 567 (2d Cir. 1938); Pollack v. Commissioner, 47 T.C. 92, 111-113 (1966), affd. on other grounds 392 F.2d 409 (5th Cir. 1968); Vischia v. Commissioner, 26 T.C. 1027, 1029 (1956). Although the \"binding election” rule as set forth by the Supreme Court in Pacific National Co. has been recognized consistently as controlling the general issue before us, a body of case law has arisen in which the courts have distinguished and refined the \"binding election” rule. These cases have allowed a taxpayer to elect the installment method subsequent to filing his tax return for the year of sale when the taxpayer’s original choice of reporting income from the sale is an impermissible method. In Reaver v. Commissioner, 42 T.C. 72 (1964), for example, the taxpayers, husband and wife, erroneously reported income received from an installment sale as ordinary business receipts. This Court found that by reporting the sales proceeds as ordinary business income, the taxpayers had made no election to report the sale other than on the installment method so as to prevent them from electing the installment method on an amended return. The Court stated: Petitioners have never adopted any position inconsistent with that reflected in the amended return; they have never represented that they were using any other method to account for their gain on the sale; the entire receipts were included in income; all the information required by the regulations was supplied in the amended return; and respondent at no time could have been misled to •■his disadvantage. [42 T.C. at 82. Emphasis added.] To the same effect, see Mamula v. Commissioner, 346 F.2d 1016 (9th Cir. 1965), revg. 41 T.C. 572 (1964) (sale of realty improperly reported on the deferred payment method); Scales v. Commissioner, 211 F.2d 133 (6th Cir. 1954), revg. 18 T.C. 1263 (1952) (sale of farm and dairy"
},
{
"docid": "21408150",
"title": "",
"text": "this election which consequently was not litigated or determined. The case is distinguishable from this case upon the grounds (1) that no election had been made in respect to the property until after the assessment, and (2) the validity of the subsequent election was not contested by the government and apparently was approved by the Commissioner. This policy of approval is now incorporated generally in the federal income tax law. Reg. Sec. 1.167(a)-10 (a). Similar cases, where the capital investment was originally depreciated as an expense without an election and thereafter reclassified, are not in point. Other cases involving a failure to make a timely election of the method of depreciating capital assets are not in point. A number of cases are cited by the plaintiff involving elections to report long term capital gains on the installment method. These include cases such as Bayley v. Commissioner, 35 T.C. 288, wherein the taxpayers reported a gain from the sale of their principal residence claiming it was entitled to nonrecognition of the gain by reason of the provisions contained in Section 1034, Int.Rev.Code of 1954. After the Commissioner had determined that the taxpayers were in error on the non-recognition point, the taxpayers requested that they be allowed to compute the gain on the installment method. The Tax Court held that the taxpayers had made no election originally and that the Commissioner had recognized the right of taxpayers to make an election after the adverse determination on non-recognition, citing Rev.Rul. 56-396,1956-2 Cum. Bull. 298. This case obviously did not Involve a premature election. The recent case of Bookwalter v. Mayer, supra, is similar in result. All the cases on elections to treat capital gain on the installment method cannot be reconciled. Compare Ackerman v. United States (C.A. 10) 318 F.2d 402, wherein a strict rule against an untimely election of installment method is applied. The plaintiff relies upon Goldstein v. United States (C.A. 8) 227 F.2d 1, which did not involve any election by the plaintiff's stockholders or any right to make an election. The question there was whether or not the government"
},
{
"docid": "20105443",
"title": "",
"text": "Pacific National Co. v. Welch, 304 U. S. 191, denied to a taxpayer the right to file amended returns on the installment method of reporting income after it had previously filed timely returns on the completed contract method of reporting income, and said: The parties agree that, if allowed to change to the installment method, petitioner would be entitled to a refund in some amount. But that fact has no tendency to discredit the deferred payment method as inapplicable. The amount of the tax for the year in question is only one of many considerations that may be taken into account by the taxpayer when deciding which method to employ. The one that will produce a higher tax may be preferable because of probable effect on amount of taxes in later years. In case of overstatement and overpayment, the taxpayer may obtain refund calculated according to the method on which the return was made. Change from one method to the other, as petitioner seeks, would require recomputation and.readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration of the revenue laws. It would operate to enlarge the statutory period for filing returns, section 53 (a), 26 U. S. C. A. §53 (a) and note, to include the period allowed for recovering overpayments, section 322 (b), 26 U. S. C. A. §322 note. There is nothing to suggest that Congress intended to permit a taxpayer, after expiration of the time within which return is to be made, to have his tax liability computed and settled according to the other method. * * * Cf. John D. Biggets, 39 B. T. A. 480. The respondent’s regulations under section 46 provide for established procedures to be followed where a taxpayer desires to change the accounting period for which he computes income. Admittedly, this established procedure was not followed by the petitioner. If she had desired to effect the change, which she now desires to make retroactively by resisting the imposition of the deficiencies on the ground that her calendar year returns should properly have been filed on a fiscal"
},
{
"docid": "16691013",
"title": "",
"text": "this area is Pacific National Co. v. Welch, 304 U.S. 191 (1938). In that case, the Supreme Court laid down the general rule that where a taxpayer elects in his return for the year of sale a valid method of reporting income from a sale of realty other than the installment method, he is bound by that election and may not file an amended return to elect the installment method. The Court stated the policy underlying its decision as follows: Change from one method to the other, as petitioner seeks, would require recomputation and readjustment of tax liability for subsequent years and impose burdensome uncertainties upon the administration of the revenue laws. It would operate, to enlarge the statutory period for filing returns * * *. There is nothing to suggest that Congress intended to permit a taxpayer, after expiration of the time within which return is to be made, to have his tax liability computed and settled according to the other method. By reporting income from the sales in question according to the deferred payment method, petitioner made an election that is binding upon it and the commissioner. [304 U.S. at 194.] See also United States v. Kaplan, 304 U.S. 195 (1938); Jacobs v. Commissioner, 224 F.2d 412, 414 (9th Cir. 1955); Marks v. United States, 98 F.2d 564, 567 (2d Cir. 1938); Pollack v. Commissioner, 47 T.C. 92, 111-113 (1966), affd. on other grounds 392 F.2d 409 (5th Cir. 1968); Vischia v. Commissioner, 26 T.C. 1027, 1029 (1956). Although the \"binding election” rule as set forth by the Supreme Court in Pacific National Co. has been recognized consistently as controlling the general issue before us, a body of case law has arisen in which the courts have distinguished and refined the \"binding election” rule. These cases have allowed a taxpayer to elect the installment method subsequent to filing his tax return for the year of sale when the taxpayer’s original choice of reporting income from the sale is an impermissible method. In Reaver v. Commissioner, 42 T.C. 72 (1964), for example, the taxpayers, husband and wife, erroneously reported"
},
{
"docid": "20077662",
"title": "",
"text": "filed Sept. 17,1958) but was made applicable to taxable years ending after December 17, 1958 (sec. 1.453-10(b)). It provides as follows: (b) Sales of real property and casual sales of personal property. (1) A taxpayer who sells or otherwise disposes of real property, or who makes a casual sale or other casual disposition of personal property, and who elects to report the income therefrom on the installment method must set forth in his income tax return (or in a statement attached thereto) for the year of the sale or other disposition the computation of the gross profit on the sale or other disposition under the installment method. In any taxable year in which the taxpayer receives payments attributable to such sale or other disposition, he must also show in his income tax return the computation of the amount of income which is being reported in that year on such sale or other disposition. Eespondent’s primary argument in this case is that petitioners, having failed to elect to report their profit on the sale on the installment basis on a timely -filed return for the year 1958, forfeited their right to elect the installment basis, so the entire profit is taxable in 1958, the year of sale. See Eev. Eul. 93, 1958-1 C.B. 82. Secondarily, respondent contends that petitioners could not obtain the benefits of the installment method of reporting by filing an amended return for 1958 which did meet the requirements of the regulations. Eespondent’s primary argument finds support in some of the language used in earlier opinions of this Court, see Sarah Briarly, 29 B.T.A. 256 (1933); W. T. Thrift, Sr., 15 T.C. 366 (1950); Cedar Valley Distillery, Inc., 16 T.C. 870 (1951); W. A. Ireland, 32 T.C. 994 (1959). However, in most of these cases there had been either a complete failure to report any income from the transaction in the original return for the year of sale and/or no amended return had been filed, or an affirmative election had been made in the return filed to report the sale on some basis inconsistent with the installment method."
},
{
"docid": "21408149",
"title": "",
"text": "nor its wording permit such a ruling, which would give unjustifiable and preferential treatment to taxpayers who failed to follow the law concerning the time to begin depreciation. Compare J. E. Riley Investment Co. v. Commissioner, 311 U.S. 55, at page 59, 61 S.Ct. 95 at page 97, 85 L.Ed. 36 at page 39. AUTHORITIES DISTINGUISHED No case directly in point on the question presented in this case has been cited by counsel or found. Numerous cases upon questions asserted by the parties to be analogous have been cited but found to be inapplicable. For instance, the plaintiff relies strongly upon Frito-Lay, Inc. v. United States (N.D.Ga.) 209 F.Supp. 886. In that case the taxpayer attempted to deduct as rents, payments made upon a purported lease. There was no election in the original return concerning methods of depreciation. Upon audit, the Commissioner determined that the so-called rental expenses were capital investments subject to depreciation. The taxpayer, after the original assessment, elected to use the declining balance method of depreciation. The government conceded the validity of this election which consequently was not litigated or determined. The case is distinguishable from this case upon the grounds (1) that no election had been made in respect to the property until after the assessment, and (2) the validity of the subsequent election was not contested by the government and apparently was approved by the Commissioner. This policy of approval is now incorporated generally in the federal income tax law. Reg. Sec. 1.167(a)-10 (a). Similar cases, where the capital investment was originally depreciated as an expense without an election and thereafter reclassified, are not in point. Other cases involving a failure to make a timely election of the method of depreciating capital assets are not in point. A number of cases are cited by the plaintiff involving elections to report long term capital gains on the installment method. These include cases such as Bayley v. Commissioner, 35 T.C. 288, wherein the taxpayers reported a gain from the sale of their principal residence claiming it was entitled to nonrecognition of the gain by reason of the"
},
{
"docid": "16691015",
"title": "",
"text": "income received from an installment sale as ordinary business receipts. This Court found that by reporting the sales proceeds as ordinary business income, the taxpayers had made no election to report the sale other than on the installment method so as to prevent them from electing the installment method on an amended return. The Court stated: Petitioners have never adopted any position inconsistent with that reflected in the amended return; they have never represented that they were using any other method to account for their gain on the sale; the entire receipts were included in income; all the information required by the regulations was supplied in the amended return; and respondent at no time could have been misled to •■his disadvantage. [42 T.C. at 82. Emphasis added.] To the same effect, see Mamula v. Commissioner, 346 F.2d 1016 (9th Cir. 1965), revg. 41 T.C. 572 (1964) (sale of realty improperly reported on the deferred payment method); Scales v. Commissioner, 211 F.2d 133 (6th Cir. 1954), revg. 18 T.C. 1263 (1952) (sale of farm and dairy herd erroneously reported as rental income); Spivey v. Commissioner, 40 T.C. 1051 (1963), (sale of residence by taxpayer improperly reported as nontaxable transaction); Glidden Co. v. United States, 241 F. Supp. 195 (N.D. Ohio 1964) (sale of assets erroneously treated as a lease and income reported as rental income). By reporting the sale of tract I as a closed transaction on his income tax return for the year of sale, petitioner would appear to have elected a valid method of reporting income from the sale other than the installment method and, therefore, would appear to fall squarely within the \"binding election” of Pacific National Co. and its progeny. Petitioner seeks to escape the application of the \"binding election” rule, however, by arguing that he never made an \"election.” Petitioner argues that the term \"election” implies a conscious choice among alternatives. Since petitioner, together with his accountant, perceived the May 4, 1976, transaction as constituting one sale for purposes of section 453, petitioner thought no part of the transaction qualified for installment reporting. Petitioner concludes that"
},
{
"docid": "20077670",
"title": "",
"text": "not complying with what it considered to be the reasonable reporting requirements of the regulation. In the only other case we have found involving a year to which the new regulations were applicable, Peter Mamula, 41 T.C. 572 (1964), this Court denied the taxpayer the right to report on the installment method, but this was based on the rule of Pacific National Oo. v. Welch, sufra, that the taxpayer was bound by his previous election to report on the deferred payment basis. The Commissioner has been given rather broad rule-making authority by section 453 and it would seem that if he considered it to be a reasonable and valid requirement under the statute that an affirmative election to use the installment method be made in an original and timely filed return for the year of sale, he would so provide in his regulation. It is interesting to note that paragraph (a) of this same section of tbe regulations, sec. 1.453-8(a), relating to dealers in personal property, was amended by T.D. 6682, 1963-2 C.B. 197, filed Oct. 15,1963, to specifically provide tbat an election by a dealer in personal property to adopt or change to the installment method “must be made on an income tax return for the taxable year of the election, filed on or before the time specified (including extensions thereof) for filing such return.” There may be more reason to require a dealer in personal property to make the election in a timely filed return than for taxpayers making casual sales of property, but this indicates that the omission of a similar requirement in the part of the regulation here involved could hardly be due to oversight. In John F. Bayley, supra, taxpayers reported a sale of their residence on their original return but did not report the gain on the sale, claiming nonrecognition of the gain under section 1034, I.R.C. 1954. When it was found that the gain did not qualify for nonrecognition we permitted the taxpayers to elect, by amended petition filed in this Court, to report the gain on the installment method. In the opinion"
},
{
"docid": "16939027",
"title": "",
"text": "makes a casual sale or other casual disposition of personal property, and who elects to report the income therefrom on the installment method must set forth in his income tax return (or in a statement attached thereto) for the year of the sale or other disposition the computation of the gross profit on the sale or other disposition under the installment method. In any taxable year in which the taxpayer receives payments attributable to such sale or other disposition, he must also show in his income tax return the computation of the amount of income which is being reported in that year on such sale or other disposition. [Italics supplied.] (2) The information required by subparagraph (1) of this paragraph must be submitted for each separate sale or other disposition but, in the case of multiple sales or other dispositions, separate computations may be shown in a single statement. These regulations have been explicitly held valid. Ackerman v. United States, 318 F. 2d 402 (C.A. 10). Petitioners have not complied with the regulations. Apart from their attempting to elect a method of reporting that was inconsistent with the installment sales method, they did not set forth in their return, as they would have been required to do by the regulations, “the computation-of the amount of income which is being reported [on the installment sales basis] in that year on such sale * * Petitioners have attempted to report on the deferred-payment method and have thus made an election not to use the installment sales method which is inconsistent therewith; they may not now have the benefit of the latter method. Cf. Pacific National Co. v. Welch, 304 U.S. 191; Jacobs v. Commissioner, 224 F. 2d 412 (C.A. 9); Albert Vischia, 26 T.C. 1026; W. A. Ireland, 32 T.C. 994; John W. Commons, 20 T.C. 900. Apart from the fact that the present case is governed by the new regulations adopted in 1958 (cf. Nathan Spivey, 40 T.C. 1051, 1054), cases such as Hornberger v. Commissioner, 289 F. 2d 602 (C.A. 5), relied upon by petitioners, are distinguishable for reasons explicitly"
}
]
|
60455 | awards in similar cases as evidence of the amount in controversy. Harding v. United States Figure Skating Ass’n, 851 F.Supp. 1476, 1480-81 (D.Or.1994) (the court may look to awards in similar cases to place a value on the amount in controversy); see also Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir.2005) (district court properly considered emotional distress damage awards in similar age discrimination cases); DeAguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993) (defendants met burden of showing by preponderance of evidence that amount in controversy exceeded jurisdictional amount by showing that many of the same plaintiffs in a class action had pled damages of up to $5 million in other forums for the same injuries); REDACTED Attorneys fee awards in employment discrimination cases arising under Oregon law are probative of the amount in controversy in this case if the cases are sufficiently similar. Ten years ago, this court awarded attorneys fees of $43,505.07 for 455.9 hours of work in Robins v. Scholastic Book Fairs, 928 F.Supp. 1027, 1033 (D.Or.1996). Of the latter figure, 193.8 hours represented attorneys’ hours. Id. at 1033 n. 10. Robins turned on a question of fact: whether defendant failed to accommodate plaintiffs blood disorder, and whether defendant fired plaintiff because of his alleged disability. Id. at 1032. The court described the case | [
{
"docid": "6875021",
"title": "",
"text": "Carrol v. Interstate Brands Corp. dba Wonderbread, dba Hostess & dba Dolly Madison, et al., Cal.Super.Ct. for the County of San Francisco Case No. 995728, 1 C.E.L.M. 68 (Sept.2000) ($121,000,000 punitive damage award); Lane v. Hughes Aircraft. Co., JVR No. 801112 ($40,000,000 punitive damage award). The fact that the cited cases involve distinguishable facts is not dispositive. Notwithstanding these differences, the jury verdicts in these cases amply demonstrate the potential for large punitive damage awards in employment discrimination cases. Although the facts of the instant action are far less egregious, defendant has met its burden of showing by a preponderance of the evidence that the amount in controversy should include a punitive.damages award. 3. Emotional Distress Damages The complaint alleges that plaintiff suffered “humiliation, mental anguish, and emotional and physical distress” and that defendant seriously affected “the emotional well being of Plaintiff.” Compl. ¶¶ 25 & 29. Accordingly, plaintiff seeks recovery for “physical and mental pain and emotional anguish and suffering.” Compl., Prayer He. In fact, emotional distress damages may be considered when calculating the amount in controversy even where not clearly pled in the complaint. Miller, 1997 WL 136242 at *5; Richmond, 897 F.Supp. at 450. Although plaintiffs complaint seeks damages for emotional distress, the amount of such damages is unclear. Defendant cites Lane v. Hughes Aircraft Co., JVR No. 801112, an employment discrimination case with a $3,500,000 award for pain and suffering. Admittedly, this case is not perfectly analogous. Significantly, Lane suffered persistent discrimination over a ten-year period. In contrast, plaintiff worked for PCR Technology for only four months. Nonetheless, Lane indicates that emotional distress damages in a successful employment discrimination case may be substantial. 4. Injunctive Relief Plaintiff seeks an injunction commanding reinstatement to his former position. Compl., Prayer ¶ d. The amount in controversy may include the cost of complying with such an injunction. See Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide: Fed.Civ.Pro. Before Trial ¶ 2:483 (The Rutter Group 2001); In re Ford Motor Co./ Citibank, 264 F.3d 952, 958 (9th Cir.2001). Defendant contends that reinstatement would require it to create a new position. Def.’s"
}
]
| [
{
"docid": "3448960",
"title": "",
"text": "the alternative, that the National Bank Act did not preempt her age discrimination claim under the WLAD. The district court granted the Bank’s motion for summary judgment. The court held that Kroske qualified as an “officer” under the National Bank Act. Further, the district court concluded that § 24(Fifth) preempts the field of law regulating the Bank’s employment practices and therefore preempted Kroske’s age discrimination claim under the WLAD. Kroske timely appealed, challenging the district court’s jurisdiction and the grant of summary judgment. II. Amount In Controversy Kroske first contends that removal of her case to federal court was improper because the district court lacked diversity jurisdiction under 28 U.S.C. § 1332. She argues that the Bank did not meet its burden of establishing that the amount in controversy exceeded $75,000. “We review de novo a district court’s determination that diversity jurisdiction exists.” Breitman v. May Co. Cal., 37 F.3d 562, 563 (9th Cir.1994). The factual determinations necessary to establish diversity jurisdiction are reviewed for clear error. Co Efficient Energy Sys. v. CSL Indus., Inc., 812 F.2d 556, 557 (9th Cir.1987). Where, as here, “the complaint does not demand a dollar amount, the removing defendant bears the burden of proving by a preponderance of evidence that the amount in controversy exceeds $[75],000.” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir.1997); Cohn v. Petsmart, Inc., 281 F.3d 837, 839 (9th Cir.2002). The amount in controversy includes the amount of damages in dispute, as well as attorney’s fees, if authorized by statute or contract. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir.1998). When the amount is not “facially apparent” from the complaint, “the court may consider facts in the removal petition, and may ‘require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.’ ” Singer, 116 F.3d at 377 (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th Cir. 1995)). Here, Kroske’s complaint alleged that “she suffered and continues to suffer economic and emotion [sic] injuries and other damages,"
},
{
"docid": "13801491",
"title": "",
"text": "to each of the putative class members can be met. See Karofsky v. Abbott Lab., 921 F.Supp. 18, 20 (D.Me.1996) (projected attorney’s fees must be prorated across entire class). In any event, without any briefing from Defendant, this Court will not speculative with respect to whether attorney’s fees and costs would significantly contribute towards establishing diversity jurisdiction. Punitive Damages With respect to the class members’ claims for punitive damages, (Am.Compl. ¶7), Defendant alleges that extraordinarily large punitive damages awards have, been awarded against insurance companies in cases involving fraud. (Def.’s Notice of Removal ¶ 9.) Defendant also contends that its wealth and financial resources vastly increase the likelihood that a potential punitive damages award would be “considerable” (Def.’s Notice of Removal ¶ 10.) In essence, Defendant states that merely because extraordinary punitive damages have been awarded in similar cases and the size of its financial resources constitute sufficient evidence that the amount in controversy requirement in the instant case has been met for Plaintiff and each of the class members. (Def.’s Opp’n Mem. at’6.) This Court disagrees. It would be inherently speculative for this Court to conclude that the amount in controversy requirement can be met by simply asserting that large punitive damage awards have been awarded in the past against insurance companies faced with allegations of fraud. As Plaintiff points out, Defendant has failed to articulate why the particular facts that are alleged in the instant action might warrant extraordinary punitive damages. Moreover, Bolling v. Union Nat’l Life Ins. Co., 900 F.Supp. 400 (M.D.Ala.1995), the ease upon which Defendant places primary reliance for support that courts look to awards rendered in similar cases to determine whether the amount in controversy requirement has been met, is inapposite. In Boll-ing, a case involving a single plaintiff and no class action, the district court stated that “[i]n determining whether the jurisdictional level has been met, the court should look for guidance to decisions rendered in eases on the same type of suit.” 900 F.Supp. at 404. Even if this Court were to apply the rule in Bolling to the instant ease, Defendant"
},
{
"docid": "20078235",
"title": "",
"text": "jurisdiction. Defendant nonetheless removed it to federal court, asserting that the amount in controversy exceeded $50,000. A defendant may remove a suit to federal court notwithstanding the plaintiffs failure to state an amount in controversy. Kennard v. Harris Carp., 728 F.Supp. 453 (E.D.Mich.1989). Remand is not proper unless it appears to a legal certainty that the amount in controversy is less than the jurisdictional amount. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); De Aguilar v. Boeing Co., 790 F.Supp. 693, 694 (E.D.Tex.1992). When the plaintiffs pleadings are silent, the court may look to the petition for removal or awards in similar cases in order to place a value on the amount in controversy. Kennard, 728 F.Supp. at 454; Richman v. Zimmer, Inc., 644 F.Supp. 540 (S.D.Fla.1986). Although the complaint did not specify the amount of damages sought, the petition for removal asserted the value of the right in question was over $50,000, and that allegation was supported by awards from other cases (e.g., a jury recently awarded Butch Reynolds $27,000,000 in a dispute over his eligibility for the Olympic games). Defendant also reminded this court that when plaintiff sued the United States Olympic Committee several months ago, she valued the right to skate at over twenty million dollars. Having persuaded this court that the diversity threshold had been crossed, defendant can not change its tune and assert that the amount in controversy was not over $50,000. Although it now appears that there will be no occasion for an award of damages, that fact does not deprive this court of jurisdiction. Jurisdiction attaches at the time of removal and subsequent events cannot deprive the court of jurisdiction. St. Paul, 303 U.S. at 292-93, 58 S.Ct. at 591-92. Even if it later appears that an award of damages will not be forthcoming, the district court may retain jurisdiction to grant injunctive relief or to enforce its judgments. Retention of jurisdiction would also be proper if there remained any imminent threat of harm to plaintiff. Although I conclude this"
},
{
"docid": "15356418",
"title": "",
"text": "a single defendant, all claims can be aggregated to meet the minimum jurisdictional amount. Bank of Calif. Nat’l Ass’n v. Twin Harbors Lumber Co., 465 F.2d 489, 491 (9th Cir.1972); Wolde-Meskel v. Vocational Instruction Project Community Services, Inc., 166 F.3d 59, 62 (2d Cir.1999). By way of her breach of contract claim, Plaintiff asserts a contract amount of $10,000 and seeks damages to be determined at trial. In addition, pursuant to her Bad Faith claim, Plaintiff originally alleged damages of at least $25,000, but has since clarified that those same general damages are worth at least $50,000. See Complaint, ¶ XVI; SAC, 1ÍXVI. Therefore, Plaintiff herself has pled damages totaling, at a minimum, $60,000. The only remaining question is thus whether the sum of the other damages claimed by Plaintiff, punitive damages and attorney’s fees, exceeds $15,000, thereby satisfying the jurisdictional amount in controversy. Punitive damages may be considered in determining the amount in controversy if they are recoverable as a matter of state law. Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir.2001); Anthony v. Security Pac. Fin. Servs., Inc., 75 F.3d 311, 315 (7th Cir.1996). In California, punitive damages are available pursuant to breach of implied covenant claims. Cal. Civ.Code § 3294. Accordingly, this Court may consider punitive damages when determining the amount in controversy. See Simmons, 209 F.Supp.2d at 1033. When assessing the probable amount of unspecified punitive damages for jurisdictional purposes, courts may look to verdicts in analogous cases as a reasonable approximation. See id. To this end, Defendant attempts to highlight jury verdicts with substantial punitive damage awards. See, e.g., Notice of Removal, ¶ 16 (citing Filippo Industries, Inc. v. Sun Insurance Co., 74 Cal.App.4th 1429, 88 Cal.Rptr.2d 881 (1999) (jury awarded $850,000 in contract damages along with $4,125,000 in tort damages for bad faith and $750,000 in punitive damages)). Defendant also points out that courts often apply a four-to-one ratio in remitting punitive damages awards, which would result in an estimated $200,000 award in this case. Opposition, 12:2-9 (citing State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513,"
},
{
"docid": "14888962",
"title": "",
"text": "due deference and a presumption of truth. We concluded that the defendant’s burden was a ‘heavy one’ and the legal certainty standard was therefore appropriate. Id. at 1356 (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994)). If, on the other hand, a plaintiffs complaint does not allege a specific amount in damages, a defendant need only prove by a preponderance of the evidence that the amount in controversy exceeds the juris dictional minimum. Gilman v. BHC Secur., Inc., 104 F.3d 1418, 1421 (2d Cir.1997); Tapscott, 77 F.3d at 1356; De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993); Gafford v. General Elec. Co., 997 F.2d 150, 155-61 (6th Cir.1993); Shaw, 994 F.2d at 366; Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.1992). In such cases, “[A] lower burden of proof is warranted because there is simply no estimate of damages to which a court may defer.” Tapscott, 77 F.3d at 1357 (citing Gafford, 997 F.2d at 160). This case presents the court with a hybrid situation in which the amount in controversy is neither entirely specified nor unspecified. Although plaintiffs allege a specific amount of damages in their complaint, they also request and are entitled to attorneys’ fees, which are, as yet, undetermined. The exercise of federal jurisdiction in this case turns on whether an award of attorneys’ fees will exceed six thousand dollars. Thus, the court will apply the preponderance of the evidence standard in determining whether defendant has met its burden as to that portion of the amount in controversy. While the court is tempted as a practical matter to agree with defendant’s response that this case will not likely be tried for less than $6,000 in attorneys’ fees (assuming that the plaintiffs have not already spent at least that amount), speculative arguments about the potential value of an attorneys’ fees award are insufficient to confer jurisdiction. See Conrad Associates v. Hartford Acc. & Indem. Co., 994 F.Supp. 1196, 1198 (N.D.Cal.1998). The court will therefore give both parties the opportunity to submit “ ‘summary judgment type evidence’ of facts in"
},
{
"docid": "14842323",
"title": "",
"text": "143 F.Supp.2d 1163, 1167-68 (N.D.Cal.2001). As the Northern District of California has persuasively noted, because California has the largest population of any state in the union, it will naturally have more gross sales and more customers than other states. Ho, 143 F.Supp.2d at 1167. The Arellano court suggested that a more accurate measure would be revenue per cap-ita based on the state population. Arellano, 245 F.Supp.2d at 1107 n. 1. Although California contains more than twice the premium revenues of Oregon, it also has nearly ten times the population. Thus, in per capita terms, California is actually a less significant source of revenue for Defendant. It therefore appears that the majority of Defendant’s business activity is contained in Oregon. Following the Ninth Circuit’s opinion in Integrated Tectonics, Oregon is Defendant’s primary place of business. Accordingly, diversity of citizenship exists in this case. B. Amount in Controversy The more difficult question in the present case is whether the amount in controversy requirement is met. Diversity jurisdiction requires that the amount in controversy exceed $75,000. 28 U.S.C. § 1332. As indicated, supra, Defendant bears the burden of proving the propriety of removal. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996). The Ninth Circuit has advised that courts should err in favor of rejecting federal jurisdiction if there is doubt whether removal is proper. Id. If the amount of damages sought by a plaintiff is unclear, the defendant must prove that the jurisdictional amount is in controversy by a preponderance of the evidence. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403 (9th Cir.1996). Defendant seeks to meet its burden in this case by adding the amounts Plaintiff seeks for: (1) past due benefits; (2) future benefits; (3) emotional damages; (4) attorneys’ fees; and (5) punitive damages. For the reasons below, only past due benefits and future benefits must be considered to resolve the present jurisdictional question. 1. Past Due Benefits The benefits due at the time this action was filed are the direct damages sought in this suit. Although Plaintiff did not specify this amount, Defendant calculates that it allegedly"
},
{
"docid": "8356847",
"title": "",
"text": "earlier provide circumstantial evidence of their reasons. Nor is any explanation needed. Simply by voting no to Falge, Democratic councilors avoided violating plaintiff’s constitutional rights. III. The actual calculation of counsel fees is simple. Defendants do not challenge any specific portion of the request for attorneys’ fees and expenses. In his affidavit, plaintiff’s counsel shows 67 hours devoted to this case. His fee of $75 an hour represents the hourly rate in this area normally charged for similar work by attorneys of like skill. Thus, the “lodestar” figure comes to $5,025. Cohen v. West Haven Board of Police Commissioners, 638 F.2d 496, 505 (2d Cir. 1980). Of the total hours submitted, plaintiff’s counsel spent 22.6 hours preparing this motion. Under precedent of this Circuit, those hours are not to be considered. Boe v. Colello, 447 F.Supp. 607,610 (S.D.N.Y.1978); cf. City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1102 (2d Cir. 1977). The Court sees no reason to adjust the lodestar figure in any other way. Plaintiff’s counsel represented his client quite competently, but the case presented no particularly difficult or novel issues. This Court recently awarded counsel fees of a similar amount in a patronage dismissal case. Layden v. Costello, No. 80-CV-300 (HGM) (N.D.N.Y., June 9, 1982) (award of $6,742.73 granted). See generally Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir. 1974) (discussing criteria in determining size of counsel fees award). Nor does any reason exist to upset plaintiff’s counsel’s determination of costs, amounting to $251.82. Accordingly, the five Republican councilors, defendants DeFrancisco, Ludovico, Mahoney, Tormey and Walsh, are jointly and severally liable in their personal capacities to plaintiff for attorneys’ fees and costs totalling $3,581.82. Pursuant to Fed.R. Civ.P. 58 and Local Rule 25, the Clerk shall enter judgment accordingly. IT IS SO ORDERED. . Plaintiff acknowledges that because of the temporary restraining order and injunction granted by this Court, he has not suffered any damages. Plaintiff’s Brief at 2. The Court denied plaintiff’s request for punitive damages. Visser v. Magnarelli, 530 F.Supp. 1165, 1166 (N.D.N.Y.1982). See also City of Newport v. Fact Concerts, Inc.,"
},
{
"docid": "3448961",
"title": "",
"text": "812 F.2d 556, 557 (9th Cir.1987). Where, as here, “the complaint does not demand a dollar amount, the removing defendant bears the burden of proving by a preponderance of evidence that the amount in controversy exceeds $[75],000.” Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir.1997); Cohn v. Petsmart, Inc., 281 F.3d 837, 839 (9th Cir.2002). The amount in controversy includes the amount of damages in dispute, as well as attorney’s fees, if authorized by statute or contract. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir.1998). When the amount is not “facially apparent” from the complaint, “the court may consider facts in the removal petition, and may ‘require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.’ ” Singer, 116 F.3d at 377 (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335-36 (5th Cir. 1995)). Here, Kroske’s complaint alleged that “she suffered and continues to suffer economic and emotion [sic] injuries and other damages, with specific amounts to be proven at the time of trial.” In response to the Bank’s interrogatories, Kroske further identified the following categories of damages: lost wages, benefits including but not limited to health and mental insurance, 401 (k) contributions, value of life insurance policies, stock options, and emotional distress damages, as well as attorney’s fees and costs. Kroske did not, however, allege the amount of damages or fees she sought. In determining the amount in controversy, the district court properly considered Kroske’s interrogatory answers and emotional distress damage awards in similar age discrimination cases in Washington. See De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993). Based upon a preponderance of the evidence, the court concluded that Kroske’s lost wages amounted to at least $55,000, that her 401(k) contribution amounted to at least $1000, and that her emotional distress damages would add at least an additional $25,000 to her claim. Therefore, even without including a potential award of attorney’s fees, the district court found that the amount in controversy exceeded $75,000. This"
},
{
"docid": "21044986",
"title": "",
"text": "amount in controversy requirement has been satisfied. Finally, the defendants claim that plaintiffs’ potential attorneys’ fees award should be included in the computation of the amount in controversy. II. ANALYSIS Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court. See 28 U.S.C. § 1441(a); Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996); B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir.1981). In considering a motion to remand when the plaintiff and defendant disagree on issues of jurisdiction, questions or doubts are to be resolved in favor of returning the matter to state court. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.1994). In order for a federal court to have jurisdiction over a case pursuant to Title 28, United States Code, Section 1332, the amount in controversy must currently exceed $50,000, exclusive of costs and interest. Where the plaintiff fails to request a specific damage award in the complaint, the burden is on the defendant to prove by a preponderance of the evidence “that the amount in controversy more likely than not exceeds the $50,000 jurisdictional requirement.” Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir.1996); see De Aguilar v. Boeing, 11 F.3d 55 (5th Cir.1993); Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir.1993). Here, there are four separate grounds advanced by the defendants for satisfying the jurisdictional amount. Each will be analyzed separately. (A) AGGREGATION OF CLAIMS. First, the defendants contend that even though each of the plaintiffs claims will be relatively small, the aggregate of all class members’ claims in each ease will undoubtedly exceed $50,000. Class aggregation alone, however, is not enough. In 1969, the United States Supreme Court held that class plaintiffs cannot aggregate their individual claims in order to meet the jurisdictional dollar amount in controversy requirement of Title 28, United States Code, Section 1332. Snyder v."
},
{
"docid": "13801490",
"title": "",
"text": "of the potential detriment accruing to Defendant as a result of the equitable relief sought, see Snow v. Ford Motor Co., 561 F.2d 787, 790 (9th Cir.1977), this Court must examine the potential benefits arising out of the injunctive relief that might accrue in favor of Plaintiff and the class. However, because Defendant has failed to address the effect of equitable relief on the amount in controversy requirement, it would be speculative to calculate the value accruing to Plaintiff and the class from the equitable relief sought. Thus, this Court is not persuaded that the equitable relief sought by Plaintiff would significantly contribute towards establishing diversity jurisdiction. Attorney’s Fees and Costs Although attorney’s fees and costs could be substantial, a potentially sizeable class action lawsuit, Defendant completely fails to address this matter in either its Notice of Removal or Response to Plaintiffs Motion to Remand. Moreover, as this Court’s analysis of punitive damages will demonstrate, it is unlikely that the potential attorney’s fees will be so immense that the required amount in controversy with respect to each of the putative class members can be met. See Karofsky v. Abbott Lab., 921 F.Supp. 18, 20 (D.Me.1996) (projected attorney’s fees must be prorated across entire class). In any event, without any briefing from Defendant, this Court will not speculative with respect to whether attorney’s fees and costs would significantly contribute towards establishing diversity jurisdiction. Punitive Damages With respect to the class members’ claims for punitive damages, (Am.Compl. ¶7), Defendant alleges that extraordinarily large punitive damages awards have, been awarded against insurance companies in cases involving fraud. (Def.’s Notice of Removal ¶ 9.) Defendant also contends that its wealth and financial resources vastly increase the likelihood that a potential punitive damages award would be “considerable” (Def.’s Notice of Removal ¶ 10.) In essence, Defendant states that merely because extraordinary punitive damages have been awarded in similar cases and the size of its financial resources constitute sufficient evidence that the amount in controversy requirement in the instant case has been met for Plaintiff and each of the class members. (Def.’s Opp’n Mem. at’6.) This"
},
{
"docid": "8473518",
"title": "",
"text": "of the Code were unconstitutional. See Knoeffler, 87 F.Supp.2d at 322. At a damages hearing, held on July 5, 2000, plaintiff was awarded $4,308 in damages for costs and emotional distress. The relationship between the parties was materially altered. B. Reasonable Fee In determining reasonable attorneys’ fees, the district court must consider the “lodestar figure based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate.” Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997) (citing Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989); Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir.1994)); New York Ass’n for Retarded Children v. Carey, 711 F.2d 1136, 1140 (2d Cir.1983). The lodestar figure provides an objective basis by which to estimate the fees. See Hensley, 461 U.S. at 433, 103 S.Ct. 1933. “The party seeking the award must submit evidence supporting his claim of hours worked and rates charged.” Id. However, the district court has broad discretion in determining the amount of attorneys’ fees awarded to the prevailing party. See id. at 437, 103 S.Ct. 1933; Luciano, 109 F.3d at 115. 1. Reasonable Hourly Rates A reasonable hourly rate is one “in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). a. Michael Sussman Michael Sussman, a seasoned attorney with 22 years of experience litigating Federal Civil Rights cases for the U.S. Department of Justice, the NAACP and in private practice (Sussman Affin. ¶ 4) seeks payment for 18.5 hours at a rate of $325 per hour, for a total of $6,012.50. He has argued over 100 cases in the U.S. Courts of Appeals, conducted more than sixty civil rights trials and won awards for outstanding service during his tenure at the U.S. Department of Justice. (Id. ¶ 5). Sussman admits that he currently charges his clients $300 per hour (PI. Mem."
},
{
"docid": "22045165",
"title": "",
"text": "traditional f.n.e. criteria, the Eastern District of Texas would not be a convenient forum. Id. at 142-43. This court affirmed the denial of the motion to remand and the dismissal on estoppel and f.n.e. grounds. De Aguilar v. Boeing Co. (“de Aguilar I”), 11 F.3d 55 (5th Cir.1993). We held that the district court had properly disregarded the affidavits because it was “facially apparent” that the damages sought by each plaintiff exceeded $50,000. Id. at 57. Alternatively, we noted that the attorney affidavits were not unrebutted by evidence from the defendants. Id. at 57-58. These points distinguished de Aguilar I from ANPAC. ANPAC involved claims that were not facially likely to exceed the jurisdictional amount. ANPAC, 988 F.2d at 565. In addition, in ANPAC, the only “evidence” the defendants produced to rebut the plaintiffs’ attorneys’ affidavits was the original notice of removal, which merely stated that the matter in controversy exceeded $50,000. Id. The de Aguilar I court noted that the defendants in that case had produced testimonial evidence and published precedent that indicated that the matter in controversy indeed exceeded $50,000. De Aguilar I, 11 F.3d at 58. In the alternative, the plaintiffs in de Aguilar I argued that the original notice of removal was invalid because the defendants failed to prove that the amount in controversy exceeded $50,000. We rejected this argument because defendants had shown that plaintiffs had pled damages of up to $5,000,-000 in other fora for the same injuries. Id. In the instant case, shortly after the district court had dismissed the original claims, plaintiffs’ attorneys filed another petition in state court. In this petition, at issue now, the plaintiffs dropped forty-two of the heirs, including all of the minors, and any mention of unnamed “Doe” plaintiffs. More importantly, plaintiffs, in apparent violation of Tex. R.Civ.P. 47, described the amount of their claim by specifically alleging that their damages did not exceed $50,000. Plaintiffs attached to the original petition an affidavit of attorney Dennis Reich stating that plaintiffs had agreed to an irrevocable cap on the amount of damages that could be awarded. After service,"
},
{
"docid": "22940323",
"title": "",
"text": "with nothing but minimal offsetting evidence, the Dow Química Court, id. at 566, held that the removing parties, the defendants, had not met their burden of establishing that the amount in controversy exceeded $50,000 and remanded to state court. In contrast, the defendants in the instant case offered testimonial evidence and published precedent showing that damages in the instant case and in similar cases would probably exceed $50,-000 per plaintiff. Further, the defendants offered evidence that the plaintiffs in this action claimed damages of up to $5,000,000 in other courts for the same injuries. The inconsistency between the plaintiffs’ prior claims and their current claims — at least as represented by the post-removal attorney affidavits — may indicate that the plaintiffs, rather than trying to clarify the actual amount in controversy, engaged in artful post-removal pleading in order to avoid the consequences of federal forum non conve-niens law. Diversity jurisdiction, however, derives from Article III of the Constitution, is defined by Congress, and is not subject to delimitation by such imaginative post-hoc tactics of litigants. B Even if our precedent in Dow Química does not require our reversal of the district court, the plaintiffs nevertheless contend that the district court’s denial of their motion to remand must be reversed because the removing parties have not met their burden of proving to a legal certainty that the amount in controversy exceeds $50,000. When the plaintiffs complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $50,000. See Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir.1992); Garza v. Bettcher Indus., Inc., 752 F.Supp. 753, 763 (E.D.Mich.1990). Here, the defendants easily met this burden by showing that many of the same plaintiffs in this action pled damages of up to $5,000,000 in other forums for the same injuries. C The plaintiffs also contend that the district court erred in applying federal law to resolve the forum non conveniens issue instead of Texas law. We have previously held: [A] federal court sitting in a diversity action"
},
{
"docid": "7036667",
"title": "",
"text": "an action under the FMLA, as McDonnell did here. Rather, Miller Oil contests the calculation of the fee award, arguing that the amount awarded is unreasonable in light of the fact that McDonnell received only nominal damages. We review the amount of an award of attorneys’ fees only to determine whether the district court has abused its discretion. See Colonial Williamsburg Found. v. Kittinger Co., 38 F.3d 133, 138 (4th Cir.1994). Although reversal for abuse of discretion should be reserved for those instances in which the district court is “clearly wrong,” id., “[a] district court by definition abuses its discretion when it makes an error of law,” Koon v. United States, 518 U.S. 81, -, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996). See Daly v. Hill, 790 F.2d 1071, 1085 (4th Cir.1986). In calculating an award of attorneys’ fees, a district court should “determine! ] a ‘lodestar’ figure by multiplying the number of reasonable hours expended times a reasonable rate.” Daly, 790 F.2d at 1077. In deciding what constitutes a “reasonable” number of hours and rate, the district court generally is guided by the following particular factors: “(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.” EEOC v. Service News Co., 898 F.2d 958, 965 (4th Cir.1990) (quoting Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978)). As the Supreme Court has recognized, “the most critical factor” in calculating a reasonable fee award “is the degree of success"
},
{
"docid": "22191910",
"title": "",
"text": "not ... tens of hundreds of thousands, of individuals.” Id. ¶ 19. Frederico herself paid $287.14 for her use of the rental vehicle. Id. Exhibit B. In addition, to determine whether the minimum jurisdictional amount has been met in a diversity case removed to a district court, a defendant’s notice of removal serves the same function as the complaint would if filed in the district court. Morgan, 471 F.3d at 474. Thus, we examine Home Depot’s contentions set forth therein: Assuming that Plaintiffs payment of $287.14 represents the average actual damages of each member of the putative class and the maximum punitive damages allowable under New Jersey law were awarded (see N.J. Stat. § 2:A:15-5.14(b)), Plaintiff need only prevail on behalf of 2,903 class members for the class recovery to exceed $5,000,000. Given that Plaintiff has alleged a putative class consisting of “thousands” if not “tens of hundreds of thousands” of members, it is more likely than not that $5,000,000 or more is in controversy in this case. See Compl., ¶¶ 17, 19. See Penn v. Wal-Mart Stores, Inc., 116 F.Supp.2d 557, 562 (D.N.J.2000) (“In the absence of Third Circuit precedent on the issue of what the defendant needs to show to satisfy the amount in controversy requirement when the plaintiff alleges unspecified damages, the Court will adopt the preponderance of the evidence standard.”). Moreover, Plaintiff also seeks attorneys’ fees, which can exceed six figures in a class action and are properly aggregated and considered for purposes of determining the amount in controversy under CAFA. See 28 U.S.C. § 1332(d)(6) (“In any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs.”); see also Suber v. Chrysler Corp., 104 F.3d 578, 585 (3d Cir.1997) (“Moreover, in calculating the amount in controversy, we must consider potential attorneys’ fees.”). Home Depot, Notice of Removal ¶¶ 20, 21 (filed Nov. 28, 2005). In response to this Court’s letter requesting that the parties “address whether the allegations in the complaint and notice of"
},
{
"docid": "3448962",
"title": "",
"text": "with specific amounts to be proven at the time of trial.” In response to the Bank’s interrogatories, Kroske further identified the following categories of damages: lost wages, benefits including but not limited to health and mental insurance, 401 (k) contributions, value of life insurance policies, stock options, and emotional distress damages, as well as attorney’s fees and costs. Kroske did not, however, allege the amount of damages or fees she sought. In determining the amount in controversy, the district court properly considered Kroske’s interrogatory answers and emotional distress damage awards in similar age discrimination cases in Washington. See De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993). Based upon a preponderance of the evidence, the court concluded that Kroske’s lost wages amounted to at least $55,000, that her 401(k) contribution amounted to at least $1000, and that her emotional distress damages would add at least an additional $25,000 to her claim. Therefore, even without including a potential award of attorney’s fees, the district court found that the amount in controversy exceeded $75,000. This finding was not clearly erroneous; diversity jurisdiction properly exists in this case. III. Preemption Kroske contends that the district court erred in concluding that her age discrimination claim under the WLAD, Wash. Rev. Code § 49.60.180, was preempted by the National Bank Act. The National Bank Act provides that a national bank shall have the power “[t]o elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” 12 U.S.C. § 24(Fifth) (emphasis added). Kroske concedes that she was appointed and terminated by the board of directors and does not challenge the district court’s determination that she was an “officer” under 12 U.S.C. § 24(Fifth). Kroske contends, however, that the district court erred in determining that her state law age discrimination claim is preempted by the dismiss-at-pleasure provision of § 24(Fifth). We agree. “We review a district court’s"
},
{
"docid": "23029127",
"title": "",
"text": "claim is actually for less than the jurisdictional minimum. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 401-02 (9th Cir.1996). Accordingly, we hold that where the plaintiff has pled an amount in controversy less than $5,000,000, the party seeking removal must prove with legal certainty that CAFA’s jurisdictional amount is met. C Finally, we must decide whether or not attorneys’ fees and costs should be included with damages to reach CAFA’s $5,000,000 minimum. In ordinary diversity cases, “when there is no direct legal authority for an attorney’s fee, a request for a fee cannot be included in ... the jurisdictional amount,” but “where an underlying statute authorizes an award of attorneys’ fees, either with mandatory or discretionary language, such fees may be included in the amount in controversy.” Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir.1998). We have held that attorneys’ fees were properly included in the amount in controversy in a class action. See Gibson v. Chrysler Corp., 261 F.3d 927, 942-43 (9th Cir.2001). We must look to Oregon law to determine whether attorneys’ fees are statutorily authorized in this instance. Plaintiff bases her rounding claim on Or. Rev. Stat. § 653.010(11) which defines “work time” as including “both time worked and time of authorized attendance.” Id. Damages for violation of this provision are set by Or. Rev. Stat. § 653.055, which also authorizes the court to “award reasonable attorney fees to the prevailing party.” Id. at § 653.055(4). Plaintiffs late payment claim is based on Or. Rev. Stat. § 652.140, which governs payment of wages owed upon termination of employment. Employers who violate this provision are liable for up to 30 days of penalty wages under Or. Rev. Stat. § 652.150, and under certain circumstances, must pay plaintiffs a “reasonable sum for attorney fees” for prevailing in the litigation. Or. Rev. Stat. § 652.200(2). Because the relevant Oregon statutes provide for the payment of attorneys’ fees, we include the fees in the amount in controversy. Ill The “legal certainty” standard sets a high bar for the party seeking removal, but it is not insurmountable."
},
{
"docid": "14888963",
"title": "",
"text": "which the amount in controversy is neither entirely specified nor unspecified. Although plaintiffs allege a specific amount of damages in their complaint, they also request and are entitled to attorneys’ fees, which are, as yet, undetermined. The exercise of federal jurisdiction in this case turns on whether an award of attorneys’ fees will exceed six thousand dollars. Thus, the court will apply the preponderance of the evidence standard in determining whether defendant has met its burden as to that portion of the amount in controversy. While the court is tempted as a practical matter to agree with defendant’s response that this case will not likely be tried for less than $6,000 in attorneys’ fees (assuming that the plaintiffs have not already spent at least that amount), speculative arguments about the potential value of an attorneys’ fees award are insufficient to confer jurisdiction. See Conrad Associates v. Hartford Acc. & Indem. Co., 994 F.Supp. 1196, 1198 (N.D.Cal.1998). The court will therefore give both parties the opportunity to submit “ ‘summary judgment type evidence’ of facts in controversy that support a finding of the requisite amount.” Manguno, 276 F.3d at 723; Conrad Assocs., 994 F.Supp. at 1198 (quoting Singer v. State Farm Mutual Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir.1997)); see also Unified Catholic Schools of Beaver Dam Educational Ass’n v. Universal Card Services Corp., 34 F.Supp.2d 714, 716 (E.D.Wis.1999) (“Where the amount in controversy is contested, the proponent of federal jurisdiction must ‘support its assertion with competent proof.’ ”) (quoting Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1218 (7th Cir.1995), quoting in turn, McNutt v. General Motors Acceptance Corp. of Ind., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). One way of accomplishing this might be for each side to present to the court in camera their billing records for the case thus far; another is for the court to allow the defendant limited discovery on the question of attorneys’ fees. If the plaintiffs are determined to dispute whether attorneys’ fees will, more likely than not, exceed six thousand dollars, the court will allow the"
},
{
"docid": "22051745",
"title": "",
"text": "claims of at least $75,000, while providing for jurisdiction over those that do.” Resting on this theory, however, does not establish that the district court properly has jurisdiction over this matter. If Dow’s reading of § 1332(d)(ll) is correct, it has still failed to establish that the claims made by any single plaintiff satisfy § 1332(a); accordingly remand of each and every plaintiff to state court was appropriate. Under the alternative reading of the statute, it is equally apparent that the requirements of § 1332(d)(ll) are not satisfied, as there are not 100 plaintiffs over whom the district court would have jurisdiction pursuant to § 1332(a) and (d)(2)— indeed, there are not any — and the district court properly remanded for lack of subject matter jurisdiction. See Gaus, 980 F.2d at 566 (“Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.”). D. Dow argues, however, that the district court improperly remanded the action to state court without allowing limited jurisdictional discovery as contemplated by CAFA’s legislative history and the “well-settled law of this circuit.” In its response to the order to show cause, Dow suggested that it be allowed to “serve a single request for admission to each plaintiff asking simply: ‘Admit or deny that, in this lawsuit, you are seeking at least $75,000 in damages.’ ” In Singer, we described “the appropriate procedure for determining the amount in controversy on removal” as follows: The district court may consider whether it is “facially apparent” from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition, and may “require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.” 116 F.3d at 377 (quoting Allen, 63 F.3d at 1335-36); Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir.2005) (stating the same principles and noting that “[i]n determining the amount in controversy, the district court properly considered [plaintiffs] interrogatory answers and emotional distress damage awards in similar age discrimination cases in Washington”). The"
},
{
"docid": "22051746",
"title": "",
"text": "CAFA’s legislative history and the “well-settled law of this circuit.” In its response to the order to show cause, Dow suggested that it be allowed to “serve a single request for admission to each plaintiff asking simply: ‘Admit or deny that, in this lawsuit, you are seeking at least $75,000 in damages.’ ” In Singer, we described “the appropriate procedure for determining the amount in controversy on removal” as follows: The district court may consider whether it is “facially apparent” from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition, and may “require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.” 116 F.3d at 377 (quoting Allen, 63 F.3d at 1335-36); Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir.2005) (stating the same principles and noting that “[i]n determining the amount in controversy, the district court properly considered [plaintiffs] interrogatory answers and emotional distress damage awards in similar age discrimination cases in Washington”). The plaintiff in Singer had filed an action in state court that, pursuant to California Code of Civil Procedure § 425.10(b), did not state a specified sum in the claim for relief. Singer, 116 F.3d at 374. The action was removed. On the motion to remand, the plaintiff “expressly conceded” that the amount in controversy exceeded the jurisdictional requirement, then $50,000. Id. The district court denied the motion to remand and later issued judgment in favor of the defendant. Id. at 375. We affirmed the district court’s decision, noting that the court properly exercised its discretion in accepting the judicial admission regarding the amount in controversy. Id. at 376. We explained: Where the plaintiff filed the case in state court, and did not seek the federal forum, then the plaintiffs formal judicial admission ... has the effect of defeating the plaintiffs choice of forum. In this context, where state law prohibited plaintiff from stating the amount in controversy in the complaint, the district court has discretion to accept the admission as establishing it. Otherwise we would"
}
]
|
475918 | MEMORANDUM Cyntegra, Inc. (“Cyntegra”) appeals several orders entered by the district court in favor of IDEXX Laboratories, Inc. (“IDEXX”), including an order granting IDEXX’s motion for summary judgment on all of Cyntegra’s claims. We affirm all of the district court’s orders challenged on appeal. We review the grant of summary judgment de novo. Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 912 (9th Cir.2008). We review for abuse of discretion the district court’s decisions concerning discovery, REDACTED including its imposition of sanctions for spoliation of evidence. Leon v. IDX Sys. Corp., 464 F.3d 951, 957-58 (9th Cir.2006). We likewise review the district court’s eviden-tiary rulings for abuse of discretion. Kaiser Found. Health Plan, Inc. v. Abbott Labs., Inc., 552 F.3d 1033, 1042 (9th Cir.2009). Finally, we evaluate the district court’s denial of a motion to reconsider a magistrate judge’s pretrial discovery order under a “clearly erroneous or contrary to law” standard. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir.2004). We affirm the district court’s discovery and evidentiary decisions. The district court’s denial of Cyntegra’s motion to reconsider Magistrate Judge Turchin’s order limiting certain discovery to a five-year period was not “clearly erroneous or | [
{
"docid": "22432689",
"title": "",
"text": "constitutionality of a federal regulation. Gonzalez v. Metro. Transp. Auth., 174 F.3d 1016, 1018 (9th Cir.1999). We likewise review de novo a district court’s conclusions of law. Int’l Bhd. of Teamsters v. N. Am. Airlines, 518 F.3d 1052, 1055 (9th Cir.2008). We review for clear error the district court’s findings of fact. Id. We may affirm a district court’s judgment on any ground supported by the record, even one on which the district court did not rely. Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1019 (9th Cir.2007). . As mentioned above, see note 5, our decision in this case is limited to plaintiffs’ efforts to register voters in Building 331, in which all residents have significant medical needs. We express no opinion on the constitutionality of VA efforts to prevent members of the public from registering voters in other buildings managed by the VA, in which the need for ongoing skilled nursing or medical care may be absent. We also express no opinion on the constitutionality of VA regulations, policies, or directives adopted after the events at issue in this case. . We express no opinion on the constitutionality of the VA’s decision to prevent residents of its facilities from registering fellow patients, as that issue is not before us. . We review for abuse of discretion a district court's decisions concerning discovery, Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir.2004), and trial supervision, Price v. Kramer, 200 F.3d 1237, 1252 (9th Cir.2000). . We review for abuse of discretion a district court’s decisions concerning its management of litigation. FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1212 (9th Cir.2004)."
}
]
| [
{
"docid": "6616743",
"title": "",
"text": "same genre as the enumerated motions. We hold, therefore, that such motions ordinarily should be classified as nondispositive.”); Hoar, 900 F.2d at 525 (2d Cir.) (\"Monetary sanctions pursuant to Rule 37 for noncompliance with discovery orders usually are committed to the discretion of the magistrate, reviewable by the district court under the 'clearly erroneous or contrary to law’ standard.”); Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1016-17 (5th Cir.1981) (“[T]he magistrate possessed the authority under 28 U.S.C. § 636(b)(1)(A) to enter non-dispositive discovery ordersL in this case, fees and costs in connection with a motion to compel discovery].”); Grimes v. San Francisco, 951 F.2d 236, 240 (9th Cir.1991) (\"The authority of magistrates to impose discovery sanctions is established by 28 U.S.C. § 636 and recognized by our decisions.”); Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir. 1990) (\"[W]e find that the Rule 11 sanctions imposed in this case are non-dispositive. Accordingly, the magistrate had jurisdiction to order Rule 11 sanctions and the district court properly reviewed the magistrate’s order for clear error.”); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir.1988) (“Discovery is clearly a pretrial matter, and magistrates thus have general authority to order discovery sanctions. They may not do so, however, if those sanctions fall within the eight dispositive motions excepted in subsection (A).”). . Bennett, 976 F.2d at 998 (6th Cir.) (\"[T]his purported order was dispositive of the Rule 11 matter and, consequently, dispositive of a ‘claim’ of a party. Because this was a dispositive matter, under Fed.R.Civ.P. 72(b), the magistrate judge should have issued a report and recommendation for de novo review by the district court.” (footnote omitted)); Alpern v. Lieb, 38 F.3d 933, 935 (7th Cir.1994) (\"A district judge may refer a dispute about sanctions to a magistrate judge for a recommendation under § 636(b)(1)(B) or § 636(b)(3), but the magistrate judge may not make a decision with independent effect.”). . The imposition of a sanction requiring an attorney, or a witness, or a party to pay $100, regardless of whether imposed by reason of a discovery"
},
{
"docid": "14923490",
"title": "",
"text": "requests, asserting that the scope of discovery was limited to the administrative record and moved for summary judgment. Days later Crosby moved to compel discovery, and the district court set Crosby’s motion for hearing before a magistrate judge. The magistrate conducted a hearing and indicated that she would compel some discovery. However, in her written order, she denied all requested relief. Three days later the district court, interpreting Crosby’s claim as a claim for benefits under 29 U.S.C. § 1132(a)(1)(B), granted summary judgment for Blue Cross. Thereafter, Crosby filed a motion asking the district court to reconsider and vacate its judgment. In her motion and at the hearing on the motion, Crosby complained about the lack of discovery she received and the magistrate’s decision to deny discovery. She also argued that issues of fact remained and that summary judgment should not have been granted. The district court denied her motion, and Crosby appealed. II. On appeal Crosby argues that the district court erred in granting summary judgment in favor of Blue Cross because the evidence in the record indicates that Blue Cross violated ERISA’s procedural requirements and abused its discretion by denying Crosby’s claim for benefits. She also argues that the magistrate judge erred by refusing to compel Crosby’s requested discovery. We will first consider Crosby’s complaint that discovery was wrongfully denied. A court’s decision to limit discovery is reviewed for abuse of discretion. Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir.2005). Although a court is afforded broad discretion when deciding discovery matters, the court abuses its discretion when its decision is based on an erroneous view of the law. See Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 387 (5th Cir.2009); O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 499 (5th Cir.1985). Notwithstanding, we will only vacate a court’s judgment if the court’s abuse of discretion affected the substantial rights of the appellant. Marathon Fin. Ins., Inc., RRG v. Ford Motor Co., 591 F.3d 458, 469 (5th Cir.2009). The appellant bears the burden of proving abuse of discretion and prejudice. Id.; see"
},
{
"docid": "23440674",
"title": "",
"text": "or to compensate the opposite party.” Falstaff Brewing Corp. v. Miller Brewing Corp., 702 F.2d 770, 783 n. 10 (9th Cir.1983). We hold that magistrates may impose prospective sanctions pursuant to Rule 37 where such sanctions are necessary to enforce compliance with a valid discovery order. In this case, the City’s obstruction of the discovery process caused unnecessary delay and expense, and its willful disobedience of the magistrate’s orders threatened the court’s integrity. The magistrate had the authority to impose discovery sanctions, and the district court did not err in affirming the magistrate’s $85,-000 sanction of the City. IV. Redirection of the Sanction Money Johnson appeals the district court’s sua sponte decision to distribute the sanction award among six non-party charities. In reviewing the district court’s decision, we bear in mind the following. A non-disposi-tive order entered by a magistrate must be deferred to unless it is “clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a), 28 U.S.C. § 636(b)(1)(A). The district court reviews “the magistrate’s order for clear error.” Maisonville, 902 F.2d at 748. “Pretrial orders of a magistrate under 636(b)(1)(A) are reviewable under the ‘clearly erroneous and contrary to law’ standard; they are not subject to de novo determina-tion_” Merritt, 649 F.2d at 1017. The reviewing court may not simply substitute its judgment for that of the deciding court. United States v. BNS, Inc., 858 F.2d 456, 464 (9th Cir.1988). In this case, the district judge affirmed the magistrate’s order imposing sanctions, but then of his own accord and without argument or briefing by either party modified that order to redirect the sanction money to non-party charities. The district court did so on the grounds that “the sanctions are contrary to law to the extent that they unjustly enrich one who pursues frivolous claims.” This ruling has no basis in law. As such, it is an abuse of discretion, and does not comport with the standards set out in the statutes, rules, and cases discussed above. On the redirection of the sanction award, the district court is therefore reversed. CONCLUSION First, summary judgment on Johnson’s termination claims is affirmed."
},
{
"docid": "22948814",
"title": "",
"text": "not condone the heavy-handed style of the judge in this case, his conduct does not warrant retrial. II. Alleged Discovery Abuse/Spoliation of Evidence The Paus moved for summary judgment and to strike Curry Company’s answer on the basis of spoliation of evidence and alleged discovery abuse. We review the court’s refusal to enter a default judgment against defendants for abuse of discretion. First Idaho Corp. v. Davis, 867 F.2d 1241, 1242 (9th Cir.1989). We review for clear error any factual findings the judge made relating to the motion for discovery sanctions. Halaco Eng’g Co. v. Costle, 843 F.2d 376, 379 (9th Cir.1988). The alleged discovery abuse primarily involved the confusion over the identity of the accident bike. The court accepted Curry Company’s position that this was an accidental mix-up, and noted that Curry Company had notified the Paus that both bikes were presently available for inspection. These factual findings were not clearly erroneous. The district court was within its discretion in ruling that Curry Company’s conduct did not warrant the extreme sanction of entering a default judgment against it. See Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir.1983) (dismissal sanction appropriate only where the failure to comply is due to willfulness, bad faith, or fault of the parties). The district court’s decision to enter summary judgment in favor of the Curry Company on the spoliation of evidence claim is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). Summary judgment is appropriate where the non-moving party has “failed to make a sufficient showing on an essential element of [their] case____” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In order to sustain their tort claim for intentional spoliation of evidence under California law the Paus must at least show that Curry Company intentionally destroyed evidence relevant to this law suit and that this action prejudiced the Paus’ case. Jablonski v. Royal Globe Insurance Co., 204 Cal.App.3d 379, 393-94, 251"
},
{
"docid": "23571379",
"title": "",
"text": "doors and screens, and broken or missing guardrails or handrails. Several of Appellants’ properties were designated as problem properties, subject to Code Compliance Certification, or, in a few cases, both. As a result of the City’s Housing Code enforcement, Appellants suffered increased maintenance costs, fees, condemnations, and were forced to sell properties in some instances. In 2004 and 2005, Appellants filed these actions against the City, the City’s mayor (Randy Kelly), the City’s fire inspector (Michael Urmann), a police officer who worked with DNHPI (Dean Kohnen), and several DNHPI employees, including Daw-kins, a supervisor (Steve Magner), and several code enforcement officers. We refer to Appellees collectively as “the City” unless specification is warranted. Appellants’ legal claims and the relevant facts are described in greater detail below. The district court consolidated Appellants’ actions and resolved them together. The court referred several discovery matters to a magistrate judge, including Appellants’ motion and renewed motion for sanctions due to the City’s alleged discovery abuses and Appellants’ motion to compel discovery of Steve Magner’s personal records. The magistrate judge denied both of those motions, and the district court affirmed. Then, the City moved for summary judgment. After a hearing, the district court granted the City’s motion for summary judgment in its entirety. Appellants challenge the summary judgment order, the denial of spoliation-of-evidence sanctions, and the denial of discovery regarding Magner’s personal records. II. Summary Judgment “We review a decision to grant summary judgment de novo, applying the same standard as the District Court.” Riley v. Lance, Inc., 518 F.3d 996, 999 (8th Cir.2008). We will affirm if the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2). We view the facts in the light most favorable to Appellants, drawing all reasonable inferences in their favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A. Fair Housing Act The Fair Housing Act (“FHA”) prohibits property owners and municipalities from blocking or impeding the provision of housing on"
},
{
"docid": "11466068",
"title": "",
"text": "list is not exhaustive, but rather “can be expanded to include other analogous motions as well.” United States v. Riverar-Guerrero, 377 F.3d 1064, 1068 (9th Cir.2004). By contrast, the district court may designate any non-dispositive pretrial matter to be determined by a magistrate judge, whose ruling on the matter will be modified or set aside only if “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see Fed.R.Civ.P. 72(a); Grimes v. City & Cnty. of San Francisco, 951 F.2d 236, 241 (9th Cir.1991). In reviewing for clear error, the district judge may not simply substitute his or her judgment for that of the magistrate judge. See Grimes, 951 F.2d at 241. Rather, a magistrate judge’s non-dispositive ruling is clearly erroneous only when the district court is left with a “definite and firm conviction that a mistake has been committed.” Burdick v. Comm’r Internal Rev. Serv., 979 F.2d 1369, 1370 (9th Cir.1992); see United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir.2001) (noting that a magistrate judge’s decisions with regard to discovery disputes and other non-dispositive matters are entitled to great deference). “[A]ny motion not listed [under § 636(b)(1)(A) ], nor analogous to a motion listed in this category, falls within the nondispositive group of matters which a magistrate may determine.” Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir.1990) (citations omitted). Samsung argues that the de novo standard applies here for two reasons: (1) magistrate judges lack inherent power to impose sanctions; and (2) Judge Grewal’s finding of spoliation and imposition of an adverse jury instruction in this case constitutes a dispositive sanction under 28 U.S.C. § 636(b)(1)(B). A. Inherent Power to Sanction In sanctioning Samsung, Magistrate Judge Grewal relied on his “inherent power[ ] ... to levy appropriate sanctions against a party who prejudices its opponent through the spoliation of evidence that the spoliating party had reason to know was relevant to litigation.” Order, 881 F.Supp.2d at 1135. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.2006) (noting that spoliation sanctions can be imposed pursuant to either the court’s “inherent power” or"
},
{
"docid": "19302041",
"title": "",
"text": "(3) without ‘support in inferences that may be drawn from the facts in the record.’ ” Id. We may affirm the bankruptcy court’s ruling on any basis supported by the record. See, e.g., Heilman v. Heilman (In re Heilman), 430 B.R. 213, 216 (9th Cir. BAP 2010); FDIC v. Kipperman (In re Commercial Money Center, Inc.), 392 B.R. 814, 826-27 (9th Cir. BAP 2008); see also McSherry v. City of Long Beach, 584 F.3d 1129,1135 (9th Cir.2009). B. Standards of Review Relating to the First Dismissal Motion. The existence of the bankruptcy court’s jurisdiction is a question of law subject to de novo review. See Reebok Int’l, Ltd. v. Marnatech Enters., 970 F.2d 552, 554 (9th Cir.1992). “We review de novo the determination that service of process was sufficient.” Rubin v. Pringle (In re Focus Media, Inc.), 387 F.3d 1077, 1081 (9th Cir.2004). Ripeness is a question of law reviewed de novo. See Chang v. United States, 327 F.3d 911, 921 (9th Cir.2003); Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d 835, 849 (9th Cir.), amended by 312 F.3d 416 (9th Cir.2002). C. Standards of Review Relating to the Discovery Orders on Appeal. “We owe substantial deference to the bankruptcy court’s interpretation of its own orders and will not overturn that interpretation unless we are convinced that it amounts to an abuse of discretion.” Illinois Inv. Trust No. 92 7163 v. Allied Waste Indus., Inc. (In re Resource Tech. Corp.), 624 F.3d 376, 386 (7th Cir.2010); see also Bass v. First Pacific Networks, Inc., 79 F.3d 1152 at *1 n. 1 (9th Cir.1996) (unpublished decision); Rogers v. Alaska Steamship Co., 290 F.2d 116, 123 (1961). We review the refusal to impose discovery sanctions for an abuse of discretion. See Avery Dennison Corp. v. Allendale Mut. Ins. Co., 310 F.3d 1114, 1117 (9th Cir.2002). We review the bankruptcy court’s refusal to permit further discovery before ruling on a summary judgment motion for an abuse of discretion. Mackey v. Pioneer Nat’l Bank, 867 F.2d 520, 523 (9th Cir.1989); see also Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 705 (9th Cir."
},
{
"docid": "15301961",
"title": "",
"text": "had been able to discuss those materials with them. It therefore could never show prejudice. Further, even if the State could show prejudice, it is unlikely that this could serve as a ground for reversal of a grant of habeas. As we concluded in a very similar circumstance in Wharton, “ ‘the [State] will not be able to show, on appeal from the final decision [from the grant of the habeas petition] that [it] was unfairly prejudiced in the habeas proceeding as a result of [its] compliance.’ ” 127 F.3d at 1204 (quoting Jackson, 1 F.3d at 888). Because the protective order and the denial of the motion to reconsider the order satisfy the three requirements of the collateral order doctrine as articulated by the Supreme Court in Swint, we hold that the State’s appeal is properly before us. The district court’s denial of the motion to reconsider is “too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S. 541, 69 S.Ct. at 1226. III. Standard of Review A district judge may reconsider a magistrate’s order in a pretrial matter if that order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). We review a district court’s denial of a motion to reconsider a magistrate’s pretrial order under that same standard. See Kulas v. Flores, 255 F.3d 780, 783 (9th Cir.2001) (questions of law are reviewed de novo); see also Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir.1985) (noting court applies the “clearly erroneous” standard of review on appeal of a “non-dispositive pretrial motion such as a discovery motion”). IV. Legality of the Protective Order The State argues that the district court’s denial of the motion to reconsider conflicts with Ninth Circuit authority. We disagree. In declining to reconsider the magistrate’s protective order, the district court properly applied the law of this circuit- as set forth in our en banc decision in McDowell II. The protective order in McDowell I and II was virtually identical"
},
{
"docid": "19261184",
"title": "",
"text": "Oracle Corp., 254 F.R.D. 559, 563 (N.D.Cal. 2008). As the Ninth Circuit has explained: [t]he adverse inference sanction is based on two rationales, one evidentiary and one not. The evidentiary rationale is nothing more than the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document____ The other rationale for the inference has to do with its prophylactic and punitive effects. Allowing the trier of fact to draw the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial. Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991). To decide whether to impose an adverse inference sanction based on spoliation, several California district courts have adopted the Second Circuit’s test requiring that a party seeking such an instruction establish that: “(1) the party having control over the evidence had an obligation to preserve it; (2) the records were destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the party’s claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002) (followed by Cyntegra, Inc. v. Idexx Laboratories, Inc., 2007 WL 5193736, *2 (C.D. Cal. Sep. 21, 2007); In re Napster, 462 F.Supp.2d 1060, 1078 (N.D.Cal.2006); AmeriPride Svs., Inc. v. Valley Indus. Svc., Inc., 2006 WL 2308442, at *5, n. 6 (E.D.Cal. Aug. 9, 2006)). The “culpable state of mind” includes negligence. Residential Funding Corp., 306 F.3d at 108, quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y.1991); see also Unigard Sec. Ins. Co. v. Lakewood Eng’r & Mfg. Corp., 982 F.2d 363, 368-69, n. 2 (9th Cir.1992) (affirming exclusion of evidence for negligent destruction of evidence, specifically rejecting bad faith requirement); Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993) (“Surely a finding of bad faith will suffice, but so will simple notice of ‘potential relevance to the litigation.’ ”) (citation omitted.)"
},
{
"docid": "11466069",
"title": "",
"text": "other non-dispositive matters are entitled to great deference). “[A]ny motion not listed [under § 636(b)(1)(A) ], nor analogous to a motion listed in this category, falls within the nondispositive group of matters which a magistrate may determine.” Maisonville v. F2 America, Inc., 902 F.2d 746, 748 (9th Cir.1990) (citations omitted). Samsung argues that the de novo standard applies here for two reasons: (1) magistrate judges lack inherent power to impose sanctions; and (2) Judge Grewal’s finding of spoliation and imposition of an adverse jury instruction in this case constitutes a dispositive sanction under 28 U.S.C. § 636(b)(1)(B). A. Inherent Power to Sanction In sanctioning Samsung, Magistrate Judge Grewal relied on his “inherent power[ ] ... to levy appropriate sanctions against a party who prejudices its opponent through the spoliation of evidence that the spoliating party had reason to know was relevant to litigation.” Order, 881 F.Supp.2d at 1135. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir.2006) (noting that spoliation sanctions can be imposed pursuant to either the court’s “inherent power” or under Rule 37). In its Reply brief, Samsung argues for the first time that the Court’s review must be de novo because Judge Grewal lacked authority to enter the Adverse Inference Order. See Reply at 2-4. Although this Court ordinarily will not entertain an argument raised for the first time in a reply brief, Samsung’s challenge to the magistrate judge’s jurisdiction is sufficiently important to warrant the Court’s consideration. See United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 966-67 (9th Cir.2004) (“[A] district court’s duty to establish subject matter jurisdiction is not contingent upon the parties’ arguments.”). It is firmly established in the Ninth Circuit that “[a] federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence,” which includes the power “to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993) (citing Akiona v."
},
{
"docid": "5544208",
"title": "",
"text": "the moderators’ First Amendment right to anonymous internet speech. LiveJournal moved for summary judgment on the basis of the § 512(c) safe harbor. The district court granted LiveJ-ournal’s motion and denied Mavrix’s cross-motion for partial summary judgment, concluding that the § 512(c) safe harbor shielded LiveJournal from- .liability for copyright infringement. Mavrix timely appealed. II. We review de novo a district court’s grant of summary judgment. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014) (citing Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir.2013)). We must determine, “viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Id. The district court’s denial of a motion to reconsider a magistrate judge’s pretrial discovery order under Federal Rule of Civil Procedure 72(a) will be reversed only if “clearly erroneous or contrary to law.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004) (citing Osband v. Woodford, 290 F.3d 1036, 1041 (9th Cir. 2002)). III. A. The DMCA strikes a balance between the interests of “copyright holders in benefitting from their labor; ... entrepreneurs in having the latitude to invent new technologies without fear of being held liable if their innovations are used by others in unintended infringing ways; and those of the public iii having access [to] both .... ” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1037 (9th Cir. 2013). The DMCA balances these interests by requiring , service providers to take down infringing materials when copyright holders notify them of the infringement and by limiting service providers’ liability for unintentional infringement through several safe harbors. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). The DMCA established four safe harbors to “provide protection from liability for: (1) transitory digital network communications; (2) system caching; (3) information residing on systems or networks at the direction of users; and (4) information location tools.” Id. at 1076-77 (citing 17 U.S.C. § 512(a)-(d)). LiveJournal claimed protection from damages under"
},
{
"docid": "4118668",
"title": "",
"text": "overlap with the issues before the arbitrator and so cannot sensibly be addressed unless and until the arbitration award is final. C. Finally we turn to the sanction order. The District Court awarded Wells Fargo a jury instruction after it found that “the evidence ... tends to show [Johnson] willfully reformatted] his hard drives,” thereby destroying documents that Wells Fargo was seeking in discovery. The instruction would ask the jury to determine if documents had been destroyed by Johnson and, if the jury so found, the instruction would “creat[e] a presumption in favor of[Wells Fargo] that the spoliated evidence was unfavorable to [Johnson]....” “We review the district court’s imposition of spoliation sanctions for an abuse of discretion.... The district court’s factual findings, including findings of bad faith and prejudice, are reviewed for clear error.” Leon v. IDX Sys. Corp., 464 F.3d 951, 957-58 (9th Cir.2006). “The district court’s credibility determinations are entitled to special deference.” Id. “[W]e do not disturb the district court’s choice of sanction unless we have a definite and firm conviction that the district court committed a clear error of judgment.” Id. at 961 (quotation omitted). We cannot conclude that the District Court abused its discretion or otherwise erred in ordering this sanction. Indeed, the District Court’s sanction, which permits the jury to decide if any documents were destroyed when Johnson’s hard drives were reformatted, strikes us as precisely the kind of flexible and resourceful sanction order that district judges should be encouraged to craft. We therefore affirm the sanction order. IV. CONCLUSION For the foregoing reasons, we reverse and remand with instructions for the District Court to consider Johnson’s motion to confirm the arbitrator’s award and Wells Fargo’s motion to vacate it under the standards provided by the Federal Arbitration Act. We affirm the District Court’s grant of summary judgment to Wells Fargo on Johnson’s RESPA claim and on his negligence claim. We also affirm the sanction order. Each side shall bear its own costs on this appeal. AFFIRMED IN PART; REVERSED AND REMANDED IN PART. . The subsequent references to the rulings of the \"District"
},
{
"docid": "15301962",
"title": "",
"text": "Cohen, 337 U.S. 541, 69 S.Ct. at 1226. III. Standard of Review A district judge may reconsider a magistrate’s order in a pretrial matter if that order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). We review a district court’s denial of a motion to reconsider a magistrate’s pretrial order under that same standard. See Kulas v. Flores, 255 F.3d 780, 783 (9th Cir.2001) (questions of law are reviewed de novo); see also Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir.1985) (noting court applies the “clearly erroneous” standard of review on appeal of a “non-dispositive pretrial motion such as a discovery motion”). IV. Legality of the Protective Order The State argues that the district court’s denial of the motion to reconsider conflicts with Ninth Circuit authority. We disagree. In declining to reconsider the magistrate’s protective order, the district court properly applied the law of this circuit- as set forth in our en banc decision in McDowell II. The protective order in McDowell I and II was virtually identical to the protective order in this case. The order “stat[ed] that the Attorney General could use any documents produced from the trial counsel’s file only for purposes of the pending habeas litigation.” McDowell II, 197 F.3d at 1254. “By the terms of the order,- this restriction was to continue in effect after the conclusion of the habeas proceedings and would apply ‘in the event of a-retrial of all or any portion of [the petitioner’s] criminal case.’ ” Id. After the district court granted the writ of habeas corpus and reaffirmed that the order was to remain in effect, the State filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e), arguing that the order was improper. On appeal from the denial of that motion, a three-judge panel of this court agreed with the State that the protective order “misapprehended the law regarding the scope of the attorney-client privilege and was thus an unintentional abuse of discretion.” McDowell I, 173 F.3d at 1191. In the panel’s view, the district court’s order constituted “an unwarranted"
},
{
"docid": "22453975",
"title": "",
"text": "employment records; post the “enclosed Notice to Employees in a conspicuous place;” “[c]omply with all the terms and provisions of the Notice;” and refrain from future retaliation against Leon. The enclosed Notice stated, inter alia, that IDX “agrees it will not discharge or in any manner discriminate against any employee” who files a complaint under SOX. Leon timely appealed the dismissal of his action and the monetary sanction. IDX timely appealed the district court’s denials of the injunction and the motion for reconsideration. STANDARD OF REVIEW We review the district court’s imposition of spoliation sanctions for an abuse of discretion. Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir.1995) (applying the abuse of discretion standard to sanctions levied pursuant to Fed.R.Civ.P. 37 as well as to sanctions issued pursuant to the court’s “inherent power”). The district court’s factual findings, including findings of bad faith and prejudice, are reviewed for clear error. Id.; see also Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.1985). “[T]he district court’s credibility determinations are entitled to special deference.” Anheuser-Busch, 69 F.3d at 348(citation omitted). Issues of law underlying the district court’s denial of injunc-tive relief, including the determination that a party’s claims are not barred by res judicata, are reviewed de novo. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach (In re Am. Cont’l Corp./Lincoln Sav. & Loan Sec. Litig.), 102 F.3d 1524, 1535 (9th Cir.1996), rev’d on other grounds, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998). DISCUSSION I. The Dismissal Sanction There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who “fails to obey an order to provide or permit discovery.” Fjelstad, 762 F.2d at 1337-38; Fed. R. Crv. P. 37(b)(2)(C). In this case, the district court relied on its “inherent authority” in sanctioning Leon because Leon’s conduct was not in violation of any discovery order governed by"
},
{
"docid": "12014307",
"title": "",
"text": "result of the delay. After an eleven-day trial, the jury found that the contract had not caused any delay and that Kaiser had therefore suffered no injury. Kaiser appeals. First, Kaiser appeals the entry of judgment on the jury’s verdict on its Section One claim, contending that the district court made several erroneous evidentiary rulings. Second, Kaiser appeals the MDL court’s grant of summary judgment to Abbott on its Section Two claim. For the reasons that follow, we affirm the California district court’s judgment on the jury’s verdict on Kaiser’s Section One claim. We reverse the MDL court’s grant of summary judgment on Kaiser’s Section Two claim. III. Standard of Review We review a grant of summary judgment de novo. Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 912 (9th Cir.2008). We review the trial court’s evidentiary rulings for abuse of discretion. Hoffman v. Constr. Prot. Servs., Inc., 541 F.3d 1175, 1178 (9th Cir.2008). IV. Discussion A. Section One Restraint-of-Trade Claim Section One of the Sherman Act makes unlawful “[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce among the several States.” 15 U.S.C. § 1. The MDL court held that Abbott and Geneva’s agreement was a per se violation of Section One before transferring the case back to the California district court for trial. We do not revisit that holding. 1. Trial Court’s Evidentiary Rulings Kaiser challenges several evidentia-ry rulings made by the district court during the trial of Kaiser’s Section One restraint-of-trade claim against Abbott and Geneva. We reverse an evidentiary ruling only if we find “that the district court abused its discretion and that the error was prejudicial.” Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1195 (9th Cir.2001). We hold that all of Kaiser’s eviden-tiary challenges fail and affirm the district court’s entry of judgment against Kaiser. a. Advice-of-Counsel Defense Kaiser first challenges a ruling that prevented it from discovering privileged opinions of Geneva’s counsel. Kaiser sought these opinions in order to counter what Kaiser portrayed as Geneva’s advice-of-counsel defense. Abbott and Geneva presented evidence at trial that"
},
{
"docid": "3040452",
"title": "",
"text": "court found that AT & T had demonstrated non-discriminatory reasons for its actions, and thus dismissed the retaliation claim. Id. Sánchez now appeals the denial of his request for additional discovery and the grant of summary judgment for AT & T. AT & T, in addition to arguing that the judgment below should be upheld, has moved for sanctions against Sánchez and his attorneys for what AT & T claims are Sanchez’s misstatements of the record. II. Discussion Sánchez makes two main arguments on appeal. First, he argues that the district court erred by not granting his request for additional discovery under Fed.R.Civ.P. 56(f). Second, he argues that the district court committed procedural and substantive errors in granting summary judgment to AT & T. We first address the Rule 56(f) issue. We then address Sánchez’s various challenges to the grant of summary judgment. A. Standard of Review We review a district court’s denial of a request for additional discovery under Rule 56(f)—as it existed in 2009— for abuse of discretion. See Mir-Yepez v. Banco Popular de P.R., 560 F.3d 14, 15 (1st Cir.2009). Under the abuse of discretion standard, we will not reverse a district court’s discovery order unless it appears that the order “was plainly wrong and resulted in substantial prejudice to the aggrieved party.” Universal Commc’n. Sys. v. Lycos, Inc., 478 F.3d 413, 425 (1st Cir.2007) (quoting Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 38 (1st Cir.2000)). We review a district court’s grant of summary judgment de novo, “resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the nonmoving party.” Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir.2011). “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Cortes-Rivera v. Dep’t of Corr. & Rehab, of P.R., 626 F.3d 21, 26 (1st Cir.2010). “[W]e are not married to the trial court’s reasoning but, rather, may affirm on any independently sufficient ground made manifest by the record.” Cahoon v. Shelton, 647 F.3d 18, 22 (1st Cir.2011)."
},
{
"docid": "5544207",
"title": "",
"text": "LiveJournal alleging copyright infringement on the basis of twenty Mavrix photographs posted on ONTD. ONTD posted the photographs in seven separate posts between 2010 and 2014. Some of these photographs contained either a generic watermark or a specific watermark featuring Mavrix’s website “Mavrixonline.com.” To the best of his recollection, Delzer did not personally. approve the seven posts. LiveJournal has no technological means of determining which moderator approved any given post. Mav-rix did not utilize LiveJoumal’s notice and takedown procedure to notify LiveJournal of the infringements. When Mavrix filed this lawsuit, LiveJournal removed the posts. During discovery, Mavrix filed two motions to compel responses to its interrogatories seeking the identity of the ONTD moderators. The magistrate judge denied the first motion, finding that Mavrix had not met and conferred with LiveJournal in good faith. The magistrate judge denied the second motion to compel because Mav-rix failed to notify the anonymous monitors of the pending motion. Mavrix moved the district court for review of the magistrate judge’s order, which the district court denied on the basis of the moderators’ First Amendment right to anonymous internet speech. LiveJournal moved for summary judgment on the basis of the § 512(c) safe harbor. The district court granted LiveJ-ournal’s motion and denied Mavrix’s cross-motion for partial summary judgment, concluding that the § 512(c) safe harbor shielded LiveJournal from- .liability for copyright infringement. Mavrix timely appealed. II. We review de novo a district court’s grant of summary judgment. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014) (citing Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 954 (9th Cir.2013)). We must determine, “viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Id. The district court’s denial of a motion to reconsider a magistrate judge’s pretrial discovery order under Federal Rule of Civil Procedure 72(a) will be reversed only if “clearly erroneous or contrary to law.” Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004) (citing Osband v."
},
{
"docid": "11721134",
"title": "",
"text": "The district court denied Gail’s motion for reconsideration. Gail and Lincoln each moved for summary judgment on Gail’s remaining claims and Irwin’s cross- and counterclaims. The district court granted summary judgment in favor of Gail and Lincoln on Irwin’s claims and determined that Gail was entitled to all of the proceeds from Elizabeth’s life insurance policy. Irwin has not appealed those decisions. On March 2, 2011, the district court granted summary judgment in favor of Lincoln on Gail’s extra-contractual claims, finding that Lincoln acted in compliance with state insurance regulations. Gail now appeals that order, the August 10, 2010 summary judgment order, and the orders denying her motion to vacate and motion for reconsideration. II. JURISDICTION AND STANDARDS OF REVIEW The district court had jurisdiction under 28 U.S.C. §§ 1332(a) and 1446. We have jurisdiction under 28 U.S.C. § 1291. Review of the district court’s summary judgment rulings is de novo. Skydive Ariz., Inc. v. Quattrocchi 673 F.3d 1105, 1110 (9th Cir.2012) (citing Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., 618 F.3d 1025, 1031 (9th Cir.2010)). “[W]e must determine, viewing the evidence in the light most favorable to the non-moving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law.” Cruz v. Int’l Collection Corp., 673 F.3d 991, 996 (9th Cir.2012) (quoting Baccei v. United States, 632 F.3d 1140, 1145 (9th Cir.2011)) (internal quotation marks omitted). The denial of a request for a continuance of summary judgment pending further discovery is reviewed for an abuse of discretion. Asset Mktg. Sys., Inc. v. Gagnon, 542 F.3d 748, 754 (9th Cir.2008) (citing Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1417 (9th Cir.1987)). A district court abuses its discretion only if the party requesting a continuance can show that allowing additional discovery would have precluded summary judgment. Johnson v. Neilson (In re Slatkin), 525 F.3d 805, 810 (9th Cir.2008) (quoting Bank of Am., NT & SA v. PENGWIN, 175 F.3d 1109, 1118 (9th Cir.1999)). The district court’s refusal to reconsider or vacate summary judgment is also reviewed for an"
},
{
"docid": "4568108",
"title": "",
"text": "do so. The district judge was unpersuaded, concluding that the defendants had made hardly any effort, let alone extensive effort, to produce the documents they had been ordered to produce. The district judge granted default judgment against the Swiechs and Lewicki on January 11, 2013, denied defendants’ motion for a stay pending resolution of the case against the non-defaulting defendants, and entered final judgment awarding the damages on May 31. II. Discussion The defendants appeal the ' district judge’s imposition of harsher discovery sanctions and her grant of default judgment. The default judgment is what the defendants really care about. But they think they can show that the judgment was unreasonable by showing that the district judge’s overruling of the magistrate judge’s orders and imposition of harsher sanctions — violations of which drove the eventual entry of default — were an abuse of discretion. The defendants also appeal the district judge’s calculation of damages, her denial of their request for a damages hearing, and her denial of a stay pending resolution of the claims against the non-defaulting defendants. We provide the necessary facts as we go. A. The discovery sanctions Section 636 of the Federal Magistrates Act and Federal Rule of Civil Procedure 72(a) govern district court review of non-dispositive magistrate judge decisions. 28 TJ.S.C. § 636(b)(1)(A) (providing that a district judge “may reconsider any pretrial matter ... where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law”); Fed.R.Civ.P. 72(a) (“The district judge ... must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”) In short, the district judge reviews magis-irate-judge discovery decisions for clear error. See Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir.1997). We, in turn, review all of the district judge’s discovery-related sanction decisions only for an abuse of discretion. Dotson v. Bravo, 321 F.3d 663, 666 (7th Cir.2003). “We uphold any exercise of the district court’s discretion that could be considered reasonable, even if we might have resolved the question differently.” Maynard"
},
{
"docid": "12014306",
"title": "",
"text": "Noerr-Pennington doctrine immunized Abbott’s patent and litigation activity. In re Terazosin Hydrochloride Antitrust Litig., 335 F.Supp.2d 1336, 1370 (S.D.Fla.2004) (“In re Antitrust Litig. II”). The Eleventh Circuit reversed the district court’s finding of a per se violation under Section One. Valley Drug, 344 F.3d at 1304-06. It remanded to the district court, indicating that the district court might be able to find a per se violation if it reframed its analysis. Id. at 1311-13. On remand, the district court again found a per se violation of Section One. In re Terazosin Hydrochloride Antitrust Litig., 352 F.Supp.2d 1279, 1319-20 (S.D.Fla.2005) (“In re Antitrust Litig. III”). At that point, all plaintiffs except Kaiser settled their Section One claims. The MDL court then transferred Kaiser’s entire suit back to the Central District of California. Kaiser’s Section One claim went to trial on the issue of causation and damages. The jury was asked to decide whether Abbott and Geneva’s contract had delayed Geneva’s commercial sale of generic terazosin hydrochloride, and, if so, whether Kaiser had suffered damages as a result of the delay. After an eleven-day trial, the jury found that the contract had not caused any delay and that Kaiser had therefore suffered no injury. Kaiser appeals. First, Kaiser appeals the entry of judgment on the jury’s verdict on its Section One claim, contending that the district court made several erroneous evidentiary rulings. Second, Kaiser appeals the MDL court’s grant of summary judgment to Abbott on its Section Two claim. For the reasons that follow, we affirm the California district court’s judgment on the jury’s verdict on Kaiser’s Section One claim. We reverse the MDL court’s grant of summary judgment on Kaiser’s Section Two claim. III. Standard of Review We review a grant of summary judgment de novo. Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 912 (9th Cir.2008). We review the trial court’s evidentiary rulings for abuse of discretion. Hoffman v. Constr. Prot. Servs., Inc., 541 F.3d 1175, 1178 (9th Cir.2008). IV. Discussion A. Section One Restraint-of-Trade Claim Section One of the Sherman Act makes unlawful “[e]very contract, combination ..., or conspiracy,"
}
]
|
108559 | of the effective date of the plan” — to be an indication that “ ‘projected disposable income’ ... refers to income that a debtor reasonably expects to receive during the term of her plan.” Id. A number of other courts, including one circuit court recently, have applied Harda-cre’s reasoning in adopting the forward-looking approach. See, e.g., Coop v. Frederickson (In re Frederickson), 545 F.3d 652, 2008 WL 4693132 (8th Cir.2008); Hildebrand v. Petro (In re Petro), 395 B.R. 369 (6th Cir. BAP 2008); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir.BAP2007) (per curiam); In re Watson, 366 B.R. 523 (Bankr.D.Md.2007); In re Pak, 357 B.R. 549 (Bankr.N.D.Cal.2006), aff'd, 378 B.R. 257 (9th Cir.BAP2007), abrogated by REDACTED In re Grady, 343 B.R. 747 (Bankr.N.D.Ga. 2006); and In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006). Most courts applying this approach view Form B22C as presumptively correct regarding income. C. Courts adopting the mechanical approach To date, only one circuit court (other than a BAP) has adopted the mechanical approach. See Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008). There the court reasoned: The substitution of any data not covered by the § 1325(b)(2) definition in the “projected disposable income” calculation would render as surplusage the definition of “disposable income” found in § 1325(b)(2). There can be no reason for § 1325(b)(2) to exist other than to define the term “disposable income” as used in § | [
{
"docid": "11990222",
"title": "",
"text": "Opinion by Judge SILER; Partial Concurrence and Partial Dissent by Judge BEA. ORDER AND AMENDED OPINION ORDER The opinion in Maney v. Kagenveama, 527 F.3d 990 (9th Cir.2008) filed June 5, 2008, is amended as follows: insert <In re Pak, 378 B.R. 257, 267 (9th Cir.BAP 2007)> before <In re Jass, 340 B.R. 411, 415 (Bankr.D.Utah 2006)> at line 4 of the slip opinion on page 6373. OPINION SILER, Circuit Judge: Edward Maney, as Chapter 13 Trustee, appeals the bankruptcy court’s order confirming the plan of the debtor, Laura Kagenveama. He argues that the bankruptcy court erred by (1) calculating Ka-genveama’s “projected disposable income” by multiplying her “disposable income” over the “applicable commitment period” and (2) finding the five-year “applicable commitment period” inapplicable because Kagenveama’s resulting “projected disposable income” was a negative number. We affirm. I. Background In 2005, Kagenveama filed a petition for Chapter 13 protection in the bankruptcy court. In her filing she included the required Schedules A through J, a Statement of Financial Affairs, a Master Mailing List, and a Form B22C Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income. Schedules I and J listed Kagenvea-ma’s projected monthly income and expenses. Her Schedule I listed a monthly gross income of $6,168.21, with a monthly net income of $4,096.26. Her Schedule J listed monthly expenses of $2,572.37. Subtracting total monthly expenses from total monthly net income left Kagenveama with $1,523.89 in monthly income available to pay creditors. Kagenveama filed an amended Form B22C listing an average monthly gross income of $6,168.21 for the six months prior to her bankruptcy petition, yielding an annual income of $74,018.52. Because she was an above-median income debtor, § 1325(b)(3) required her to recalculate her expenses pursuant to § 707(b)(2). This recalculation produced a revised Form B22C listing her “disposable income” as a negative number:-$4.04. Kagenveama determined that her “projected disposable income” was a negative number because her “disposable income” was a negative number. Because her “projected disposable income” was a negative number, she would not be subject to the “applicable commitment period.” However, she voluntarily proposed a"
}
]
| [
{
"docid": "19133978",
"title": "",
"text": "as surplusage the definition of “disposable income” found in § 1325(b)(2). There can be no reason for § 1325(b)(2) to exist other than to define the term “disposable income” as used in § 1325(b)(1)(B). “If ‘disposable income’ is not linked to ‘projected disposable income’ then it is just a floating definition with no apparent purpose.” In re Alexander, 344 B.R. 742, 749 (Bankr.E.D.N.C.2006). The plain meaning of the word “projected,” in and of itself, does not provide a basis for including other data in the calculation because “projected” is simply a modifier of the defined term “disposable income.” Therefore, to give meaning to every word of § 1325(b), “disposable income,” as defined in § 1325(b)(2), must be “projected” in order to derive “projected disposable income.” Kagenveama, 541 F.3d at 872-73. The result of the “rear view mirror” approach under the facts of Kagenveama is that the debtor with actual disposable income during the life of the chapter 13 plan has no obligation to use that money to repay unsecured creditors. According to the Ninth Circuit if that is an unjust result, it is for Congress to remedy, not the courts. Several other courts have adopted the rear view mirror approach to disposable income. See, e.g., Mancl v. Chatterton (In re Mancl), 381 B.R. 537 (W.D.Wis.2008) (reversing the bankruptcy court and finding that “projected disposable income” was not a term having independent significance apart from the statutorily-defined term “disposable income,” but was simply debtors’ “disposable income” projected forward over the term of their plan); Musselman v. eCast Settlement Corp., 394 B.R. 801 (E.D.N.C.2008); In re Greer, 388 B.R. 889 (Bankr.C.D.Ill.2008); In re Austin, 372 B.R. 668 (Bankr.D.Vt.2007); In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006); In re Nance, 371 B.R. 358 (Bankr.S.D.Ill.2007); In re Hanks, 362 B.R. 494 (Bankr.D.Utah 2007); In re Kolb, 366 B.R. 802 (Bankr.S.D.Ohio 2007); In re Miller, 361 B.R. 224 (Bankr.N.D.Ala.2007); In re Tranmer, 355 B.R. 234 (Bankr.D.Mont.2006); In re Rotunda, 349 B.R. 324 (Bankr.N.D.N.Y.2006). Analysis It is axiomatic that the Court must look to the clear meaning of the statute. If the meaning is clear then the"
},
{
"docid": "13214376",
"title": "",
"text": "at 1130-31; In re Kibbe, 361 B.R. 302, 314 (1st Cir. BAP 2007) (per curiam); In re Petro, 395 B.R. 369, 376 (6th Cir. BAP 2008), because the expenses that are de ductible in determining his disposable income are as likely to rise unexpectedly between the dates of submission and approval as to fall (and his income, as in Kibbe and Petro, is as likely to fall as to rise). The use of the later date, which is consistent with the statutory language though not compelled by it, is more sensible. Cf. Kawitt v. United States, 842 F.2d 951, 953 (7th Cir.1988); City of Stilwell v. Ozarks Rural Electric Cooperative Corp., 166 F.3d 1064, 1072 (10th Cir.1999). We therefore agree with the Eighth Circuit in In re Frederickson, 545 F.3d 652, 659-60 (8th Cir.2008), that while the calculation of “disposable income” in the plan submitted by the debtor “is a starting point for determining the debtor’s ‘projected disposable income,’... the final calculation can take into consideration changes that have occurred in the debtor’s financial circumstances.” To the same effect, see In re Lanning, 545 F.3d 1269, 1278-82 (10th Cir.2008). In re Kagenveama, supra, 541 F.3d at 873-75, is to the contrary. There is disagreement among bankruptcy judges as well. Compare, e.g., In re Petro, supra, 395 B.R. at 376; In re Kibbe, supra, 361 B.R. at 314-15, and In re Hardacre, 338 B.R. 718, 722 (Bankr.N.D.Tex.2006), with, e.g., In re Austin, 372 B.R. 668, 677-78 (Bankr.D.Vt.2007); In re Nance, 371 B.R. 358, 362-65 (Bankr.S.D.Ill.2007), and In re Kolb, 366 B.R. 802, 812-17 (Bankr.S.D.Ohio 2007). But most of them have adopted the position we’re adopting. Although some judges, like the trustee in our case, call this the “forward-looking” approach, bankruptcy judges must not engage in speculation about the future income or expenses of the Chapter 13 debt- or. That would unsettle and delay the Chapter 13 process as well as exaggerate how accurately a person’s economic situation in five years can be predicted. But in this case there is no speculation; all that is at issue is a fixed debt that"
},
{
"docid": "19145850",
"title": "",
"text": "income.” See Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008); In re Greer, 388 B.R. 889 (Bankr.C.D.Ill.2008); In re Mancl, 381 B.R. 537, 541-542 (W.D.Wis.2008); In re Alexander, 344 B.R. 742, 749 (Bankr.E.D.N.C.2006). The minority courts calculate “projected disposable income” by multiplying a debt- or’s disposable income, determined according to the formula set forth in Section 1325(b)(2), by the number of months in the applicable commitment period. “What is now considered ‘disposable’ is based upon historical data — current monthly income derived from the six-month period preceding the bankruptcy filing.... [I]n order to arrive at ‘projected disposable income,’ one simply takes the calculation mandated by § 1325(b)(2) and does the math.” Alexander, 344 B.R. at 749 (citations omitted). Under the minority approach, “[tjhere can be no reason for Section 1325(b)(2) to exist other than to define the term ‘disposable income’ as used in Section 1325(b)(1)(B).” Kagenveama, 541 F.3d at 873. Even if this formula produces unintended results, the minority asserts that it is the job of Congress to amend the statute, and not of the courts to look for a different interpretation. Id. at 875. See In re Nance, 371 B.R. 358, 367 (Bankr.S.D.Ill.2007) (“This Court acknowledges that its adoption of the strict, mechanical approach may lead to impractical results when a debtor’s ‘disposable income’ calculated on Form B22C does not accurately reflect the debtor’s actual income.... Unintended, impractical results are for Congress to address by amending the statute.”). 2. The Proper Approach is to Find That Form B22C Creates a Rebutta-ble Presumption of ‘Projected Disposable Income.” In the opinion of this court, the results obtained by the mechanical test urged by the minority may be far worse than impractical. First, this rote application of Section 1325(b)(1)(B) erases any meaning from the statute’s use of “projected.” The Court must give meaning to the word “projected,” as it obviously has independent significance. The word “projected” means “[t]o calculate, esti mate, or predict (something in the future), based on present data or trends.” Thus, the word “projected” is future-oriented. By definition under § 1325(b)(2), the term “disposable income” is"
},
{
"docid": "19145845",
"title": "",
"text": "debtor must commit all “projected disposable income to be received in the applicable commitment period” to her plan for payments to unsecured creditors. 11 U.S.C. § 1325(b)(1)(B) (emphasis added). The Trustee’s objection to confirmation turns on whether future earned income tax credits, received postpetition, are included in “projected disposable income.” In order to answer that question, the court must determine what effect the word “projected” has on the defined term “disposable income.” 1. Bankruptcy Courts Have Proposed Two Different Interpretations of “Projected Disposable Income.” Bankruptcy courts are split on how to define “projected disposable income.” A minority of courts have held that the term “projected” means that Congress intended the court to take the historic disposable income figure and multiply it by the number of months in the applicable commitment period. On the other hand, the majority of the bankruptcy judges who have considered the issue hold that projected disposable income is “based upon that income that debtor will receive during the applicable commitment period and not solely based upon the debtor’s pre-petition income average.” In re Edmunds, 350 B.R. 636, 646 (Bankr.D.S.C.2006) (emphasis added). See In re Frederickson, 545 F.3d 652 (8th Cir.2008); In re Petro, 395 B.R. 369 (6th Cir. BAP 2008); In re Lanning, 380 B.R. 17, 24-25 (10th Cir. BAP 2007); Kibbe, 361 B.R. at 312; In re Liverman, 383 B.R. 604, 610 (Bankr.D.N.J.2008); In re Purdy, 373 B.R. 142 (Bankr.N.D.Fla.2007); In re Slusher, 359 B.R. 290, 297-298 (Bankr.D.Nev.2007); In re Risher, 344 B.R. 833, 836 (Bankr.W.D.Ky.2006); In re Hardacre, 338 B.R. 718, 723 (Bankr.N.D.Tex.2006). These courts have found that the term “projected” is a forward-looking term, in contrast with the historic nature of the formula used for “disposable income.” Frederickson, 545 F.3d 652, 658-59; Kibbe, 361 B.R. at 312; Slusher, 359 B.R. at 297. “The significance of the word ‘projected’ is that it requires the Court to consider both future and historical finances of a debtor in determining compliance with § 1325(b)(1)(B).” In re Jass, 340 B.R. 411, 416 (Bankr.D.Utah 2006). Many of the courts in the majority camp specifically hold that the Form B22C"
},
{
"docid": "11848245",
"title": "",
"text": "In other words, to derive “projected disposable income” post-BAPCPA, one simply calculates “disposable income” according to § 1325(b)(2) and then “projects” it out by multiplying “disposable income” by the number of months in the applicable commitment period. In re Alexander, 344 B.R. at 749. Thus, Congress’s changes to § 1325(b) did not alter the historical tie between the concepts of “projected disposable income” and “disposable income.” See In re Kagenveama, 541 F.3d at 873-74 (citing In re Anderson, 21 F.3d 355, 357 (9th Cir.1994)); In re Alexander, 344 B.R. at 749. Instead, “[a]ny change in how ‘projected disposable income’ is calculated only reflects the changes dictated by the new ‘disposable income’ calculation; it does not change the relationship of ‘projected disposable income’ to ‘disposable income.’ ” In re Kagenveama, 541 F.3d at 873-74. The forward looking approach adopted by the competing line of cases takes a different view of how to determine “projected disposable income.” Following the lead of the court in In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006), courts adopting this approach do not read § 1325(b)(1)(B) and § 1325(b)(2) to compel determination of a “projected disposable income” figure based solely on historic income. Instead, courts have in a variety of ways held that “projected” modifies “disposable income” in § 1325(b)(1)(B), requiring a forward looking inquiry to determine what a debtor’s “projected disposable income” will be during the pendency of the Chapter 13 plan. See, e.g., In re Kibbe, 361 B.R. 302, 312-14 (1st Cir. BAP 2007); In re Pak, 378 B.R. 257, 264 (9th Cir. BAP 2007), abrogated by In re Kagenveama, 541 F.3d 868; In re Banning, 380 B.R. 17, 24-25 (10th Cir. BAP 2007); In re Wilson, 2008 WL 619196, *13, 2008 Bankr.LEXIS 769, *47-48 (Bankr.M.D.N.C.2008); In re Briscoe, 374 B.R. 1, 16 (Bankr.D.D.C. 2007); In re Slusher, 359 B.R. 290, 297-300 (Bankr.D.Nev.2007); In re Jass, 340 B.R. 411, 415-16 (Bankr.D.Utah 2006); In re Hardacre, 338 B.R. at 723; In re Fuller, 346 B.R. 472, 485 (Bankr.S.D.Ill.2006). Courts on this side of the divide reason that Congress’s placement of the word “projected” in § 1325(b)(1)(B) was"
},
{
"docid": "23205626",
"title": "",
"text": "of disposable income accordingly. Because Nowlin’s proposed plan did not include all of her “projected disposable income” in payments to creditors following the repayment of her 401(k) loan, which was reasonably certain to occur on or before the twenty-fourth month of her sixty-month plan, the bankruptcy court properly denied confirmation under § 1325(b)(1). The district court’s judgment is AFFIRMED. . See 11 U.S.C. § 707(b)(2) (requiring use of the National Standards and Local Standards determined by the IRS). These standard deductions vary by region and are currently available at http://www.usdoj.gov/ust/eo/ bapcpa/meanstesting.htm. . The form itself lists a monthly disposable income of $28.67, but Nowlin admitted the number was off by $10.00 due to an inadvertent error. . Nowlin listed the Trustee’s fee at $930.15 and the priority claims of her bankruptcy attorney and the IRS at $1,000 and $7,955.66, respectively. Thus, of the proposed payments totaling $11,700, only $1,814.19 was left for general unsecured creditors. . The new sum was $9,023.40. Also, the Trustee’s fee was reduced in the amended plan to $696.15. . A debtor is above-median if her annualized CMI is greater than a state-specific standard for income. § 1325(b)(3). . The BAPCPA changed this subparagraph to apply projected disposable income (1) to unsecured creditors specifically, and (2) for the applicable commitment period, which now can vary depending on the debtor’s classification as above- or below-median. See § 1325(b)(4). . The filing of the petition sets the date from which the historically oriented \"current monthly income” is determined. See 11 U.S.C. § 101(10A). . Several lower courts have adopted the forward-looking approach. See, e.g., Hildebrand v. Petro (In re Petro), 395 B.R. 369, 377 (6th Cir.BAP 2008); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302, 314-15 (1st Cir.BAP 2007); In re Jass, 340 B.R. 411, 415 (Bankr.D.Utah 2006); In re Hardacre, 338 B.R. 718, 723 (Bankr.N.D.Tex.2006). Others have adopted the mechanical approach. See, e.g., In re Austin, 372 B.R. 668, 680 (Bankr.D.Vt.2007); In re Kolb, 366 B.R. 802, 817-18 (Bankr.S.D.Ohio 2007); In re Alexander, 344 B.R. 742, 749 (Bankr.E.D.N.C.2006); In re Barr, 341 B.R. 181, 185 (Bankr.M.D.N.C.2006)."
},
{
"docid": "12162363",
"title": "",
"text": "disposable income” should be calculated based on the realities of the debtor’s circumstances as of confirmation and as reasonably anticipated to be during the length of the plan); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir. BAP 2007) (the term “projected disposable income” for below-median income debtors is forward looking and reality based); In re Lanning, 380 B.R. 17 (10th Cir. BAP 2007) (holding the same for above-median income debtors); In re Liverman, 383 B.R. 604 (Bankr.D.N.J.2008); In re DeThample, 390 B.R. 716 (Bankr.D.Kan.2008); In re Briscoe, 374 B.R. 1 (Bankr.D.Dist.Col.2007); In re McCarty, 376 B.R. 819 (Bankr.N.D.Ohio 2007); In re Fuller, 346 B.R. 472 (Bankr.S.D.Ill.2006); In re Hardacre, 338 B.R. 718, 722 (Bankr.N.D.Tex.2006); In re Casey, 356 B.R. 519 (Bankr.E.D.Wash.2006); but see Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008) (the term “projected disposable income” is not a forward looking concept). Whether a debtor may deduct payments for collateral the debtor intends to surrender is an issue that affects only the calculation of disposable income under § 1325(b)(2). This Panel notes that projected disposable income under § 1325(b)(1)(B) will match disposable income under § 1325(b)(2) if the debtor’s income and expenses remain consistent from a date six months prior to filing through the effective date of the plan. In those cases, the amount of money available for unsecured creditors will correlate with “monthly disposable income” as reflected on line 58 of the Form 22C. However, where debtor’s income and expenses have changed, as reflected by debtor’s Schedules I and J, the amount available for unsecured creditors from “projected disposable income” may be more or less than that reflected in line 58 of Form 22C, depending on the changed circumstances of the debtor. For example, if the debtor’s Schedule J reflects a rental expense rather than a mortgage payment, and the plan makes no provision for payment of a mortgage, the calculation of projected disposable income will not include a deduction for a house the debtor intends to surrender, even though the debtor took the deduction under the means test set forth in §"
},
{
"docid": "11848246",
"title": "",
"text": "read § 1325(b)(1)(B) and § 1325(b)(2) to compel determination of a “projected disposable income” figure based solely on historic income. Instead, courts have in a variety of ways held that “projected” modifies “disposable income” in § 1325(b)(1)(B), requiring a forward looking inquiry to determine what a debtor’s “projected disposable income” will be during the pendency of the Chapter 13 plan. See, e.g., In re Kibbe, 361 B.R. 302, 312-14 (1st Cir. BAP 2007); In re Pak, 378 B.R. 257, 264 (9th Cir. BAP 2007), abrogated by In re Kagenveama, 541 F.3d 868; In re Banning, 380 B.R. 17, 24-25 (10th Cir. BAP 2007); In re Wilson, 2008 WL 619196, *13, 2008 Bankr.LEXIS 769, *47-48 (Bankr.M.D.N.C.2008); In re Briscoe, 374 B.R. 1, 16 (Bankr.D.D.C. 2007); In re Slusher, 359 B.R. 290, 297-300 (Bankr.D.Nev.2007); In re Jass, 340 B.R. 411, 415-16 (Bankr.D.Utah 2006); In re Hardacre, 338 B.R. at 723; In re Fuller, 346 B.R. 472, 485 (Bankr.S.D.Ill.2006). Courts on this side of the divide reason that Congress’s placement of the word “projected” in § 1325(b)(1)(B) was inten tional and, further, that it was done to give “projected disposable income” a different meaning from “disposable income” as defined by § 1325(b)(2). See, e.g., In re Briscoe, 374 B.R. at 14-16; In re Hardacre, 338 B.R. at 723. This is because Congress could have used the phrase “disposable income” in § 1325(b)(1)(B) but chose to use “projected disposable income” instead. Adherents of the forward looking approach uniformly conclude that the two terms must have different meanings, usually reasoning that because “projected” has a “forward looking” connotation it “was intended to signal a reexamination of income potential over the life of the plan.” In re Kibbe, 361 B.R. at 307-08; see also In re Pak, 378 B.R. at 267 (holding § 1325(b)(2) “disposable income” calculations “must be subject to the presentation of contrary evidence before confirmation of a debtor’s chapter 13 plan”) abrogated by In re Kagenveama, 541 F.3d 868. On the other side, courts following the multiplicative approach urge such an interpretation violates the fundamental canon of statutory construction that courts must give"
},
{
"docid": "23205627",
"title": "",
"text": "debtor is above-median if her annualized CMI is greater than a state-specific standard for income. § 1325(b)(3). . The BAPCPA changed this subparagraph to apply projected disposable income (1) to unsecured creditors specifically, and (2) for the applicable commitment period, which now can vary depending on the debtor’s classification as above- or below-median. See § 1325(b)(4). . The filing of the petition sets the date from which the historically oriented \"current monthly income” is determined. See 11 U.S.C. § 101(10A). . Several lower courts have adopted the forward-looking approach. See, e.g., Hildebrand v. Petro (In re Petro), 395 B.R. 369, 377 (6th Cir.BAP 2008); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302, 314-15 (1st Cir.BAP 2007); In re Jass, 340 B.R. 411, 415 (Bankr.D.Utah 2006); In re Hardacre, 338 B.R. 718, 723 (Bankr.N.D.Tex.2006). Others have adopted the mechanical approach. See, e.g., In re Austin, 372 B.R. 668, 680 (Bankr.D.Vt.2007); In re Kolb, 366 B.R. 802, 817-18 (Bankr.S.D.Ohio 2007); In re Alexander, 344 B.R. 742, 749 (Bankr.E.D.N.C.2006); In re Barr, 341 B.R. 181, 185 (Bankr.M.D.N.C.2006). . Anderson relied on a decision of our court, Commercial Credit Corp. v. Killough (In re Killough), 900 F.2d 61 (5th Cir.1990), in which we interpreted § 1325(b)(1)(B) to require the two-step analysis adopted by Anderson. In Killough, we observed that, ”[f]or practical purposes, [projecting the debt- or's income] is usually accomplished by multiplying the debtor's monthly income by [the plan’s term].” Id. at 64 (emphasis added). We did not mandate that a simple multiplication of disposable income by the plan’s term is the final result in all cases. Killough is consistent with the approach we adopt today, using the disposable income calculation as a starting point, but allowing consideration of other circumstances when projecting the debtor's income. . Nowlin also argues that Congress knows how to create a presumption, and did not use appropriate language in § 1325(b)(2) to do so. See also Kagenveama, 541 F.3d at 874 (making the same argument). The Ninth Circuit further reasoned that the BAPCPA’s modification of \"disposable income” to make the calculation more objective by use of means"
},
{
"docid": "1974262",
"title": "",
"text": "can take into consideration changes that have occurred in the debtor’s financial circumstances as well as the debtor’s actual income and expenses as reported on Schedules I and J.” Id. This position has considerable support, as it takes into account the actual income and expenses of the debtor at the time of confirmation. Despite its broad appeal and following, however, there is also a fair amount of opposition to the Frederickson (realistic) approach. The Ninth Circuit has held that “projected disposable income” is not a forward-looking concept, In re Kagen-veama, 541 F.3d 868, 871-872 (9th Cir.2008). It stated that the term “projected” modifies “disposable income” and is not synonymous with the word “anticipated” in this context. Id. at 874. “Projected disposable income” means “disposable income,” as defined by Section 1325(b)(2), projected over the “applicable commitment period.” Id. at 872. In turn, for debtors with above median income, the “amounts reasonably necessary to be expended” are determined in accordance with Section 707(b)(2). Id. at 872 n. 1. Thus, “BAPC-PA replaced the old definition of what was ‘reasonably necessary with a formulaic approach for above-median debtors.” Id. at 873 n. 2. Burbank, 401 B.R. at 73-74 (footnotes omitted). The court in Burbank adopted the holding of the Ninth Circuit in Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008). While recognizing that the result is unfavorable to unsecured creditors, it concluded that it was bound to follow the plain language of the statute, which does not produce an absurd result. Burbank, 401 B.R. at 74-75 (citing Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004), and Kagenveama, 541 F.3d at 875). The bankruptcy court was not unmindful of the decision in Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir. BAP 2007), in which the Panel adopted the realistic approach. It distinguished Kibbe, however, stating the following: ... Kibbe differs from the present case in two important respects: (1) the debt- or in Kibbe was a below-median income debtor, and (2) that court dealt with the income component of the means test,"
},
{
"docid": "19931597",
"title": "",
"text": "Most courts applying this approach view Form B22C as presumptively correct regarding income. C. Courts adopting the mechanical approach To date, only one circuit court (other than a BAP) has adopted the mechanical approach. See Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008). There the court reasoned: The substitution of any data not covered by the § 1325(b)(2) definition in the “projected disposable income” calculation would render as surplusage the definition of “disposable income” found in § 1325(b)(2). There can be no reason for § 1325(b)(2) to exist other than to define the term “disposable income” as used in § 1325(b)(1)(B). “If ‘disposable income’ is not linked to ‘projected dis posable income’ then it is just a floating definition with no apparent purpose.” In re Alexander, 344 B.R. 742, 749 (Bankr.E.D.N.C.2006). The plain meaning of the word “projected,” in and of itself, does not provide a basis for including other data in the calculation because “projected” is simply a modifier of the defined term “disposable income.” Therefore, to give meaning to every word of § 1325(b), “disposable income,” as defined in § 1325(b)(2), must be “projected” in order to derive “projected disposable income.” Id. at 872-73. Regarding the pre-BAPC-PA treatment of “projected disposable income,” the court concluded that [a]ny change in how “projected disposable income” is calculated only reflects the changes dictated by the new “disposable income” calculation; it does not change the relationship of “projected disposable income” to “disposable income.” Pre-BAPCPA, “projected disposable income” was determined by taking the debtor’s “disposable income,” under § 1325(b)(2)(A) & (B), and projecting that amount over the “applicable commitment period.” Id. at 873 (footnote omitted). The court refused to “read the word ‘projected’ to be synonymous with the word ‘anticipated’ in this context.” Id. at 874. In addition to Kagenveama, a number of bankruptcy courts have adopted the mechanical approach. See, e.g., In re Austin, 372 B.R. 668 (Bankr.D.Vt.2007); In re Kolb, 366 B.R. 802 (Bankr.S.D.Ohio 2007); In re Hanks, 362 B.R. 494 (Bankr.D.Utah 2007); In re Miller, 361 B.R. 224 (Bankr. N.D.Ala.2007); In re Tranmer, 355 B.R. 234"
},
{
"docid": "19133974",
"title": "",
"text": "Jass, 340 B.R. 411 (Bankr.D.Utah 2006); In re McGuire, 342 B.R. 608 (Bankr.W.D.Mo.2006). When the First Circuit Bankruptcy Appellate Panel in In re Kibbe adopted the crystal ball approach it explained: Attaching the word “projected” to a historical calculation assumes, without justification, that a debtor’s circumstances will not change after the date of case commencement or during the plan commitment period. Life informs otherwise. Insofar as the term “disposable income” demands a look back and the term “projected” requires a look forward, the language is irreconcilable.... One must give way to the other, or the courts must fashion an interpretation that gives the greatest meaning to both. In re Kibbe, 361 B.R. at 313 (footnote omitted). The court in In re Kibbe, also examined the legislative history of the BAPCPA and noted that Congressional intent was to ensure that debtors repay to their unsecured creditors what they can afford. Id. at 314. Therefore, the crystal ball approach to “projected disposable income” arguably furthers Congress’s intent that a debtor commit disposable income to repayment of creditors without leading to the absurd result that a debtor be required to repay more than they can afford, or an equally unintended result that a debtor who has post-petition disposable income need not commit that disposable income to the repayment of unsecured creditors because they had little or no disposable income prior to the petition date. This latter scenario was presented to the Ninth Circuit Court of Appeals in the case of Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008). The “rear view mirror” approach In Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008), the Ninth Circuit Court of Appeals held that a debtor’s “projected disposable income” under Section 1325(b) is not a forward-looking concept, but rather is synonymous with “disposable income” which is defined only in terms of historic income figures. This mechanical approach to the statute has also been called the “rear view mirror” approach. In Kagenveama, the debtor’s Schedule I listed monthly gross income of $6,168.21 (approximately $74,000 annually), and monthly net income of $4,096.26. Schedule"
},
{
"docid": "11854031",
"title": "",
"text": "U.S.C. § lOl(lOA). . 11 U.S.C. § 101(10A)(B). . Official Form 61, line 11. . See 6 Keith M. Lundin, Chapter 13 Bankruptcy § 467.1 at 467-3 to 467-12 (3d ed.2000 & Supp.2007-1) (describing, with flow chart, the five categories of exclusions and adjustments a debtor must make to get from CMI to disposable income). . See 11 U.S.C. § 1325(b)(2)(A)(I). . 11 U.S.C. § 1325(b)(3). . See Form 22C at line 58. . In re Kagenveama, 527 F.3d 990, 996 (9th Cir.2008), amended by 541 F.3d 868 (9th Cir. 2008) (citing In re Farrar-Johnson, 353 B.R. 224, 231 (Bankr.N.D.Ill.2006) (stating that \"[ejliminating flexibility was the point: the obligations of [C]hapter 13 debtors would be subject to 'clear, defined standards,’ no longer left 'to the whim of a judicial proceeding’ ”)). . Id. . BAPCPA's changes to § 1325 have been roundly criticized. As one author remarked, \"Conceptually and technically, BAPCPA corrupted the disposable income test in § 1325(b) in so many ways it takes restraint not to laugh and cry at the same time.” 6 Keith M. Lundin, Chapter 13 Bankruptcy § 466.1 at 466-1 (3d ed.2000 & Supp.2007-1). . E.g., In re Barfknecht, 378 B.R. 154, 158 n. 5 (Bankr.W.D.Tex.2007) (describing seven \"schools of thought” on calculation of PDI); In re Edmunds, 350 B.R. 636, 641-43 (Bankr. D.S.C.2006) (describing three “approaches” in case law but recognizing conflicts within each category); In re Mancl, 381 B.R. 537, 541-42 (W.D.Wis.2008) (describing minority and majority positions and adopting minority). . See, e.g., In re Mancl, 381 B.R. at 541-42; In re Alexander, 344 B.R. 742, 748-50 (Bankr. E.D.N.C.2006); In re Hanks, 362 B.R. 494, 498 (Bankr.D.Utah 2007). . In re Lanning, 380 B.R. 17 (10th Cir. BAP 2007); Pak v. eCast Settlement Corp. (In re Pak), 378 B.R. 257, 268 (9th Cir. BAP 2007); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302, 314-15 (1st Cir. BAP 2007); In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006). . In re Kagenveama, 527 F.3d 990 (9th Cir. 2008), amended by 541 F.3d 868 (9th Cir. 2008). . Id. at 995. . Anderson v."
},
{
"docid": "12162362",
"title": "",
"text": "in chapter 13. The Panel has not located any clearly expressed legislative intention that secured debt expenses deducted from the means test in chapter 7 should be different from secured debt expenses deducted from the disposable income test in chapter 13. Therefore, a chapter 13 debtor may deduct, for purposes of determining disposable income under § 1325(b)(2), payments for collateral the debtor intends to surrender. However, this holding does not resolve all of the issues in this case. The surrender issue is only relevant to a determination of the Debtors’ disposable income under § 1325(b)(2). This Panel finds that disposable income must then be compared to the Debtors’ projected disposable income, as reflected in Debtors’ income and expenses as of the effective date of the plan, as required by § 1325(b)(1)(B). This view is consistent with a growing body of case law holding that “projected disposable income” is forward looking and must be based on anticipated income over the life of the plan. See In re Petro, 395 B.R. 369 (6th Cir. BAP 2008) (“projected disposable income” should be calculated based on the realities of the debtor’s circumstances as of confirmation and as reasonably anticipated to be during the length of the plan); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir. BAP 2007) (the term “projected disposable income” for below-median income debtors is forward looking and reality based); In re Lanning, 380 B.R. 17 (10th Cir. BAP 2007) (holding the same for above-median income debtors); In re Liverman, 383 B.R. 604 (Bankr.D.N.J.2008); In re DeThample, 390 B.R. 716 (Bankr.D.Kan.2008); In re Briscoe, 374 B.R. 1 (Bankr.D.Dist.Col.2007); In re McCarty, 376 B.R. 819 (Bankr.N.D.Ohio 2007); In re Fuller, 346 B.R. 472 (Bankr.S.D.Ill.2006); In re Hardacre, 338 B.R. 718, 722 (Bankr.N.D.Tex.2006); In re Casey, 356 B.R. 519 (Bankr.E.D.Wash.2006); but see Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008) (the term “projected disposable income” is not a forward looking concept). Whether a debtor may deduct payments for collateral the debtor intends to surrender is an issue that affects only the calculation of disposable income under § 1325(b)(2)."
},
{
"docid": "19133972",
"title": "",
"text": "that Form B22C requires a rigid determination of projected disposable income based upon historic “current monthly income” figures. Affirming the bankruptcy court and bankruptcy appellate panel, the Tenth Circuit declined to adopt the chapter 13 trustee’s mechanical approach to a projected disposable income analysis. The court recognized that a mechanical calculation of disposable income based upon historical income figures “would be a fiction if, as of the effective date of the plan, the debtor had no realistic expectation of earning enough to produce the amount of ‘disposable income’ calculated on Form B22C.” Lanning, 545 F.3d at 1280. The court found that applying a mechanical approach which relies only on historic “current monthly income” would give little heed to forward-looking references in Section 1325(b) such as the phrases “as of the effective date of the plan,” “projected disposable income,” “to be received in the applicable commitment period,” and “will be applied to make payments.” Lanning, 545 F.3d at 1279-80. The court also noted that the relevant line items of Form B22C refer only to “disposable income,” not “projected disposable income,” which is the ultimate requirement to be met under Section 1325(b)(1). Ultimately, the Lanning court held that “as to the income side of the § 1325(b)(1)(B), the starting point for calculating the Chapter 13 debtor’s “projected disposable income” is presumed to be the debtor’s “current monthly income,” as defined in 11 U.S.C. § 101(10A)(I), subject to a showing of a substantial change in circumstances.” Lanning, 545 F.3d at 1282. Prior to Lanning, several courts had already adopted the forward-looking, a/k/a “crystal ball” approach to projected disposable income under Section 1325(b)(1). See, e.g., Coop v. Frederickson (In re Frederickson), 545 F.3d 652 (8th Cir.2008); Hildebrand v. Petro (In re Petro), 395 B.R. 369 (6th Cir. BAP 2008); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir. BAP 2007); eCast Settlement Corp. v. May (In re May), 381 B.R. 498 (Bankr.W.D.Pa.2008); In re French, 383 B.R. 402 (Bankr.W.D.Ky.2008); In re Watson, 366 B.R. 523 (Bankr.D.Md.2007); In re Grady, 343 B.R. 747 (Bankr.N.D.Ga.2006); In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006); In re"
},
{
"docid": "19133973",
"title": "",
"text": "not “projected disposable income,” which is the ultimate requirement to be met under Section 1325(b)(1). Ultimately, the Lanning court held that “as to the income side of the § 1325(b)(1)(B), the starting point for calculating the Chapter 13 debtor’s “projected disposable income” is presumed to be the debtor’s “current monthly income,” as defined in 11 U.S.C. § 101(10A)(I), subject to a showing of a substantial change in circumstances.” Lanning, 545 F.3d at 1282. Prior to Lanning, several courts had already adopted the forward-looking, a/k/a “crystal ball” approach to projected disposable income under Section 1325(b)(1). See, e.g., Coop v. Frederickson (In re Frederickson), 545 F.3d 652 (8th Cir.2008); Hildebrand v. Petro (In re Petro), 395 B.R. 369 (6th Cir. BAP 2008); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir. BAP 2007); eCast Settlement Corp. v. May (In re May), 381 B.R. 498 (Bankr.W.D.Pa.2008); In re French, 383 B.R. 402 (Bankr.W.D.Ky.2008); In re Watson, 366 B.R. 523 (Bankr.D.Md.2007); In re Grady, 343 B.R. 747 (Bankr.N.D.Ga.2006); In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006); In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006); In re McGuire, 342 B.R. 608 (Bankr.W.D.Mo.2006). When the First Circuit Bankruptcy Appellate Panel in In re Kibbe adopted the crystal ball approach it explained: Attaching the word “projected” to a historical calculation assumes, without justification, that a debtor’s circumstances will not change after the date of case commencement or during the plan commitment period. Life informs otherwise. Insofar as the term “disposable income” demands a look back and the term “projected” requires a look forward, the language is irreconcilable.... One must give way to the other, or the courts must fashion an interpretation that gives the greatest meaning to both. In re Kibbe, 361 B.R. at 313 (footnote omitted). The court in In re Kibbe, also examined the legislative history of the BAPCPA and noted that Congressional intent was to ensure that debtors repay to their unsecured creditors what they can afford. Id. at 314. Therefore, the crystal ball approach to “projected disposable income” arguably furthers Congress’s intent that a debtor commit disposable income to repayment of creditors"
},
{
"docid": "19931596",
"title": "",
"text": "than the prepetition average income”; an alternative interpretation, the court said, would render “to be received” superfluous. Id. And third, the court considered § 1325(b)(l)’s prefatory language — “as of the effective date of the plan” — to be an indication that “ ‘projected disposable income’ ... refers to income that a debtor reasonably expects to receive during the term of her plan.” Id. A number of other courts, including one circuit court recently, have applied Harda-cre’s reasoning in adopting the forward-looking approach. See, e.g., Coop v. Frederickson (In re Frederickson), 545 F.3d 652, 2008 WL 4693132 (8th Cir.2008); Hildebrand v. Petro (In re Petro), 395 B.R. 369 (6th Cir. BAP 2008); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir.BAP2007) (per curiam); In re Watson, 366 B.R. 523 (Bankr.D.Md.2007); In re Pak, 357 B.R. 549 (Bankr.N.D.Cal.2006), aff'd, 378 B.R. 257 (9th Cir.BAP2007), abrogated by Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008); In re Grady, 343 B.R. 747 (Bankr.N.D.Ga. 2006); and In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006). Most courts applying this approach view Form B22C as presumptively correct regarding income. C. Courts adopting the mechanical approach To date, only one circuit court (other than a BAP) has adopted the mechanical approach. See Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir. 2008). There the court reasoned: The substitution of any data not covered by the § 1325(b)(2) definition in the “projected disposable income” calculation would render as surplusage the definition of “disposable income” found in § 1325(b)(2). There can be no reason for § 1325(b)(2) to exist other than to define the term “disposable income” as used in § 1325(b)(1)(B). “If ‘disposable income’ is not linked to ‘projected dis posable income’ then it is just a floating definition with no apparent purpose.” In re Alexander, 344 B.R. 742, 749 (Bankr.E.D.N.C.2006). The plain meaning of the word “projected,” in and of itself, does not provide a basis for including other data in the calculation because “projected” is simply a modifier of the defined term “disposable income.” Therefore, to give meaning to"
},
{
"docid": "19145846",
"title": "",
"text": "In re Edmunds, 350 B.R. 636, 646 (Bankr.D.S.C.2006) (emphasis added). See In re Frederickson, 545 F.3d 652 (8th Cir.2008); In re Petro, 395 B.R. 369 (6th Cir. BAP 2008); In re Lanning, 380 B.R. 17, 24-25 (10th Cir. BAP 2007); Kibbe, 361 B.R. at 312; In re Liverman, 383 B.R. 604, 610 (Bankr.D.N.J.2008); In re Purdy, 373 B.R. 142 (Bankr.N.D.Fla.2007); In re Slusher, 359 B.R. 290, 297-298 (Bankr.D.Nev.2007); In re Risher, 344 B.R. 833, 836 (Bankr.W.D.Ky.2006); In re Hardacre, 338 B.R. 718, 723 (Bankr.N.D.Tex.2006). These courts have found that the term “projected” is a forward-looking term, in contrast with the historic nature of the formula used for “disposable income.” Frederickson, 545 F.3d 652, 658-59; Kibbe, 361 B.R. at 312; Slusher, 359 B.R. at 297. “The significance of the word ‘projected’ is that it requires the Court to consider both future and historical finances of a debtor in determining compliance with § 1325(b)(1)(B).” In re Jass, 340 B.R. 411, 416 (Bankr.D.Utah 2006). Many of the courts in the majority camp specifically hold that the Form B22C calculation creates a rebuttable presumption of “disposable income,” which can be supplemented by other evidence, if necessary, to determine “projected disposable income.” See Purdy, 373 B.R. at 152 (“A Chapter 13 debtor’s ‘projected disposable income,’ as calculated by Form B22C, will be presumed accurate unless the debtor or trustee can show that the numbers contained in Form B22C do not reflect a fair projection of the debtor’s budget into the future because the debtor has experienced a substantial change in circumstances.”); Jass, 340 B.R. at 418; In re May, 381 B.R. 498 (Bankr.W.D.Pa.2008). These courts reason that Section 1325(b)(l)’s requirement that “projected disposable income” be applied “as of the effective date of the plan” only makes sense if a debtor’s actual current income as of plan confirmation can be considered where a significant change from the historical CMI calculation is shown. “[Bjecause the debtor’s disposable income must be used to fund the plan, the term ‘projected’ was intended to signal a reexamination of income potential over the life of the plan.” Kibbe, 361 B.R. at"
},
{
"docid": "21248690",
"title": "",
"text": "special circumstances justify additional expenses or adjustments of current monthly income. However, this is a Chapter 13 case. Section 1325(b)(3) provides that expenses (but not income) shall be determined in accordance with § 707(b)(2). Hence, the Court must reject the Debtor’s argument that special circumstances may be considered in the context of confirmation of her plan. . 375 B.R. 829 (8th Cir. BAP 2007). . Id. at 832-33. . Id. . 11 U.S.C. § 1325(a)(1). . Cf., e.g., In re Kibbe, 361 B.R. 302, 312 (1st Cir. BAP 2007) (\" 'projected disposable income’ as set forth in § 1325(b)(1)(B) must be grounded in the Debtor’s anticipated income ... during the term of the plan”; \"Form B22C must at least be the starting point for any determination of 'projected disposable income’ ”); In re Pak, 357 B.R. 549, 552-53 (Bankr.N.D.Cal.2006) (\"[i]n determining whether a plan provides all of the debtor’s 'projected monthly income,’ a court should attempt to predict what the debtor's disposable income during the term of the plan will be, using the definition of 'current monthly income’ set forth in 11 U.S.C. § 101(10A)”); In re Casey, 356 B.R. 519, 522-23 (Bankr.E.D.Wash.2006) (\"the word 'projected' ... requires a court to examine anticipated disposable income rather than historical disposable income, estimated disposable income, or some other type of disposable income”); In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006) (in order to give meaning to the word \"projected,” the language of § 1325(b)(1)(B) means that \"the number resulting from Form B22C is a starting point for the Court's inquiry only ... The significance of the word 'projected' is that it requires the Court to consider both future and historical finances of a debtor in determining compliance with § 1325(b)(1)(B)''); In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006), with, e.g., In re Tranmer, 355 B.R. 234, 245-46 (Bankr.D.Mont.2006) (court holds it will apply a mechanical test); In re Alexander, 344 B.R. 742, 749 (Bankr.E.D.N.C.2006) (\"in order to arrive at ‘projected disposable income,' one simply takes the calculation mandated by § 1325(b)(2) [using Form B22C] and does the math”); In re Barr, 341 B.R."
},
{
"docid": "19931595",
"title": "",
"text": "a plan because she would be unable to commit the amount of disposable income calculated on Form B22C. Id. The Hardacre court offered three justifications in support of its conclusion that “ ‘projected disposable income’ must be based upon the debtor’s anticipated income during the term of the plan, not merely an average of her prepetition income.” Id. First, noting the rule of statutory construction that requires a court “to presume that ‘Congress acts intentionally when it includes particular language in one section of a statute but omits it in another,’ ” the court reasoned that “Congress must have intended ‘projected disposable income’ to be different than ‘disposable income’ ” when it chose to define only the latter term. Id. at 723 (quoting BFP v. Resolution Trust Corp., 511 U.S. 531, 537, 114 5.Ct. 1757, 128 L.Ed.2d 556 (1994)). Second, the court viewed the phrase “to be received” in § 1325(b)(1)(B) as an expression of congressional intent “to refer to the income actually to be received by the debt- or during the commitment period, rather than the prepetition average income”; an alternative interpretation, the court said, would render “to be received” superfluous. Id. And third, the court considered § 1325(b)(l)’s prefatory language — “as of the effective date of the plan” — to be an indication that “ ‘projected disposable income’ ... refers to income that a debtor reasonably expects to receive during the term of her plan.” Id. A number of other courts, including one circuit court recently, have applied Harda-cre’s reasoning in adopting the forward-looking approach. See, e.g., Coop v. Frederickson (In re Frederickson), 545 F.3d 652, 2008 WL 4693132 (8th Cir.2008); Hildebrand v. Petro (In re Petro), 395 B.R. 369 (6th Cir. BAP 2008); Kibbe v. Sumski (In re Kibbe), 361 B.R. 302 (1st Cir.BAP2007) (per curiam); In re Watson, 366 B.R. 523 (Bankr.D.Md.2007); In re Pak, 357 B.R. 549 (Bankr.N.D.Cal.2006), aff'd, 378 B.R. 257 (9th Cir.BAP2007), abrogated by Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868 (9th Cir.2008); In re Grady, 343 B.R. 747 (Bankr.N.D.Ga. 2006); and In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006)."
}
]
|
757730 | 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). All of these cases, with the exception of Sams, involved racial discrimination however. Sams concerned denial of equal protection to non-residents seeking staff privileges. Although all of the four cases are easily distinguishable on their facts it is fairly obvious that the Fourth Circuit would rule no differently faced with the facts of the instant case. . See REDACTED where the court said: “I recognize that the weight of authority holds that the acceptance of Hill-Burton funds is sufficient to cloak a private hospital and its medical staff with a mantle of state law.” Brieher was affirmed by the Court of Appeals for the First Circuit, 468 F.2d 1228 (1st Cir. 1972). The court there did not, however, review the “state action” determination of the trial judge. . See Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970). Cf. Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (N.D.Pa.1974). . The recent case of Jackson v. NortonChildrens Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974), would appear to overrule O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973). See also Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971) and Meredith v. Allen County War Memorial Hospital, 397 F.2d 33 (6th Cir. 1968). . See Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), apparently overruling | [
{
"docid": "966305",
"title": "",
"text": "the hospital staff carry malpractice insurance and then threatening to cancel and canceEing appellant’s policy solely because of his testimony in a medical malpractice case. The complaint also alleges that the defendants introduced false testimony at a trial in which appellant appeared as an expert medical witness in order to discredit his previous testimony. . Since “[t]he application of collateral estoppel in federal courts is no longer grounded upon the mechanical requirement of mutuality,” P. I. Enterprises, Inc. v. Cataldo, 457 F.2d 1012, 1015 (1st Cir. 1972), the defense is available to all parties in the present action. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Even if it could be argued that the insurance companies and defendants-attorneys Soden and Millham were not so related to the hospital as to be entitled to invoke the doctrine, we hold in any case that since there were no allegations of their participation in the challenged denial of reappointment and no other allegations coloring their actions with state law, no cause of action under § 1983 was made out as to those defendants. . Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to he subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” . Compare Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970) with Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971); Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020 (S.D.N.Y.1971); Wood v. Hogan, 215 F.Supp. 53 (W.D.Va.1963). . Appellant seeks to distinguish our decision in P. I. Enterprises by arguing that his constitutional claim"
}
]
| [
{
"docid": "13239061",
"title": "",
"text": "Hill-Burton funds is sufficient to cloak a private hospital and its medical staff with a mantle of state law.” Brieher was affirmed by the Court of Appeals for the First Circuit, 468 F.2d 1228 (1st Cir. 1972). The court there did not, however, review the “state action” determination of the trial judge. . See Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970). Cf. Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (N.D.Pa.1974). . The recent case of Jackson v. NortonChildrens Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974), would appear to overrule O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973). See also Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971) and Meredith v. Allen County War Memorial Hospital, 397 F.2d 33 (6th Cir. 1968). . See Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), apparently overruling Holmes v. Silver Cross Hospital, 340 F.Supp. 125 (N.D.Ill.1972). . See Stanturf v. Sipes, 335 F.2d 224 (8th Cir. 1964). . See Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973). Cf. Don v. Okmulgee Memorial Hospital, 443 F.2d 234 (10th Cir. 1971). . 407 F.2d at 81. . Grafton involved no racial discrimination. It can, therefore, be squared with the decisions in Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) and Jackson v. Statler, 496 F.2d 623 (2d Cir. 1974), both finding public financial assistance to comprise “state action”. Both, however, involved racial discrimination and consequently applied a less rigid standard. . 287 F.Supp. at 547-548. . Simkins, as has been previously stated, involved racial discrimination. . 492 F.2d at 101. . 329 F.Supp. at 1024 [Emphasis added]. Although the MulviMll opinion has been undermined somewhat by the passage of Public Health Law § 2801-b, discussed later in the opinion, its conclusions regarding the effect of Hill-Burton funding on the “state action” question remains just as well reasoned and convincing as it was in 1971. . See also Meredith v. Allen County War"
},
{
"docid": "16284331",
"title": "",
"text": "entered into a symbiotic relationship, in which the state has “so far insinuated itself into a position of interdependence with [the defendant] that it must be recognized as a joint participant in the challenged activity ..” Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961). Plaintiff contends that defendants acted “under color of” state law due to the fact that the Hospital received approximately 1.1 million dollars under the Hill-Burton Act when the Hospital was originally constructed. He relies upon a series of Fourth Circuit cases, Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Christhilf v. Annapolis Emergency Hospital Association, Inc., 496 F.2d 174 (4th Cir. 1974); Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974); Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638 (4th Cir. 1975), and an Eastern District of Pennsylvania case, Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970), in support of his contention. Essentially, those cases hold that the mere receipt of Hill-Burton funds carries with it the obligation to observe federal constitutional mandates such as the Due Process Clause of the Fourteenth Amendment. We decline to follow those cases for several reasons. First, all that plaintiff has shown is that the Hospital received Hill-Burton funds. No doubt, in connection with the acceptance of benefits under the Hill-Burton Act, the Hospital “agreed to abide by a variety of regulatory terms related both to its operations and to the use of the funds.” Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761 (7th Cir. 1973) (Stevens, J.). However, this general governmental involvement is far different from the almost complete physical and financial interdependence that existed between the private restaurant owner and the state in Burton. See, e. g., Hollenbaugh v. Carnegie Free Library, 545 F.2d 382 (3d Cir. 1976). Second, since we do not believe that the receipt of Hill-Burton funds created"
},
{
"docid": "18874278",
"title": "",
"text": "considered the issue in light of Jackson, and only the First Circuit has applied Jackson and found state action on the part of an ostensibly private hospital. Circuit decisions finding no state action despite participation in the Hill-Burton program are: Musso v. Suriano, 586 F.2d 59 (7th Cir. 1978); Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (3d Cir. 1978); Madry v. Sorel, 558 F.2d 303 (5th Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978); Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir. 1977); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Taylor v. St. Vincent’s Hospital, 523 F.2d 75 (9th Cir. 1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 (1976); and Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973) (pre-Jackson, only five percent of construction from Hill-Burton). The Sixth Circuit, which, like the Tenth Circuit, has not considered the issue in light of Jackson, apparently has adopted a flexible approach. Compare Jackson v. Norton—Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974) (no state action where only involvement was Hill-Burton participation and general state regulations governing hospitals), with O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) (state action based on Hill-Burton participation, as well as facts that defendant was only hospital in county, hospital leased premises from county for fifteen years for $1.00, and make-up of hospital’s board subject to terms of lease). O’Neill may be distinguished on two grounds. First, there was substantially more state intertwinement with the hospital there than in the instant case. Second, and more importantly, the decision in O’Neill seems questionable in light of the Supreme Court’s decision in Jackson. Perhaps the most interesting of all the post-Jackson Circuit Court decisions that have addressed the state action issue with respect to an ostensibly private hospital is Downs v. Sawtelle, 574 F.2d 1 (1st Cir. 1978), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978). In that case, the"
},
{
"docid": "5152833",
"title": "",
"text": "used for abortions only in those circumstances where the abortion is required for medical reasons. Although the defendant hospital had received Hill-Burton grants and state funding and was subject to state regulation, the Beilin court found that these facts alone were inadequate to establish that the abortion policy in question was “directly or indirectly influenced by the State or by persons acting under color of State law.” Id. at 757. Similarly, when the question of whether the policies of a private hospital reflect state action has arisen in other contexts involving the internal medical and administrative practices of the hospital, such as sterilization policies and procedures for the accreditation of its professional staff, the courts of appeals, with a single exception, have consistently held that governmental funding and other financial aid to and regulation of the hospital do not rise to the level of state action sufficient to state a cause of action under Section 1983, where no connection between the state involvement and the challenged activity of the hospital has been shown. Schlein v. Milford Hospital, 561 F.2d 427, 428 (2d Cir. 1977); Briscoe v. Bock, 540 F.2d 392, 395-96 (8th Cir. 1976); Taylor v. St. Vincent’s Hospital, 523 F.2d 75-77 (9th Cir. 1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 (1976); Watkins v. Mercy Medical Center, 520 F.2d 894, 896 (9th Cir. 1975); Ascherman v. Presbyterian Hospital of Pacific Medical Center, Inc., 507 F.2d 1103, 1105-06 (9th Cir. 1974); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 312-14 (9th Cir. 1974); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502, 503 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Ward v. St. Anthony Hospital, 476 F.2d 671, 675-76 (10th Cir. 1973). But see Citta v. Delaware Valley Hospital, 313 F.Supp. 301, 307 (E.D.Pa.1970); Doe v. Bridgeton Hospital Association, Inc., 71 N.J. 478, 366 A.2d 641, 645-47 (1976). The Fourth Circuit is alone among the courts of appeals in repeatedly holding that the receipt of Hill-Burton funds and participation in Medicare-Medicaid programs amount to state action."
},
{
"docid": "8837054",
"title": "",
"text": "427 (2d Cir. 1977); Greco v. Orange Memorial Hospital Corporation, 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Watkins v. Mercy Medical Center, 520 F.2d 894 (9th Cir. 1975); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973). The Court of Appeals for the Fourth Circuit has espoused a contrary view, originating in the case of Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), in which a claim of racial discrimination was asserted. That court extended the principle to situations involving medical staff privileges. See, e. g., Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974). The district court holdings in this circuit have followed the majority view. See, e. g., Sament v. Hahnemann Medical College and Hospital, 413 F.Supp. 434 (E.D.Pa.1976); aff’d mem., 547 F.2d 1164 (3d Cir. 1977); Acosta v. Tyrone Hospital, 410 F.Supp. 1275 (W.D.Pa.1976); Hoberman v. Lock Haven Hospital, 377 F.Supp. 1178 (M.D.Pa.1974); Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (M.D.Pa.1974), aff’d mem., 511 F.2d 1395 (3d Cir. 1975); Slavcoff v. Harrisburg Polyclinic Hospital, 375 F.Supp. 999 (M.D. Pa.1974). An exception is Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D. Pa.1970), which in the absence of any precedent from this court followed the rule espoused by the Fourth Circuit. We have determined to stand with the vast majority of courts of appeals and hold that the receipt of Hill-Burton construction funding, Medicare and Medicaid funds, and the existence of tax exemption, as well as state licensing requirements for nonprofit hospitals, do not constitute state action under 42 U.S.C. § 1983. We do not meet the situation in other cases where other considerations may merit a different approach. Cf. Holton"
},
{
"docid": "13239057",
"title": "",
"text": "age discrimination. That being no part of the claim before me however, there is no need to address this question here. . Article 17 § 3. . Page 5 of plaintiff’s brief. This argument lias been adopted by the Fourth Circuit in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), and, by the Sixth Circuit in Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). Both of these cases, however, involved a Board of Trustees consisting of a substantial number of members appointed by state agencies. Furthermore the continued vitality of the Meredith case is placed very much in doubt by the recent decision of Jackson v. Norton-Children’s Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974). . No Second Circuit case has come to my attention dealing with applicability of the “public function” argument to private hospitals. For this reason I have resorted to analogy. Although McCabe v. Nassau County Medical Center, 453 F.2d 698 (2d Cir. 1971), indicates at 703, fn 11, that the plaintiff there sought to apply the “public function” theory to hospitals, the court did not feel the need to address itself to the question since the case at bar involved a public hospital. . 407 F.2d at 80. . 478 F.2d at 1140. . Powe v. Miles, 407 F.2d at 80. . Public Health Law § 2806. . Public Health Law - 2805-a. . Evans dealt with the “use” of a municipal park, Marsh and Logan Valley with the “use” of sidewalks and Terry with the exercise of the right to vote. In all four the activity in which the complained of conduct took place was the very one which had been judicially determined as being “governmental in nature.” . This, perhaps, would not be so where the hiring and firing of staff members is done by a commission, the members of which hold office as a result of governmental appointments. See"
},
{
"docid": "8837053",
"title": "",
"text": "OPINION OF THE COURT PER CURIAM: This appeal represents another of the recurring attempts to invoke federal court jurisdiction in resolving disputes between physicians and private hospitals. The plaintiff, a surgeon, alleges his staff privileges and office lease at the Paoli Memorial Hospital, Chester, Pennsylvania, were terminated without due process of law and in denial of equal protection. He brought suits under 42 U.S.C. (j 1983, contending that because the nonprofit hospital corporation had received funds under the Hill-Burton Act, 42 U.S.C. §§ 291 et seq., is tax exempt, and receives other benefits from the state, its activity constitutes state action. The district court dismissed the complaints for failure to state a claim upon which relief can be granted. We affirm. Physicians’ efforts to invoke Hill-Burton funding as a basis for a § 1983 claim have been a fruitful source of litigation. The majority of circuits have held the receipt of Hill-Burton funds, Medicare and Medicaid payments, and the usual hospital licensing provisions do not constitute state action. Schlein v. Milford Hospital, Inc., 561 F.2d 427 (2d Cir. 1977); Greco v. Orange Memorial Hospital Corporation, 513 F.2d 873 (5th Cir.), cert. denied, 423 U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Watkins v. Mercy Medical Center, 520 F.2d 894 (9th Cir. 1975); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973). The Court of Appeals for the Fourth Circuit has espoused a contrary view, originating in the case of Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), in which a claim of racial discrimination was asserted. That court extended the principle to situations involving medical staff privileges. See, e. g., Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512 (4th Cir. 1974). The district court holdings"
},
{
"docid": "2055781",
"title": "",
"text": "remanded, 560 F.2d 575 (3d Cir. 1977) (remanded to consider motion to amend complaint to establish jurisdiction on other grounds), or to refuse to perform abortions, see Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973). The Fourth Circuit found state action where a hospital, which had received Hill-Burton funds, refused to give staff privileges or treat certain patients on account of their race. At that time, the statute and regulations provided that a hospital did not have to be available to all if separate facilities were available. See Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793,11 L.Ed.2d 659 (1964). In a later case involving a similar allegation, the court found state action not through the statutory authorization for discrimination but through several facts: the hospital had a deed from the city and county with a reverter clause, it had tax-exempt status, it exercised the power of eminent domain, and it received subsidies for capital construction from the state and federal governments. See Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). More recently, the Fourth Circuit has decided that the receipt of Hill-Burton funds is sufficient to make even the decision to deny a doctor staff privileges state action. See Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174 (1974). This Circuit has rejected the conclusion reached in Christhilf. It has found state action in cases involving denial of staff privileges where the hospitals were in part governed by, or the governing body was appointed by, public officials. See O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971) (per curiam); Meredith v. Allen County War Memorial Hospital Comm’n, 397 F.2d 33 (6th Cir. 1968). However, that the hospital was regulated by state and federal governments and had received funds under the Hill-Burton Act was not enough for a private hospital’s decision to deny a doctor staff privileges to be state action. Something more than partial federal"
},
{
"docid": "23517221",
"title": "",
"text": "performance of an abortion. 42 U.S.C. § 300a-7(a)(2)(A). The Act apparently prohibits a finding of state action based on receipt of these funds “if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions.” Id. (emphasis supplied). We find nothing in either the testimony of Mr. Arnwine at the hearing on the motion for a preliminary injunction or in his policy letter read to the court at that time that indicates CAMC’s policy was based on religious belief or moral convictions within the meaning of this act. See 1973 U.S.Code Cong. & Admin. News at pp. 1473, 1477-78; Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308 (9th Cir. 1974); Taylor v. St. Vincent’s Hospital, 369 F.Supp. 948 (D.Mont.1973); Watkins v. Mercy Medical Center, 364 F.Supp. 799 (D.Idaho 1973). We think the statute is inapplicable. CAMC’s only attempt to invoke a moral obligation falls short of an assertion that the policy rests upon moral and religious belief rather than the West Virginia criminal statute: “The policy of the appellees with respect to nonther-apeutic abortions is naturally related to the long existing Statute of West Virginia and motivated thereby from a moral standpoint.\" Brief for Appellee at 5 (emphasis added). . Cases reaching a contrary conclusion: Ascherman v. Presbyterian Hospital of Pacific Medical Center, Inc., 507 F.2d 1103 (9th Cir. 1974); Jackson v. Norton-Children’s Hospital, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Barrett v. United Hospital, 376 F.Supp. 791 (S.D.N.Y.), aff'd mem., 506 F.2d 1395 (2d Cir. 1974); Allen v. Sisters of St. Joseph, 361 F.Supp. 1212 (N.D.Tex.1973), appeal dismissed, 490 F.2d 81 (5th Cir. 1974). Cf. Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973). Cases reaching a similar conclusion: Pollock v. Methodist Hospital, 392 F.Supp. 393 (E.D.La.1975); Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234 (D.N.H.), aff'd 468 F.2d 1228 (1st Cir. 1972); Citta v. Delaware Valley"
},
{
"docid": "5152834",
"title": "",
"text": "Milford Hospital, 561 F.2d 427, 428 (2d Cir. 1977); Briscoe v. Bock, 540 F.2d 392, 395-96 (8th Cir. 1976); Taylor v. St. Vincent’s Hospital, 523 F.2d 75-77 (9th Cir. 1975), cert. denied, 424 U.S. 948, 96 S.Ct. 1420, 47 L.Ed.2d 355 (1976); Watkins v. Mercy Medical Center, 520 F.2d 894, 896 (9th Cir. 1975); Ascherman v. Presbyterian Hospital of Pacific Medical Center, Inc., 507 F.2d 1103, 1105-06 (9th Cir. 1974); Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308, 312-14 (9th Cir. 1974); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502, 503 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Ward v. St. Anthony Hospital, 476 F.2d 671, 675-76 (10th Cir. 1973). But see Citta v. Delaware Valley Hospital, 313 F.Supp. 301, 307 (E.D.Pa.1970); Doe v. Bridgeton Hospital Association, Inc., 71 N.J. 478, 366 A.2d 641, 645-47 (1976). The Fourth Circuit is alone among the courts of appeals in repeatedly holding that the receipt of Hill-Burton funds and participation in Medicare-Medicaid programs amount to state action. Doe v. Charleston Area Medical Center, 529 F.2d 638 (4th Cir. 1975); Duffield v. Charleston Area Medical Center, Inc., 503 F.2d 512, 515 (4th Cir. 1974); Christhilf v. Annapolis Emergency Hospital Association, Inc., 496 F.2d 174, 178 (4th Cir. 1974); Sams v. Ohio Valley General Hospital Association, 413 F.2d 826, 828 (4th Cir. 1969); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 965-70 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). Plaintiffs place particular reliance on Doe v. Charleston Area Medical Center, supra, which held that the defendant hospital acted “under color of” state law for purposes of Section 1983 when the hospital refused to allow its facilities to be used by plaintiff for an abortion. That case, however, is clearly distinguishable. In Charleston, defendant’s anti-abortion policy paralleled a West Virginia criminal abortion statute prohibiting nontherapeutic abortions, and the president of the hospital testified that the statute was the primary motivation for the policy in question. Id. at 643 n. 11. In finding state action, the"
},
{
"docid": "2055782",
"title": "",
"text": "state and federal governments. See Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). More recently, the Fourth Circuit has decided that the receipt of Hill-Burton funds is sufficient to make even the decision to deny a doctor staff privileges state action. See Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174 (1974). This Circuit has rejected the conclusion reached in Christhilf. It has found state action in cases involving denial of staff privileges where the hospitals were in part governed by, or the governing body was appointed by, public officials. See O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971) (per curiam); Meredith v. Allen County War Memorial Hospital Comm’n, 397 F.2d 33 (6th Cir. 1968). However, that the hospital was regulated by state and federal governments and had received funds under the Hill-Burton Act was not enough for a private hospital’s decision to deny a doctor staff privileges to be state action. Something more than partial federal funding is needed for state action. See Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502, 503 (6th Cir. 1973) (per curiam), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974). This Court rejected an analogous claim of state action in Griffith v. Bell-Whitley Community Action Agency, 614 F.2d 1102, 1108-10 (6th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3025, 65 L.Ed.2d 1122 (1980). The plaintiffs in that case challenged their discharges from the community action agency as violations of their First and Fifth Amendment rights. They claimed the actions of the agency were government actions because the agency received virtually all of its operating funds from the federal government, was subject to extensive regulations, and was part of the federal government’s war on poverty. This Court held the private agency did not have a symbiotic relationship with the government so as to fall under Burton; nor was there a nexus between the funding and the regulations and the action challenged. Thus, the complaints were dismissed for failure to state a cause"
},
{
"docid": "5152842",
"title": "",
"text": "denied, 419 U.S. 1001, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974); Lavoie v. Bigwood, 457 F.2d 7, 15 (1st Cir. 1972). . In Bricker v. Crane, 468 F.2d 1228, 1231 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973), the Court of Appeals for this Circuit specifically eschewed reaching a decision whether the reception of funds under the Hill-Burton Act and other government programs was sufficient to imbue the hospital with state action. Doe v. Hale Hospital, 500 F.2d 144 (1st Cir. 1974), cert. denied, 420 U.S. 907, 95 S.Ct. 825, 42 L.Ed.2d 837 (1975), and Hathaway v. Worcester City Hospital, 475 F.2d 701 (1st Cir.), application for stay of mandate denied, 411 U.S. 929, 93 S.Ct. 1888, 36 L.Ed.2d 388 (1973), both were concerned with the obligation of a public, city-owned hospital to make its facilities available to women seeking either sterilizations or first trimester abortions. . The fact that the hospital has received financial assistance from the federal government is not a factor in considering the presence of state action for purposes of Section 1983. Berrios v. Inter American University, supra at 1332 n. 5. . Because EMMC is not the sole hospital serving the Bangor region, the Court need not reach the question of whether monopoly status so intensifies the public functions of a private hospital that it becomes an instrumentality of the State. See Jackson v. Metropolitan Edison Co., supra 419 U.S. at 351-52, 95 S.Ct. 449; cf. O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140, 1143 (6th Cir. 1973); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33, 35 (6th Cir. 1968). . 22 M.R.S.A. § 1572 provides in pertinent part: No physician . . . and no hospital or health care facility that refuses to permit the performance of an abortion upon its premises, shall be liable to any person, firm, association or corporation for damages allegedly arising from the refusal, nor shall such refusal constitute a basis for any civil liability to any physician, nurse or other person, hospital or health care facility"
},
{
"docid": "18726752",
"title": "",
"text": "Judge Will reviewed Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), and authorities from other circuits and concluded: Applying the standard reflected by the aforementioned cases we do not find that the plaintiffs have alleged the requisite involvement by the state in the wrongful conduct at issue here. Regardless of the extent to which the defendants receive governmental support, or the degree of government regulation, unless the state activity or involvement related to the conduct which caused Mary Ann Hawken’s death, the instant cause of action is not actionable under § 1983. Since there is no allegation that the state, either through neglect or purposeful failure to properly regulate the defendant, sanctioned or gave tacit approval to the defendants’ course of conduct, the defendants cannot be subject to federal jurisdiction. (Memorandum Opinion at 9.) Plaintiff also cites Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970). More recent authority in that Circuit, however, casts doubt on the continuing validity of the Citta opinion. For example, in Hoberman v. Lock Haven Hospital, 377 F.Supp. 1178 (M.D.Pa.1974) the court refused to find state action in a Section 1983 suit even though the defendant hospital received Hill-Burton funds, payments from medi care and medicaid programs, other grants or services from governmental units, and had to comply with rules and regulations promulgated by the state department of welfare. 377 F.Supp. at 1186-1188. See Ozlu v. Lock Haven Hospital, 369 F.Supp. 285, 287-288 (M.D.Pa.1974) for holding to the same effect. The cases relied upon by plaintiff are not in accord with the present weight of authority. As to specific state involvements, numerous cases have held that receiving Hill-Burton funds and being subject to state regulation do not convert an otherwise private hospital into one acting “under color of” State law. Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973); Barrio v. McDonough District Hosp., 377 F.Supp. 317 (S.D.Ill.1974); Mulvihill v. Julia L. Butterfield Memorial"
},
{
"docid": "13239059",
"title": "",
"text": "Meredith v. Allen County War Memorial Hospital Com’n, 397 F.2d 33, 35 (6th Cir. 1968). No such situation exists in the instant case and it is therefore unnecessary to reach this issue. . Iti is doubtful that the Supreme Court would have applied the “public function” theory to the park in Evans had the complaint concerned the discharge of groundskeepers without a full hearing complete with all the protections of due process. . Friendly, The Dartmouth College Case and the Public-Private Penumbra, 12 Texas L.Q. (2d Supp.) 141. Judge Friendly recently reiterated this view in Wahba v. New York University, 492 F.2d 96, 100 (2d Cir. 1974), concluding that “decisions dealing with one form of state involvement and a particular provision of the Bill of Rights [are not] at all determinative in passing upon claims concerning different forms of government involvement and other constitutional guarantees . . ..” . The Hill-Burton Act, 42 U.S.C. § 291 et seq. provides federal grants to assist in the maintenance and construction of hospitals. “The money is funneled through state agencies to individual hospitals which are engaged in building projects.” Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020, 1023 (S.D.N.Y.1971). [Emphasis added]. . See Sams v. Ohio Valley General Hospital, 413 F.2d 826 (4th Cir. 1969) ; Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966) ; Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ; Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). All of these cases, with the exception of Sams, involved racial discrimination however. Sams concerned denial of equal protection to non-residents seeking staff privileges. Although all of the four cases are easily distinguishable on their facts it is fairly obvious that the Fourth Circuit would rule no differently faced with the facts of the instant case. . See Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234, 237 (D.N.H. 1972), where the court said: “I recognize that the weight of authority holds that the acceptance of"
},
{
"docid": "13239056",
"title": "",
"text": "Jackson v. The Statler Foundation, 496 F.2d 623, 627 (2d Cir. 1974). . Although this factor is not explicitly argued in plaintiff’s brief, many of the cases cited therein based their findings of state action on such exemptions. . New York Public Health Law § 2802, McKinney’s Consol.Laws, c. 45. . The decisions of these circuits are dealt with in some depth later in the opinion. . Affidavit of Charles J. Alexander, M. D. . Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) ; Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). . Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) ; Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). . Moose Lodge No. 107 v. Irvis, supra; Bond v. Dentzer, 494 F.2d 302 (2d Cir. 1974) ; Shirley v. State National Bank of Conn., 493 F.2d 739 (2d Cir. 1974). . The rationale behind this exception may . make it equally applicable to cases involving • sex or age discrimination. That being no part of the claim before me however, there is no need to address this question here. . Article 17 § 3. . Page 5 of plaintiff’s brief. This argument lias been adopted by the Fourth Circuit in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964), and, by the Sixth Circuit in Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). Both of these cases, however, involved a Board of Trustees consisting of a substantial number of members appointed by state agencies. Furthermore the continued vitality of the Meredith case is placed very much in doubt by the recent decision of Jackson v. Norton-Children’s Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974). . No Second Circuit case has come to my attention dealing with applicability of the “public function” argument to private hospitals. For this reason I have"
},
{
"docid": "16284333",
"title": "",
"text": "a “symbiotic relationship” between the Hospital and the Commonwealth, it was necessary for plaintiff to establish that the Commonwealth participated in the challenged activity. See Jackson, supra. Plaintiff offered no evidence, however, that the Commonwealth in any way fostered or encouraged via statute, regulation or otherwise, the termination by defendants of his staff privileges and lease. Finally, the above-cited cases represent a distinct minority view. We choose not to follow that view but rather to follow the view held by the overwhelming majority of courts, that the mere receipt of Hill-Burton funds by a hospital does not convert all of its actions into actions taken “under color of” state law. See Greco v. Orange Memorial Hosptial Corp., 513 F.2d 873 (5th Cir. 1975), cert. denied, 423 U.S. 1000, 96 S.Ct. 433 (1976); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976); Ascherman v. Presbyterian Hospital of Pacific Medical Center, Inc., 507 F.2d 1103 (9th Cir. 1974); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); Holton v. Crozer-Chester Medical Center, 419 F.Supp. 334 (E.D.Pa.1976); Acosta v. Tyrone Hospital, 410 F.Supp. 1275 (W.D.Pa.1976); Slavcoff v. Harrisburg Polyclinic Hospital, 375 F.Supp. 999 (M.D.Pa.1974); Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (M.D.Pa.1974) , aff’d mem., 511 F.2d 1395 (3d Cir. 1975) . Accordingly, the complaints will be dismissed for failure to state a claim upon which relief can be granted. An appropriate Order will be entered. . The Hill-Burton Act is a federal-state program which provides federal funds for the construction and modernization of hospitals and other medical facilities. See generally Nat’l Ass’n of Neighborhood Health Centers, Inc. v. Mathews, 551 F.2d 321, 324-325 (D.C. Cir. 1976); Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959, 962-965 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). . Jurisdiction was based upon 28 U.S.C. § 1343(3). . Essentially, we denied"
},
{
"docid": "13239060",
"title": "",
"text": "state agencies to individual hospitals which are engaged in building projects.” Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020, 1023 (S.D.N.Y.1971). [Emphasis added]. . See Sams v. Ohio Valley General Hospital, 413 F.2d 826 (4th Cir. 1969) ; Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966) ; Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) ; Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). All of these cases, with the exception of Sams, involved racial discrimination however. Sams concerned denial of equal protection to non-residents seeking staff privileges. Although all of the four cases are easily distinguishable on their facts it is fairly obvious that the Fourth Circuit would rule no differently faced with the facts of the instant case. . See Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234, 237 (D.N.H. 1972), where the court said: “I recognize that the weight of authority holds that the acceptance of Hill-Burton funds is sufficient to cloak a private hospital and its medical staff with a mantle of state law.” Brieher was affirmed by the Court of Appeals for the First Circuit, 468 F.2d 1228 (1st Cir. 1972). The court there did not, however, review the “state action” determination of the trial judge. . See Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970). Cf. Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (N.D.Pa.1974). . The recent case of Jackson v. NortonChildrens Hospital, 487 F.2d 502 (6th Cir. 1973), cert. denied, - U.S. -, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974), would appear to overrule O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973). See also Place v. Shepherd, 446 F.2d 1239 (6th Cir. 1971) and Meredith v. Allen County War Memorial Hospital, 397 F.2d 33 (6th Cir. 1968). . See Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973), apparently overruling Holmes v. Silver Cross Hospital, 340 F.Supp. 125 (N.D.Ill.1972). . See Stanturf v. Sipes, 335 F.2d 224 (8th"
},
{
"docid": "21930606",
"title": "",
"text": "and to promote the coordination of such research, experiments, and demonstrations and the useful application of their results.” As further amplified in the leading case of Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 963 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964): “The Hill-Burton program requires that states wishing to participate must inventory existing facilities to determine hospital construction needs and to develop construction priorities under federal standards. State agencies are designated to perform this function and to adopt state-wide plans to be submitted for the approval of the Surgeon General of the United States . . . The Act provides for grants of federal funds for construction of new or additional facilities for governmentally-owned hospitals and voluntary nonprofit hospitals.” In spite of that, plaintiff cites Simkins, supra, and its progency, see, e. g., Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970), for the proposition that the necessary degree of state participation and involvement is supplied merely by the grant and acceptance of Hill-Burton Funds. Those cases are clearly distinguishable from the one at bar. Simkins itself dealt with the exclusion of certain races, creeds and colors from its facilities. Translated into the analytical framework of this case, the rationale underlying Simkins is this: If the government doles out funds for the construction of hospital facilities, then those facilities must be open to all, regardless of race, creed or color. Since the sole purpose of the Hill-Burton Program is to deliver adequate medical treatment to the citizens of each state through a statewide plan of hospital construction, Mulvihill v. Julia L. Butterfield Memorial Hospital, 329 F.Supp. 1020 (S.D.N.Y.1971), the mere receipt of such funds hardly injects the state or federal government into the everyday operating affairs of this hospital. This was recognized in Ward v. St. Anthony Hospital, 476 F.2d 671, 675 (10th Cir. 1973): “There may be a point in the"
},
{
"docid": "23517222",
"title": "",
"text": "the West Virginia criminal statute: “The policy of the appellees with respect to nonther-apeutic abortions is naturally related to the long existing Statute of West Virginia and motivated thereby from a moral standpoint.\" Brief for Appellee at 5 (emphasis added). . Cases reaching a contrary conclusion: Ascherman v. Presbyterian Hospital of Pacific Medical Center, Inc., 507 F.2d 1103 (9th Cir. 1974); Jackson v. Norton-Children’s Hospital, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Barrett v. United Hospital, 376 F.Supp. 791 (S.D.N.Y.), aff'd mem., 506 F.2d 1395 (2d Cir. 1974); Allen v. Sisters of St. Joseph, 361 F.Supp. 1212 (N.D.Tex.1973), appeal dismissed, 490 F.2d 81 (5th Cir. 1974). Cf. Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973). Cases reaching a similar conclusion: Pollock v. Methodist Hospital, 392 F.Supp. 393 (E.D.La.1975); Bricker v. Sceva Speare Memorial Hospital, 339 F.Supp. 234 (D.N.H.), aff'd 468 F.2d 1228 (1st Cir. 1972); Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1974). . Doe urged additional grounds on which to find state action: (1) state licensing and tax exemption; (2) affiliation with West Virginia University through CAMC operation of the Charleston Division of the West Virginia University Medical Center; (3) CAMC dominance (85%) of the obstetrical and gynecological facilities in the area; and (4) receipt of state funds for operation of CAMC’s maternity and child care clinic. . Most of the courts which treat receipt of Hill-Burton funds differently from this circuit assume that “state action” should be found if the state were directly involved in the policy under challenge. Ascherman, supra at 1105; Doe v. Beilin Memorial Hospital, supra at 761; Ward, supra at 675; Barrett, supra at 800-05. . App. 77. The West Virginia criminal abortion statute was in fact the only direct motivation cited by Amwine for the hospital’s policy. It is possible, however, to infer from his testimony another motivation based on shortage of available facilities. . The court decided that the facts alleged in this case would,"
},
{
"docid": "16284332",
"title": "",
"text": "of Pennsylvania case, Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970), in support of his contention. Essentially, those cases hold that the mere receipt of Hill-Burton funds carries with it the obligation to observe federal constitutional mandates such as the Due Process Clause of the Fourteenth Amendment. We decline to follow those cases for several reasons. First, all that plaintiff has shown is that the Hospital received Hill-Burton funds. No doubt, in connection with the acceptance of benefits under the Hill-Burton Act, the Hospital “agreed to abide by a variety of regulatory terms related both to its operations and to the use of the funds.” Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761 (7th Cir. 1973) (Stevens, J.). However, this general governmental involvement is far different from the almost complete physical and financial interdependence that existed between the private restaurant owner and the state in Burton. See, e. g., Hollenbaugh v. Carnegie Free Library, 545 F.2d 382 (3d Cir. 1976). Second, since we do not believe that the receipt of Hill-Burton funds created a “symbiotic relationship” between the Hospital and the Commonwealth, it was necessary for plaintiff to establish that the Commonwealth participated in the challenged activity. See Jackson, supra. Plaintiff offered no evidence, however, that the Commonwealth in any way fostered or encouraged via statute, regulation or otherwise, the termination by defendants of his staff privileges and lease. Finally, the above-cited cases represent a distinct minority view. We choose not to follow that view but rather to follow the view held by the overwhelming majority of courts, that the mere receipt of Hill-Burton funds by a hospital does not convert all of its actions into actions taken “under color of” state law. See Greco v. Orange Memorial Hosptial Corp., 513 F.2d 873 (5th Cir. 1975), cert. denied, 423 U.S. 1000, 96 S.Ct. 433 (1976); Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502 (6th Cir. 1973), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974); Doe v. Beilin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973); Briscoe v. Bock, 540 F.2d 392 (8th Cir. 1976);"
}
]
|
48802 | discretion in so doing. National Hockey League v. Metro Hockey Club, 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). There is no indication in the record that the appellant’s failure to comply with Rule 42 was due to reasons beyond his control. In fact, appellant was amply warned by the district court that if he failed to comply with the Rule, sanctions would be forthcoming. Although default was the most severe sanction available, we will not substitute our judgment for that of the district court in the absence of any explanation for the defendant’s failure to comply with the court’s order. Entry of an order of default was therefore not an abuse of discretion. See REDACTED The judgment of the district court is AFFIRMED. . The pertinent part of Local Rule 42 C is as follows: . The record adequately reflects that the district court considered lesser sanctions. The plaintiffs’ motion for sanctions detailed a rather wide range of alternative sanctions for consideration by the district court. | [
{
"docid": "13932479",
"title": "",
"text": "default upon findings that Hughes owned, directly or indirectly, all of the stock of Hughes Air and Summa; that Hughes probably had some knowledge of the 1970 acquisition; and that Hughes was guilty of “knowing, wilful and deliberate disregard of the authority of this court.” Hughes did not appear within the allotted 45-day period. The specific sanctions imposed by the district court’s order were the entry of a default judgment against Summa, Hughes Air and Howard Hughes on the cross-complaints of the trustees and the directors, the dismissal with prejudice of the Summa and Hughes Air cross-claim against the trustees and the directors, and the striking with prejudice of all affirmative defenses pleaded by the three cross-defendants. The question presented is whether the district court’s order, or any portion thereof, constituted an abuse of discretion. National Hockey League (NHL) v. Metropolitan Hockey Club, Inc., -U.S.-,-, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). The answer is no. The trustees had the right to depose Hughes. Fed.R.Civ.P. 30(a). The district court found that Hughes probably had some knowledge of the 1970 acquisition, which finding is supported by the record. Hence the district court properly denied Hughes’ motion for a protective order under Fed.R. Civ.P. 26(c). See, e. g., Overseas Exchange Corp. v. Inwood Motors, Inc., 20 F.R.D. 228, 229 (S.D.N.Y.1956). Indeed, Hughes, Hughes Air and Summa do not here challenge the propriety of that denial. Because Hughes has never asserted that his failure to appear for deposition was due to circumstances beyond his control, he can find no support in decisions such as Societe Internationale v. Rogers, 357 U.S. 197, 211-13, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). Here, as in NHL, supra,-U.S. at --, 96 S.Ct. 2778 (1976), the record supports the court’s finding that Hughes’ failure to appear was due to his bad faith and willful disregard of judicial process. See also Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964). The order of default was appropriate. Nor did the court abuse its discretion in applying its order to the corporate defendants as well as to"
}
]
| [
{
"docid": "22995707",
"title": "",
"text": "government’s expenses incurred in the salvage and pollution cleanup operations. The government did not supply underlying documents to support its cargo valuation lists or its salvage and pollution claims. On December 16, 1976, Pearl filed a motion for sanctions against the government. On December 20, the district court ordered the government to respond to this motion on or before December 28, 1976. The government did not meet this filing deadline. The court heard the sanction motion on January 10, 1977. This was only two weeks prior to the scheduled commencement of trial. The court found that the government had willfully disregarded its October order requiring the government to produce evidence of its damage by November 25, 1976, “and that the orderly and expeditious administration of justice requires sanctions in this matter.” Accordingly, the district court ordered that the government would be precluded from introducing any evidence of its damages. II A. The Preclusion Order Rule 37(b) of the Federal Rules of Civil Procedure provides a wide range of sanctions for a party’s failure to comply with court discovery orders. In ascending order of harshness, the district court may: require the delinquent party or his attorney to pay the reasonable expenses, including attorney’s fees, incurred by the innocent party as a result of the failure to obey the order; strike out portions of pleadings; deem certain facts as established for purposes of the action or preclude admission of evidence on designated matters; dismiss all or part of the action; or render a default judgment against the disobedient party. See Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d 1062, 1066 (2d Cir. 1979). The choice among the various sanctions rests within the discretion of the district court. Fed.R.Civ.P. 37(b)(2). We therefore review the district court’s order to determine whether the sanctions imposed constituted an abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam); Anderson v. Air West, Inc., 542 F.2d 1090, 1092 (9th Cir. 1976). This discretion will not be disturbed unless"
},
{
"docid": "18385566",
"title": "",
"text": "proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. The imposition of any of these available sanctions is within the discretion of this court, and should not be disturbed absent a flagrant abuse of that discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747, 751 (1976). The decision in National Hockey League was the first Supreme Court interpretation of Rule 37 since the 1970 amendments, which deleted the requirement of “wilfulness” in failure to obey discovery requests. See E. Epstein, An Update on Rule 37 Sanctions After National Hockey League v. Metropolitan Hockey Clubs, Inc., 84 F.R.D. 145 (1980). The court did not specifically address itself to the question of wilfulness as a prerequisite to sanctions, but it did hold that the district court did not abuse its discretion in dismissing the action upon a finding of “flagrant bad faith” and “callous disregard” of responsibilities. The district court had relied upon the following factors as justification for dismissing the action: (1) repeated extensions had been granted to the plaintiff to file answers; (2) no supplemental interrogatory answers had been filed even seventeen months after the entry of an order compelling such answers to be made; (3) the District Court had warned the plaintiff that it did not consider the defendant’s motion to dismiss to be a frivolous one; (4) other discovery motions had been repeatedly before the court in the case; . Epstein, supra at 146. All of these factors are present in this action, as the record amply demonstrates. This action is similar to the facts in Emerick v. Fenick Industries, Inc., 539 F.2d 1379 (5th Cir. 1976). The plaintiffs in that case brought an action on a promissory note, and sought the production of certain documents from the defendant. The defendant, after almost two years had passed since the outstanding discovery request, contended that it could not comply because it did not have the records sought. That seems to be"
},
{
"docid": "19315290",
"title": "",
"text": "complaint and counterclaim. On a motion for reconsideration, the court issued a new opinion and order reaffirming the dismissal and certified the case for appeal under Fed.R.Civ.P. 54(b). On appeal, PFEL contends that (1) the district court abused its discretion in granting dismissal because PFEL’s misconduct, if any, was not willful; (2) the dismissal violated PFEL’s right to a jury trial; (3) the imposition of dismissal as a sanction is inconsistent with the Bankruptcy Act; (4) Federal Rule of Civil Procedure 11 precludes dismissal; and (5) the district court’s opinion is ambiguous and relies too heavily on Sea-Land’s briefs. II. THE SANCTION OF DISMISSAL A. Standard of Review Federal Rule of Civil Procedure 37 authorizes the district court, in its discretion, to impose a wide range of sanctions when a party fails to comply with the rules of discovery or with court orders enforcing those rules. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); United States v. Sumitomo Marine & Fire Insurance Co., 617 F.2d 1365, 1369 (9th Cir. 1980). When choosing among possible sanctions, the district court may consider the deterrent value of an order of dismissal on future litigants as well as on the parties. National Hockey League, 427 U.S. at 642-43, 96 S.Ct. at 2780-81. We shall not disturb the district court’s exercise of discretion unless the record creates “a ‘definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors’.” Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.1976) (quoting In re Josephson, 218 F.2d 174 (1st Cir.1954). Dismissal, however, is authorized only where the failure to comply is due to willfulness, bad faith, or fault of the party. National Hockey League, 427 U.S. at 640, 96 S.Ct. at 2779; Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir.1981). Additionally, courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice. Phoceene"
},
{
"docid": "3714165",
"title": "",
"text": "by the plaintiff’s Motion to Mold the Verdict as to the City of Philadelphia. The City also asserts that the district court erred in permitting discovery after the jury rendered a verdict in its favor. The district court has subject matter jurisdiction pursuant to 42 U.S.C. § 1983. We have appellate jurisdiction under 28 U.S.C. § 1291. II. We consider first whether the district court abused its discretion by refusing to enter a default judgment against the City, as permitted by Rule 37(b)(2) of the Federal Rules of Civil Procedure, to sanction the City’s failure to comply with a discovery order. The district court considered together the plaintiffs motions for sanctions and for default judgment and determined to award monetary sanctions and deny judgment. Rule 37(b)(2) offers a wide range of sanctions for noncompliance with an order to compel discovery. The choice of the appropriate sanction is committed to the sound discretion of the district court. Mangano v. American Radiator and Standard Sanitary Corp., 438 F.2d 1187 (3d Cir.1971). The question is not whether this court would, as an original matter, have chosen a harsher sanction; it is whether the district court abused its discretion in not doing so. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). Sound judicial policy favors disposition of cases on their merits rather than on procedural defaults. We have consistently emphasized the extreme nature of a dismissal with prejudice or default judgment. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 867 (3d Cir.1984). These must be sanctions of last, not first, resort. Id. at 869. Therefore our review of the district court’s discretionary choice of a lesser sanction than default judgment will be very deferential. The same considerations bearing upon the other discovery orders which allegedly interfered with a party’s ability to obtain evidence are relevant to this situation. Even if a discovery order was arbitrary and unreasonable, an appellate court will not disturb the ruling absent a showing of actual and substantial prejudice. Rad Services, Inc. v. Aetna Casualty & Surety"
},
{
"docid": "2454117",
"title": "",
"text": "disobeys a discovery order: If a party ... fails to obey an order to provide or permit ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (C) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. Fed.R.Civ.P. 37(b)(2)(C) (emphasis added). . [1] Entry of a default judgment is an appropriate sanction when the disobedient party has failed to comply with a court order because of willfulness, bad faith, or other fault on its part, as opposed to its inability to comply with the court’s order. See Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255 (1958); Batson v. Neal Spelce Associates, Inc., 765 F.2d 511, 514 (5th Cir.1985). The district court’s decision to enter a sanction for violation of a discovery order is subject to review only for abuse of discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). We have no indication that the district court abused its discretion in this case. Franck argues that his failure to comply with the discovery orders resulted from his lack of knowledge of the proceedings and his lack of funds to travel to Dallas. Neither reason is convincing. The magistrate specifically found that Franck participated by telephone in the hearing which led to the April 25,1985 order directing him to appear and give his deposition on June 3, 1985. The magistrate therefore found that Franck’s professed ignorance of the court proceedings was not to be believed. We see no reason to depart from this finding. Despite the magistrate’s recommendation that a default judgment be rendered against Franck for his willful failure to comply with the April 25 order, Franck received a second chance to avoid a default judgment, and was ordered to appear for his deposition in Dallas on"
},
{
"docid": "22237014",
"title": "",
"text": "for processing claims resulting from a malfunctioning product. The absence of such a procedure, in effect the disregard for the possibility of injuries, is also a proper consideration in deciding whether a defendant’s conduct may be deemed culpable. V. In reviewing a default judgment, it is incumbent upon an appellate court to bear in mind the Supreme Court’s stricture in National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642-43, 96 S.Ct. 2778, 2780-2781, 49 L.Ed.2d 747 (1976): There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order. It is quite reasonable to conclude that a party who has been subjected to such an order will feel duly chastened, so that even though he succeeds in having the order reversed on appeal he will nonetheless comply promptly with future discovery orders of the district court. But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. In view of the Supreme Court’s willingness to uphold dismissal for failure to prosecute in Link and dismissal for failure to comply with a discovery order in National Hockey League, we do not believe that it is an abuse of discretion for a trial judge to enter a default judgment to sanction a party who has callously disregarded repeated notices of a judicial proceeding. However, out of an abundance of caution this case will be remanded to the district court to insure that the judgment adequately conforms to the evolved standards for procedural sanctions explicated above. On remand, the district court should evaluate the questions of prejudice and culpable conduct in light of Gross, Feliciano, and this opinion. APPENDIX In Hritz"
},
{
"docid": "22870324",
"title": "",
"text": "deposition of Batson’s husband; the defense of Batson’s motion to quash the deposition of Batson’s psychiatrist; the April 7 deposition of Batson; and the preparation and argument of Spelce’s motion for sanctions. The award of attorney’s fees and costs was based on Fed.R. Civ.P. 37 and 26, 28 U.S.C. § 1927 and decisions of the United States Supreme Court. Batson timely appeals. II The sole issue on appeal is whether the district court abused its discretion in sanctioning Batson by dismissing her complaint and awarding Spelee attorney’s fees and costs. In resolving this issue, we first consider whether the sanction of dismissal was appropriate. III A. It is firmly established that a district court is authorized under Fed.R.Civ.P. 37(b)(2)(C) to dismiss a complaint with prejudice when a party refuses to obey a valid discovery order. National Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (1976); Jones v. Louisiana State Bar Association, 602 F.2d 94, 96 (5th Cir.1979) (per curiam). In reviewing a dismissal by the district court, our duty is to decide not whether we would have dismissed the action as an original matter, but whether the district court abused its discretion in so doing. National Hockey League, 427 U.S. at 642, 96 S.Ct. at 2780; Jones, 602 F.2d at 96. In determining whether a district court abused its discretion, our precedent has addressed a number of considerations. First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. National Hockey League, 427 U.S. at 640, 96 S.Ct. at 2779; see also Marshall v. Segona, 621 F.2d 763, 767 n. 8 (5th Cir.1980). Next, dismissal is proper only in situations where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. Marshall, 621 F.2d at 768. Another consideration is whether the other party’s preparation for trial was substantially prejudiced. Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client,"
},
{
"docid": "8802492",
"title": "",
"text": "considered when reviewing a dismissal under Rule 37(b), Rule 41(b), or a court’s inherent power are largely the same). An order of the district court imposing sanctions under Rule 37(b) for willful failure to cooperate in discovery is reviewed under an abuse of discretion standard. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). Under Fed.R.Civ.P. 37(b)(2), a district court may sanction parties who fail to comply with its orders in a variety of ways, including dismissal of the lawsuit Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990). The' use of dismissal as a sanction for failing to comply with discovery has been upheld because it accomplishes the dual purpose of punishing the offending party and deterring similar litigants from misconduct in the future. National Hockey League, 427 U.S. at 642-43, 96 S.Ct. at 2780-81. In the present case, the district court’s pretrial order of January 25, 1995 set a August 31, 1995 date for discovery cutoff, yet the order allowed the parties to waive this date by agreement. Specifically, the order stated: Counsel may, by agreement, continue discovery beyond the cutoff date. No supervision or intervention by the Court, such as a Rule 37 proceeding, will occur after the cutoff date without a showing of extreme prejudice. The parties disputed whether or not there was an oral agreement to waive the August 31, 1995 discoveiy cutoff date in regard to the taking of depositions. The district court. took the side of defendant and immediately imposed on plaintiffs the drastic sanction of preclusion of expert witnesses, resulting in dismissal of their case, for failure to comply with the discovery cutoff date, even though the record indicated that defendant had agreed to depose two of plaintiffs’ expert witnesses on September 25,1995. Given this court’s prior decisions discussing the harshness of a sanction that deprives an innocent'party of their day in court, we believe the district court abused its discretion by intervening in the dispute about whether the discovery cutoff date had been waived on the"
},
{
"docid": "7364528",
"title": "",
"text": "with an entry of default was recognized by the United States Supreme Court in National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976). In that case, the Court upheld the district court’s default judgment under Rule 37 for the respondent’s failure to respond timely or adequately to interrogatories. Addressing the appropriate deference to the district court’s determination, the Court wrote: “There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order---- But here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Id. at 642-43, 96 S.Ct. 2778. This deferential standard was adopted by the Court of Appeals for this Circuit. Judge Starr described the appropriate review in Founding Church of Scientology of Washington, D.C. v. Webster, 802 F.2d 1448, 1457 (D.C.Cir.1986): “That is, needless to say, a rule of appellate restraint, a principle faithful to the reality that appellate tribunals cannot hope to have the entire range of considerations as readily at hand as the court charged with the case in the first instance. We rightly pay great deference, as the abuse-of-discretion standard itself suggests, to the District Court’s determination in such instances. Implicit in the governing standard is the recognition that the trial court has a better ‘feel,’ as it were, for the litigation and the remedial actions most appropriate under the circumstances presented.... The abuse-of-discretion standard calls upon the appellate department, in a spirit of humility occasioned by not having participated in what has gone before, not just to scrutinize the conclusion but to examine with care and respect the process that led up to it.” See also"
},
{
"docid": "18614193",
"title": "",
"text": "was extended, and finally passed. On March 30, 1990, the District Court entered default judgment against Profile Gear. Profile Gear disputes little of this sequence of events. It claims that it reasonably interpreted the language in certain orders in its favor and that the scope of the materials that it was to produce kept expanding. Even giving Profile Gear the benefit of the doubt, Profile Gear cannot dispute that it produced many documents months late and only after repeated prodding; that two sets of documents are missing under questionable circumstances; that Profile Gear was evasive and at times dishonest in its responses to discovery; and that Profile Gear blames its own lawyers for its failure to comply with the last chance that the District Court offered to avoid default. Of course, Profile Gear is not entitled to the benefit of the doubt; rather it must show that the District Court’s factual findings were clearly erroneous and that the sanctions were an abuse of discretion. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642-43, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 (1976) (per curiam) (reversing appellate court for failing to apply abuse of discretion standard to district court’s entry of default); United States v. Di Mucci, 879 F.2d 1488, 1494 (7th Cir.1989) (applying the “clearly erroneous” standard to the district court’s factual finding that a party failed to comply with discovery requirements and affirming entry of default judgment). The District Court’s findings of intentional delay and repeated dishonesty are adequately supported. After imposing four lesser sanctions and providing clear warning that default was imminent, the District Court did not abuse its discretion in entering a default judgment. For comparison, we note that this Court has stated that a district court need not impose any lesser sanctions prior to entering the sanction of default judgment. See, e.g., Hal Commodity Cycles Management Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir.1987) (“A district court is not required to fire a warning shot” prior to issuing a default judgment as a sanction). And even absent a finding of dishonesty, we"
},
{
"docid": "18285471",
"title": "",
"text": "to he imposed on the FDIC. It also appears, however, that the ultimate sanction of dismissal of the cases may not be found to be appropriate. Federal Rule of Civil Procedure 37 provides that whatever sanctions are “just,” including dismissal, may be applied against a party who fails to appear at his own deposition after being served with proper notice. The decision to sanction and the choice of the sanction lie with the discretion of the district judge. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). Defendants have asked this Court to dismiss all of Plaintiffs claims against them. The Court of Appeals has stated that “[d]is-missal with prejudice ‘is a harsh sanction’ which runs counter to our ‘strong policy favoring the disposition of cases on the merits.’ ” Figueroa Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir.1990) (quoting Rickman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.1971), and Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977)). The policy disfavoring dismissal is based upon the proposition that eases should be disposed of on the merits except in the most unusual circumstances. While the most severe sanction of dismissal must be available not merely to penalize egregious conduct but also to deter such conduct, National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781, fairness requires that some limits be placed on its use. Dismissal of an action under Rule 37(b)(2)(C) for failure to comply with a discovery order is a sanction of last resort, applicable only in extreme circumstances, to the most flagrant of discovery abuses. See Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535 (1st Cir.1988) (Lack of hearing prior to dismissal of plaintiffs case because of his failure to obey discovery order does not offend due process where plaintiff had ample warning of consequences of his failure to comply with court’s orders.); Toth v. Trans World Airlines, Inc., 862 F.2d 1381 (9th Cir. 1988) (Dismissal was warranted where appellants continuously refused to respond to discovery requests even after"
},
{
"docid": "23246973",
"title": "",
"text": "“dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” Fed.R.Civ.P. 37(b). Rule 37(d) further authorizes a court to impose similar sanctions on any party who fails to appear for the taking of his deposition after being served with proper notice, or fails to serve answers or objections to interrogatories properly submitted under Federal Rule of Civil Procedure 33. It is well settled, under the standards set forth in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (1976) (per curiam), and Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255 (1958), that the entry of a dismissal or default judgment under Rule 37 requires a showing of “willfulness, bad faith, or fault” on the part of a non-complying party. It is equally well settled that the choice of an appropriate discovery sanction is primarily the responsibility of the trial judge and will not be reversed absent an abuse of discretion. National Hockey League, supra, 427 U.S. at 642, 96 S.Ct. at 2780; Charter House Insurance Brokers, Ltd. v. New Hampshire Insurance Co., 667 F.2d 600, 605 (7th Cir. 1981). In the instant case, the district court made specific factual findings regarding Hindmon’s lack of good faith and willful failure to cooperate in the discovery process. On November 24, 1980, the district court denied National-Ben’s first Motion for Sanctions, but pointedly warned both litigants “that if the plaintiff does fail to comply with this Court’s order of November 19,1980 and, further, fails to appear for his deposition, the sanctions requested in this motion [i.e. dismissal and default judgment] will be appropriate.” Appellee’s Appendix at 89 (transcript of November 24, 1980 hearing). Despite this warning, Hindmon failed to appear for his deposition on the appointed date, failed to properly answer defendant’s Interrogatories, and failed to respond to defendant’s Request for Production within the time limit set by the district court. Moreover, at no time did Hindmon seek an extension of time to answer the interrogatories or"
},
{
"docid": "23022521",
"title": "",
"text": "or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;.... Rule 37(d) provides that in the event of a failure to appear for a deposition or to serve answers to interrogatories, the court “may make such orders in regard to the failure as are just” including the actions described under 37(b)(2), or may require the payment of reasonable expenses. Dismissal under Fed.R.Civ.P. 37 is a matter for the discretion of the district court. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam). We review the dismissal for abuse of discretion, see Carter v. Albert Einstein Medical Center, 804 F.2d 805, 807 (3d Cir.1986); Ali v. Sims, 788 F.2d 954, 957 (3d Cir.1986). We review the district court’s findings of fact on a clearly erroneous standard. See Ellis v. Ringgold School Dist., 832 F.2d 27, 29 (3d Cir.1987). In National Hockey League v. Metropolitan Hockey Club, Inc., the Supreme Court reversed a decision of this court and held that the district court did not abuse its discretion in dismissing a complaint under Rule 37 where the district court had found that the plaintiff demonstrated “ ‘flagrant bad faith’ ” and its counsel’s conduct amounted to “ ‘callous disregard’ of [his] responsibilities.” 427 U.S. at 643, 96 S.Ct. at 2781. The Supreme Court noted that although the party before the appellate court may be chastened by the dismissal granted by the lower court and hence may be likely to comply with future discovery orders, the deterrent effect of sanctions on other parties should not be underestimated lest “other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts.” Id. at 643, 96 S.Ct. at 2781. The Court firmly stated the need for deterrence: There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for"
},
{
"docid": "23484541",
"title": "",
"text": "whether this Court, or whether the Court of Appeals, would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing. “There is a natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order. It is quite reasonable to conclude that a party who has been subjected to such an order will feel duly chastened, so that even though he succeeds in having the order reversed on appeal he will nonetheless comply promptly with future discovery orders of the District Court. “But here as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the District Court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. . .” National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). We think that the policy considerations enunciated by the Supreme Court in National Hockey League are fully applicable to defaults under Rule 37(b)(2)(C). In the present case, while we are well aware of “the severity of [default] as a sanction for failure to comply with a discovery order,” id., and while we are not without sympathy for those who will have to bear the cost of this judgment, we cannot say that the district court abused its discretion when it defaulted defendant. Cf. Roberson v. Christoferson, 65 F.R.D. 615, 620-21 & n.2 (D.N.D.1975). The facts in this case are somewhat unusual. The associate of the Massachusetts firm representing the defendant severed his connections therewith some time ago, and moved to Maine. The firm allowed him to continue to handle this, and some other cases. Having full confidence in his abilities, it did not check with him with respect to"
},
{
"docid": "314378",
"title": "",
"text": "actually involved in the lawsuit “so that parties can accurately appraise their cases and substantially reduce the danger of surprise at trial.” 6A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 1522, at 218 (1990). When properly applied, Rule 16 aids in the elimination of extraneous disputes from a case, thereby expediting the determination on the merits. Id. at 219. Rule 16(f) provides, in pertinent part: “If a party or party’s attorney fails to obey a scheduling or pretrial order ..., the judge, upon motion or the judge’s own initiative, may make such orders with regard thereto as are just_” Rule 16(f) specifically enumerates certain sanctions that may be appropriate when scheduling and pretrial orders are not followed. The references in Rule 16(f), however, are not exhaustive. Fed.R.Civ.P. 16 (Advisory Notes regarding 1983 amendment). In addition to assessing costs and attorney fees, a wide range of sanctions short of dismissal or default are available to courts. See 6A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 1531, at 314 (1990). Refusal to consider an objection made in contravention of a district court’s scheduling order is merely one suitable sanction. The district court has discretion to impose whichever sanction it feels appropriate under the circumstances. See United States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir.1980) (broad powers of enforcement inure to a pretrial order limiting issues to be tried and evidence to be introduced). Its action is reviewable under the abuse of discretion standard. Cf. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam) (abuse of discretion standard of review applied to district court’s dismissal of antitrust action pursuant to Fed.R.Civ.P. 37 for party’s failure to comply with discovery order). The district court’s January 27, 1989 revised and amended scheduling order provided in pertinent part: At least by January 31, 1989, the parties will disclose to each other any depositions which they intend to read into evidence at the trial and will designate portions of such depositions to"
},
{
"docid": "4433294",
"title": "",
"text": "a district court to enter judgment as a discovery sanction: “Entrance of default judgment against the defendants ... [is] an unmistakable message to them and to others that the judicial system will not tolerate repeated misconduct never wholly remedied in the future. To find otherwise would be to send the opposite message that the court may be pushed, ignored and defied to the outermost limits so long as the noncomplying party has even an inadequate fallback act ready in the wings should the final curtain be falling.” Id. at 94. Accord, Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 642-43, 96 S.Ct. 2778, 2780-81, 49 L.Ed.2d 747 (1976) (approving district court’s dismissal under “abuse of discretion” standard and noting its deterrence value to other plaintiffs); Hyde & Drath v. Baker, 24 F.3d 1162 (9th Cir.1994) (affirming district court’s dismissal of a plaintiff who claimed he could not attend a deposition due to illness); Phipps v. Blakeney, 8 F.3d 788 (11th Cir.1993) (allowing dismissal without explicit consideration of less severe sanctions when plaintiff refused to follow discovery orders even after threatened with dismissal). Cf. Wilson v. Volkswagen of America, Inc. 561 F.2d 494, 503-04 (4th Cir.1977) (explaining that default judgment should not be granted unless the plaintiff has demonstrated “flagrant bad faith” or “ ‘callous disregard’ of its obligation under the Rules”) (quoting Nat’l Hockey League v. Metro. Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976)), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978); Toma v. City of Weatherford, 846 F.2d 58 (10th Cir.1988) (excusing plaintiffs failure to appear at deposition on short notice when defendant knew that plaintiff was at police academy in a different state and could not attend); Griffin v. Aluminum Co. of Am., 564 F.2d 1171 (5th Cir.1977) (distinguishing single failure to appear at deposition due to misunderstanding of discovery rules, for which monetary sanction may be appropriate, from repeated violations and/or bad faith, for which dismissal may be appropriate). In this case, the magistrate judge found that Plaintiff was acting in bad faith. Defendants"
},
{
"docid": "17238134",
"title": "",
"text": "motions going to the issue of ownership should have been deemed irrelevant. Fonseca further contends that he has a right to the suitcase and its contents because he holds the baggage claim check and has otherwise completely complied with applicable Customs regulations. Finding considerable merit to these arguments, we reverse the judgments of the district court and remand with instructions to it to reinstate Fonseca’s complaint and dismiss the government’s interpleader action. II. ANALYSIS Rule 37 of the Federal Rules of Civil Procedure provides generally for sanctions against parties who unjustifiably resist discovery, the most severe of which are dismissal and judgment by default pursuant to Rule 37(b)(2)(C). District courts have broad discretion to invoke these sanctions, see, e.g., Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974), and the scope of appellate review is focused on whether the trial court managed its affairs within the permissible range of its discretion, Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962), in light of the entire record in the case. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976) (per curiam). Here, where the information sought is not properly discoverable, it is axiomatic that a district court should not impose a Rule 37 sanction for a party’s failure to comply with an order to reveal such information. The basic rule governing the permissible scope of discovery, Fed.R.Civ.P. 26(b), provides in pertinent part that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action....” Thus, the crucial issue in this case is whether the interrogatories, documents sought and likely topics at deposition were “relevant to the subject matter involved”— i.e., Fonseca’s right to the return of the currency. Although we have had little occasion to write on this point, the Fifth Circuit’s opinion in Dunbar v. United States, 502 F.2d 506 (5th Cir.1974), is particularly instructive. In that case claimant Dunbar sent a package to a friend through the United States mails."
},
{
"docid": "23416169",
"title": "",
"text": "a $1 million default judgment was entered in the district court against them. Thereafter, defendants filed a motion seeking to set aside the default judgments pursuant to Fed.R.Civ.P. 60(b). Defendants asserted that the judgments should be set aside because they were the result of a fraud upon the court committed by plaintiff and because an investigator hired by the defendants had discovered new evidence revealing this fraud. Judge Goettel denied the motion on September 2, 1988. DISCUSSION In Update Art, Inc. v. Modiin Publishing, Ltd., 843 F.2d 67, 73 (2d Cir.1988), we “emphasize[d] the importance we place on a party’s compliance with discovery orders,” and we warned that “[a] party who flouts such orders does so at his peril.” Although we then viewed our decision as “strong medicine,” id., today we find it necessary to renew the prescription. Defendants contend that entry of a default judgment is too severe a sanction for failing to appear for deposition. Specifically, they argue that the district court abused its discretion by not imposing “softer sanctions.” This argument, however, ignores both the clear language of Rule 37 of the Federal Rules of Civil Procedure and the cases dealing with its application. Fed.R.Civ.P. 37(b)(2)(C) provides that when a party fails to comply with a discovery order, a court may “render[] a judgment by default against the disobedient party.” Rule 37 also provides a range of sanctions less harsh than the entry of a default judgment. The mere availability of softer sanctions, however, does not bar a court from imposing the default sanction. As the Supreme Court recognized, here, as in other areas of the law, the most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976). Were we to adopt"
},
{
"docid": "22477850",
"title": "",
"text": "1988 was still either deficient or inaccurate. II. The defendants concede that they did not timely respond to the several discovery orders of Magistrate Conrad, but insist that they eventually did respond, although those responses were found to be incomplete and often-times unsigned. The defendants also argue that their eleventh hour attempt to comply with Magistrate Conrad’s suggestions from the bench during the hearing on the plaintiffs’ Sixth Motion to Compel or for Default Judgment brought them into full compliance with the outstanding discovery orders and, therefore, prevented the magistrate from recommending, and the district court from entering, judgment by default. The contentions are without merit. The camel’s back has been broken. Rule 37(d) of the Federal Rules of Civil Procedure gives the district court wide discretion to impose sanctions for a party’s failure to comply with its discovery orders. Thus, it is only for an abuse of discretion that a reviewing court may reverse the decision of the district court. National Hockey League v. Metropolitan Hockey Club Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747 (1976). See generally 8 C. Wright & A. Miller, Federal Practice and Procedure § 2284 (1970 & Supp.1988). In National Hockey League, the Supreme Court also cautioned the Third Circuit, which had reversed the district court’s decision to dismiss the case, against the “natural tendency on the part of reviewing courts, properly employing the benefit of hindsight, to be heavily influenced by the severity of outright dismissal as a sanction for failure to comply with a discovery order.” Id. When the sanction involved is judgment by default, the district court’s “range of discretion is more narrow” because the district court’s desire to enforce its discovery orders is confronted head-on by the party’s rights to a trial by jury and a fair day in court. See Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503-04 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978). As we recognized in Wilson, those competing interests require the application of a four-part test: (1) whether the noncomplying party acted"
},
{
"docid": "18385565",
"title": "",
"text": "Plaintiff has now filed this motion for sanctions, seeking a judgment against the defendant for his failure to comply with the court’s order. In support of the motion, the plaintiff has submitted the affidavit of Honorable James J. Jenkins, one of plaintiff’s counsel of record. Mr. Jenkins states that he was contacted by the defendant, and was informed that the defendant did not have the records which he was ordered to produce. This is the only contact which Mr. Jenkins had with the defendant. For this failure to comply with the court’s order, plaintiff seeks a judgment against the defendant, as well as an award of reasonable attorney’s fees incurred in seeking sanctions. Rule 37(b)(2) provides, in pertinent part, as follows: If a party . . . fails to obey an order to provide or permit discovery . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. The imposition of any of these available sanctions is within the discretion of this court, and should not be disturbed absent a flagrant abuse of that discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642, 96 S.Ct. 2778, 2780, 49 L.Ed.2d 747, 751 (1976). The decision in National Hockey League was the first Supreme Court interpretation of Rule 37 since the 1970 amendments, which deleted the requirement of “wilfulness” in failure to obey discovery requests. See E. Epstein, An Update on Rule 37 Sanctions After National Hockey League v. Metropolitan Hockey Clubs, Inc., 84 F.R.D. 145 (1980). The court did not specifically address itself to the question of wilfulness as a prerequisite to sanctions, but it did hold that the district court did not abuse its discretion in dismissing the action upon a finding of “flagrant bad faith” and “callous disregard” of responsibilities. The district"
}
]
|
619641 | "must establish: ""(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor."" MyWebGrocer, LLC v. Hometown Info., Inc. , 375 F.3d 190, 192 (2d Cir. 2004) (quoting Merkos L'Inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc. , 312 F.3d 94, 96 (2d Cir. 2002) ). A preliminary injunction is generally not appropriate where monetary damages will serve as adequate compensation. See Tucker Anthony Realty Corp. v. Schlesinger , 888 F.2d 969, 975 (2d Cir. 1989) ; REDACTED (citations omitted) ). Under the first prong of the test, ""[t]o establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent."" Id. (citations omitted). With regard to the second prong, where a party seeks a preliminary injunction that will affect governmental action ""taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard."" Sussman v. Crawford , 488 F.3d 136, 140 (2d Cir. 2007) (citations omitted); accord, Lynch v. City" | [
{
"docid": "15223630",
"title": "",
"text": "decision of the Supreme Court which abolished the antiquated legal-equitable distinction governing the appealability of stays under § 1292(a)(1) and reaffirmed the principle that “orders that have the practical effect of granting or denying injunctions and have ‘ “serious, perhaps irreparable, consequence,” ’ ” are appealable. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287-88 (1988) (citations omitted). Applying to the instant case the principles formulated in decisions of the Supreme Court and most recently by our court in Korea Shipping, we fail to see how an order denying quia timet and exoneration relief will cause serious or irreparable consequences. Northwestern contends that irreparable harm will ensue since it will be deprived permanently of its equitable rights of quia timet and exoneration. In determining whether irreparable harm exists, the critical inquiry is not whether the surety’s rights are lost, but whether the loss of those rights will cause serious or irreparable harm. Behind Northwestern’s claim for quia timet and exoneration relief, it is evident that both rights merely contemplate money payments during the pendency of the action. The nature of the relief sought being monetary compensation, there is no reason why Northwestern cannot be made whole upon resolution of the merits. We have often held that “irreparable injury means injury for which a monetary award cannot be adequate compensation”. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2 Cir.1979) (per curiam); see also JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2 Cir.1990); Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2 Cir.1989); Sperry Intern. Trade, Inc. v. Government of Israel, 670 F.2d 8, 12 (2 Cir.1982). In a few instances, however, we have recognized exceptions to this general rule and found irreparable harm where a party sought only money damages. E.g., Tucker, supra, 888 F.2d at 975 (monetary award post-judgment would be insufficient to prevent plaintiffs insolvency); In re Feit & Drexler, Inc., 760 F.2d 406, 416 (2 Cir.1985) (threat of extra-jurisdictional transfer or dissipation of assets); see also United States v. First Nat’l City Bank, 379 U.S. 378,"
}
]
| [
{
"docid": "15429680",
"title": "",
"text": "be subject to judicial review. (See id. ¶ 64.) Plaintiff estimates that it will lose $3 million annually in Medicare reimbursement if its reclassification application is denied. (See Inzana Decl. [Doc. # 4-3] ¶ 9.) Thus, Plaintiff now seeks a preliminary injunction to stay the hand of the MGCRB and enjoin it from ruling on Plaintiffs application before the Court can hold a hearing on the merits of its challenge to Defendants’ regulatory scheme. II. Legal Standard “[A] preliminary injunction is an extraordinary remedy that should not be granted as a routine matter.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir.1990). Generally, a party seeking a preliminary injunction must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir.2010) (internal citations and quotation marks omitted). “When, as here, the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard.” Cnty. of Nassau, N.Y. v. Leavitt, 524 F.3d 408, 414 (2d Cir.2008) (internal citations and quotation marks omitted). “That is, [PJlaintiff must establish a clear or substantial likelihood of success on the merits.” Id. (internal citations and quotation marks omitted). III. Discussion Defendants oppose Plaintiffs motion for a preliminary injunction, arguing that the Court lacks subject matter jurisdiction over Plaintiffs claim, and that Plaintiff cannot show, irreparable harm, a likelihood of success on the merits, or that the balance of the hardships weighs in its favor. A. Subject Matter Jurisdiction As a preliminary matter, Defendants argue that the Court lacks subject matter jurisdiction over this dispute because the decisions of the MGCRB are not subject to judicial review. There is a well-settled presumption of judicial review"
},
{
"docid": "3355857",
"title": "",
"text": "district court’s view, the product descriptions in issue were not sufficiently creative to be copyrighted because, although MyWeb’s information gathering process was “painstaking,” “MyWeb exercises virtually no discretion in choosing what facts to include in a product description, and the arrangement of those facts is largely dictated by the use to which the facts are put.” My WebGrocer, LLC v. Hometown Info., No. 2:03-CV-114, Memorandum and Order at 10 (D.Vt. Aug. 4, 2003). This appeal followed. DISCUSSION A party seeking a preliminary injunction must demonstrate “(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.” Merkos L’inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir.2002) (internal citation omitted). We review the denial of a preliminary injunction for abuse of discretion. Id. MyWeb has satisfied the irreparable harm prong of the preliminary injunction test. It appears undisputed that the product descriptions written by MyWeb were copied by HomeTown. Furthermore, for reasons discussed infra, HomeTown has not met its burden of rebutting MyWeb’s prima facie evidence of the validity of its copyright. See 17 U.S.C. § 410(c) (certificate of registration from United States Register of Copyrights is prima facie evidence of ownership of valid copyright); Hamil America, Inc. v. GFI, 193 F.3d 92, 98 (2d Cir.1999) (alleged infringer bears the burden of rebutting presumption of copyright validity). Thus, MyWeb has established a prima facie case of infringement, and “when a copyright plaintiff makes out a prima facie showing of infringement, irreparable harm may be, presumed.” Otsar Sifrei Lubavitch, 312 F.3d at 96 (internal quotation marks omitted). However, MyWeb has not satisfied the second prong of the preliminary injunction standard — a showing either of likelihood of success on the merits or of fair grounds for litigation and a balance of hardships tipping decidedly in its favor. See id. (applying preliminary injunction standard in copyright case). A compilation of non-protectible"
},
{
"docid": "10488257",
"title": "",
"text": "their identity may be obtained by defendants and revealed to others, such as family members. IV. CONCLUSIONS OF LAW A. Standing In Terry, the Second Circuit held that health care providers have independent standing to assert the rights of their patients to travel freely and to obtain abortion services. The court reasoned that a patient’s “enjoyment of those rights is inextricably bound up with the activity the litigant wishes to pursue,” and thus, the court could be “assured that the clinics represent the rights and interests of the women seeking their assistance.” Terry, 886 F.2d at 1348 (citations omitted). The court also held that “pro-choice” organizations have standing as representatives of their membership. Id. at 1349. B. Preliminary Injunction It is well-established in the Second Circuit that a preliminary injunction may be granted only where the movant establishes (1) irreparable harm (if the injunction is not granted), and (2) either (a) the likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir.1989); Johnson v. Kay, 860 F.2d 529, 540 (2d Cir.1988); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). 1. Irreparable Harm “[A] finding of irreparable harm is an' absolute prerequisite to the issuance of an injunction....” Fireman’s Fund Ins. Co. v. Leslie & Elliot Co., 867 F.2d 150, 151 (2d Cir.1989). To establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent. The injury must be one requiring a remedy of more than mere money damages. A monetary loss will not suffice unless the movant provides evidence of damage that cannot be rectified by financial compensation. Tucker Anthony Realty Corp., 888 F.2d at 975 (citations omitted). A deprivation of constitutional rights that cannot be repaired by an award of damages constitutes irreparable injury. Abdul Wali v. Coughlin, 754 F.2d 1015, 1026 (2d Cir.1985); Mitchell v. Cuomo, 748 F.2d"
},
{
"docid": "6362086",
"title": "",
"text": "a case, “the district court may grant a preliminary injunction if the moving party establishes (1) irreparable harm and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.” Lynch v. City of N.Y., 589 F.3d 94, 98 (2d Cir.2009). However, “when the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard.” Beal v. Stern, 184 F.3d 117, 122 (2d Cir.1999) (internal quotation marks and citation omitted). “A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act and thus alters the traditional formula by requiring that the movant demonstrate a greater likelihood of success.” Mastrovincenzo, 435 F.3d at 89 (internal alterations and quotation omitted). “[A] district court may enter a mandatory preliminary injunction against the government only if it determines that, in addition to demonstrating irreparable harm, the moving party has shown a ‘clear’ or ‘substantial’ likelihood of success on the merits.” Mastrovincenzo, 485 F.3d at 89 (emphasis omitted). “[T]he distinction between mandatory and prohibitory injunctions is not without ambiguities or critics.” Jolly v. Coughlin, 76 F.3d 468, 474 (2d Cir.1996). Moreover, “many mandatory injunctions can be stated in seemingly prohibitory terms.” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.8d 27, 84 (2d Cir.1995). Accordingly, courts in this Circuit impose the heightened “substantial likelihood of success” standard where, “[tjhough the order is prohibitory in form, rather than mandatory, it accomplishes significantly more than preservation of the status quo.” SEC v. Unifund SAL. 910 F.2d 1028, 1040 (2d Cir.1990). Monserrate seeks to enjoin enforcement of a Senate Resolution, his removal from the State payroll, and the Special Election procedures now underway. This would not preserve the status quo. On the contrary, it would fundamentally “change the positions of the parties as [they] existed prior"
},
{
"docid": "12551399",
"title": "",
"text": "the court of the applicant’s likelihood of prevailing on the merits and of irreparable injury, the court temporarily stays such administrative action pending disposition of such trial or appeal. . The same standard will be applied in determining whether the plaintiff is entitled to a preliminary injunction against the State of New York requiring it to reinstate plaintiff in the WIC Program. Ordinarily, to obtain a preliminary injunction the movant must show “both irreparable harm and a likelihood of success on the merits or a sufficiently serious question regarding the merits to make it a fair ground for litigation with the balance of hardship tipping decidedly in its favor.\" Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir. 1989) (citations omitted). However, when the moving party seeks to enjoin governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the Second Circuit has held that an injunction should issue only if the plaintiff proves irreparable injury and a likelihood of success on the merits. See Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989); Union Carbide Agricultural Prods. Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981). This heightened standard is applicable in the instant case, since the governmental action is taken in the public interest — it ensures that the limited funds available for the WIC Program benefit needy participants by removing from the program vendors who have violated their WIC contracts and WIC regulations. . 7 U.S.C. § 2023(a) provides in relevant part: The suit in the United States district court or State court shall be a trial de novo by the court in which the court shall determine the validity of the questioned administrative action in issue____ . The allegations and affidavits of plaintiff, taken together, reveal numerous inconsistencies in plaintiffs story with respect to the assistance he received in the DOH pre-hearing conference. Initially, plaintiff alleged that at the time of the DOH Order \"he was not represented by any attorney nor [were] the"
},
{
"docid": "22833459",
"title": "",
"text": "its arrangement with France Presse. Because the district court believed the first irreparable injury claim to be com-pensable in money damages and the second claim to be speculative, it concluded that UPI had failed to establish irreparable harm. UPI appealed and on March 15, 1990 moved in this Court for a stay and an expedited appeal. On March 20 UPI’s motion was granted. During oral argument of the expedited appeal the stay was extended pending this decision. We now reverse. DISCUSSION I Requirements for Issuance of a Preliminary Injunction It is well established in this Circuit that a party seeking a preliminary injunction must show that it is likely to suffer possible irreparable injury if the injunction is not granted and “either (1) a likelihood of success on the merits of its case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor.” Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 314-15 (2d Cir.1982). See also, Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 972 (2d Cir.1989); Video Trip Corp. v. Lightning Video, Inc., 866 F.2d 50, 52 (2d Cir.1989); New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 755-56 (2d Cir.1977). Because a showing of probable irreparable harm is “ ‘the single most important prerequisite for the issuance of a preliminary injunction,’ ” Bell & Howell: Mamiya Co. v. Masel Co. Corp., 719 F.2d 42, 45 (2d Cir.1983) (quoting 11 C. Wright & A. Miller, Federal Practice & Procedure § 2948, at 431 (1973)), the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered. Irreparable harm must be shown by the moving party to be imminent, not remote or speculative, Tucker, 888 F.2d at 975, and the alleged injury must be one incapable of being fully remedied by monetary damages. Id.; Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917-18 (2d Cir.1986). II Appellate Review Whether a preliminary injunction should issue or not rests in"
},
{
"docid": "6536899",
"title": "",
"text": "thus entitling a plaintiff to a preliminary injunction if he shows a likelihood of success on the merits. Rather the plaintiffs must show “a chilling effect on free expression.” It is “purposeful unconstitutional [government] suppression of speech [which] constitutes irreparable harm for preliminary injunction purposes.” Accordingly, it is the “direct penalization, as opposed to incidental inhibition, of First Amendment rights [which] constitutes irreparable injury.” Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction. Hohe v. Casey, 868 F.2d 69, 72-78 (3d Cir.) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689-90, 49 L.Ed.2d 547 (1976)) (other citations omitted), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989). See also Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir.1996); Shea on Behalf of Am. Reporter v. Reno, 930 F.Supp. 916, 935 (S.D.N.Y.1996), petition for cert. filed, 65 U.S.L.W. 3323 (U.S. Oct. 15, 1996) (No. 96-595). For the second prong of the preliminary injunction standard, the Second Circuit has recently reaffirmed that in cases requiring an injunction against the government, the plaintiff must show likelihood of success: Ordinarily, the movant then has two options: it must either demonstrate a likelir hood of success on the merits or it must raise “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” However, in a case in which “the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” the injunction should be granted only if the moving party . meets the more rigorous likelihood-of-success standard. Bery, 97 F.3d at 694 (citations omitted). B. The City’s Actions Violate the Cable Act. A judgment of whether particular programming violates Section 531(a) must be grounded in an understanding of the structure of the Cable Act itself, the programming environment in which Congress imposed the regulatory structure, and the legislative history explaining the purposes and content of Section 531(a). The franchise agreements"
},
{
"docid": "13901724",
"title": "",
"text": "e.g., Maleng v. Cook, 490 U.S. 488, 493, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989); Villanueva v. United States, 346 F.3d 55, 63 (2d Cir.2003); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir.1997). Indeed, a number of courts in this district and elsewhere have permitted challenges to the BOP’s 10% policy under § 2241. See, e.g., Zucker v. Menifee, No. 03 Civ. 10077(RJH), 2004 WL 102779, at *3 (S.D.N.Y. Jan.21, 2004); Adler v. Menifee, 293 F.Supp.2d 363, 366-67 (S.D.N.Y.2003); Benton v. Ashcroft, 273 F.Supp.2d 1139, 1143 (S.D.Cal.2003). Therefore, this Court’s exercise of subject matter jurisdiction under § 2241 is appropriate. II. Standards For Injunctive Relief “[Preliminary injunctive relief is an extraordinary remedy and should not be routinely granted.” Patton v. Dole, 806 F.2d 24, 28 (2d Cir.1986); accord No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.2001). Normally, “[a] party seeking a preliminary injunction in this Circuit must show: (1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and, a balance of hardships tipping decidedly in the movant's favor.” Random House, Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir.2002). However, where the movant “seeks a preliminary injunction that will affect ‘government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard.’ ” No Spray Coalition, 252 F.3d at 150 (quoting Beal v. Stern, 184 F.3d 117, 122 (2d Cir.1999)); see also Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir.1999) (where an injunction “will alter rather than maintain the status quo,” movant must show “clear” or “substantial” likelihood of success). Consequently, Cohn’s motion must meet the more stringent likelihood-of-success test. See No Spray Coalition, 252 F.3d at 150. III. The BOP’s Interpretation of § 3621(c) Where, as here, Congress has delegated authority to an agency to administer a statute but not to"
},
{
"docid": "15128869",
"title": "",
"text": "federal law. Accordingly, defendants’ motion for abstention is denied. III. MOTION FOR PRELIMINARY INJUNCTION A. Applicable Legal Standard A party seeking to obtain a preliminary injunction must normally satisfy a two-prong test: it must (i) establish that it will suffer irreparable harm in the absence of an injunction; and (ii) demonstrate either (a) “likelihood of success on the merits” or (b) “sufficiently serious questions going to the merits to make them a fair ground of litigation and a balance of hardships tipping decidedly in its favor.” Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996). Where, as here, the moving party seeks to enjoin “government action taken in the public interest,” and seeks a mandatory injunction, one that will “alter the status quo by commanding a positive act”, Jolly, 76 F.3d at 473-74, the second prong of the standard is more rigorous; plaintiff must demonstrate “a clear and substantial likelihood of prevailing on the merits”. See id. The Court notes at the outset that a district court’s issuance of an injunction is reviewed for abuse of discretion: applying “incorrect legal standards” or relying on “clearly erroneous findings of fact”. North Atlantic Instruments, Inc. v. Haber, 188 F.3d 38, 43 (2d Cir.1999)(collecting cases). B. Irreparable Harm In order to satisfy the first prong for the issuance of a preliminary injunction, plaintiff must demonstrate that it “would be irreparably harmed if the injunction were not granted.” NAACP v. Town of East Haven, 70 F.3d 219, 224 (2d Cir.1995). “A moving party must show that the injury it will suffer is likely and imminent, not remote or speculative, and that such injury is not capable of being fully remedied by money damages.” Id.; see also Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). “Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction.” Bery v. City of New York, 97 F.3d 689, 691 (2d Cir.1996)(involving artists challenging city law requiring vendors’ licenses in order to sell visual art in public places)(citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49"
},
{
"docid": "859745",
"title": "",
"text": "and sold by defendants with the words “Boar’s Head” as opposed to “Blue Boar” underneath the Blue Boar Mark. Plaintiffs seek to enjoin defendants’ use of the mark “Boar’s Head” in conjunction with the marketing and sale of Boar’s Head Beer. Plaintiffs do not challenge defendants’ use of the Blue Boar Mark in conjunction with any beer sold by defendants. DISCUSSION In order for a preliminary injunction to issue, plaintiffs must demonstrate (1) irreparable harm and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. See Communications Workers of America, Dist. One, AFL-CIO v. NYNEX Corp., 898 F.2d 887, 891 (2d Cir.1990); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206-07 (2d Cir. 1979). The showing of irreparable harm is the “single most important prerequisite for the issuance of a preliminary injunction,” Bell and Howell v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983), and the moving party must show that injury is likely before the other requirements for an injunction will be considered. Irreparable harm must be shown to be imminent, not remote or speculative, and the injury must be such that it cannot be fully remedied by monetary damages. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). In a trademark case, establishing a “high probability of confusion as to sponsorship almost inevitably establishes irreparable harm” and is also evidence of probable success on the merits. Church of Scientology Int’l v. Elmira Mission of Church of Scientology, 794 F.2d 38, 41 (2d Cir.1986); Tetley, 556 F.Supp. at 788 (E.D.N.Y.1983) (“the issues of irreparable injury and success on the merits are intertwined”). Since the likelihood of confusion standard is relevant to both elements of the preliminary injunction test, the issue of irreparable injury will be addressed after consideration of plaintiffs’ likelihood of success on the merits. The standard by which to judge likelihood of success is whether the plaintiffs “make a"
},
{
"docid": "6141824",
"title": "",
"text": "rendered by the court. DISCUSSION I. Preliminary Injunction Standard A plaintiff who seeks to obtain a preliminary injunction based on alleged violations of First Amendment rights must demonstrate, first, that he or she is likely to suffer irreparable harm if the allegations are correct, and second, that there is a likelihood of prevailing on the merits of the action. See Bery v. City of New York, 97 F.3d 689 (2d Cir.1996). The first part of the test is necessarily satisfied in a First Amendment challenge, since “ ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’” Hsu v. Roslyn Union Free School District, 85 F.3d 839, 853 (2d Cir.1996) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)); Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.1996). In order to satisfy the second part of the test, [o]rdinarily, the movant then has two options: it must either demonstrate a likelihood of success on the merits or it must raise “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” However, in a ease in which “the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,” the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard. Bery, 97 F.3d at 693 (citations omitted). Since plaintiffs’ action here challenges a government action taken in the public interest pursuant to a statutory or regulator scheme, the higher standard applies. Thus, the court will grant plaintiffs’ motion for an injunction only if plaintiffs can show a likelihood of success on the merits. II. Is Selling Newspapers from Newsstands Erected on City Sidewalks a Protected Activity Under the First Amendment? Plaintiffs’ constitutional claims are premised on the assumption that the operation of a newsstand is an activity protected by the First Amendment. The First Amendment status of a newsstand, however, has not been addressed"
},
{
"docid": "23348491",
"title": "",
"text": "the building could free up seven spaces simply by enforcing its own rules that each apartment should be allocated only one parking space and that spaces should only go to residents. Id. DISCUSSION 1. Legal Standards for Preliminary Injunctions The standard for issuance of a preliminary injunction is well settled in this Circuit: The party seeking the injunction must demonstrate (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief. Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991). “This second ‘serious questions’ prong is also frequently termed the ‘fair ground for litigation’ standard.” Able v. United States, 44 F.3d 128 (2d Cir.1994) (per curiam). Because Cadman Towers’ challenged policy is not “government action taken ... pursuant to a statutory or regulatory scheme,” id., the injunction issued by the district court is sustainable if either standard is met, see id. We review the district court’s issuance of an injunction for an abuse of discretion. Resolution Trust, 949 F.2d at 626. “Such an abuse of discretion typically consists of either applying incorrect legal standards or relying on clearly erroneous findings of fact.” Id. 2. Irreparable Harm A showing of irreparable harm is essential to the issuance of a preliminary injunction. See Sperry Int’l Trade, Inc. v. Government of Israel, 670 F.2d 8, 11-12 (2d Cir.1982). To establish irreparable harm, the movant must demonstrate “an injury that is neither remote nor speculative, but actual and imminent” and that cannot be remedied by an award of monetary damages. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989) (quotation omitted). Here, the district court premised its determination of irreparable harm upon its finding that Shapiro was subject to risk of injury, infection, and humiliation in the absence of a parking space in her building. Specifically, the court found that Shapiro suffers from “an incurable disease that gradually and progressively saps her strength and interferes with her balance"
},
{
"docid": "6816665",
"title": "",
"text": "if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.1991). The comparison of the first two factors, the likelihood of harm to each party, is the most important consideration. Id. The plaintiff must demonstrate harm that is “ ‘neither remote nor speculative, but actual and imminent.’ ” Id. (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989)). Once the court has balanced the harm to each party, it must determine the degree to which the plaintiff is required to demonstrate a likelihood of success on the merits. Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997). If the balance of the harms “tips decidedly in favor of the plaintiff, a preliminary injunction -will be granted if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.” Direx Israel, 952 F.2d at 812 (quoting Rum Creek Coal Sales, Inc. v. Caperton, 926 F.3d 323, 359 (4th Cir.1991)). If the balance of harms tips away from the plaintiff, the plaintiff must make a stronger showing of probable success on the merits. Id. Only after the court has “balanced the hardships, determined the required showing of likelihood of success on the merits and analyzed that likelihood” does the court analyze the final factor, the public interest. Manning, 119 F.3d at 264. B. Preliminary Injunction in the Context of Copyright Infringement In the context of copyright law, however, a lower standard of proof is applied to motions for preliminary injunctions in this circuit. Under Fourth Circuit precedent, if a plaintiff establishes a prima facie case of copyright infringement, a court is “entitled to presume that ... [the plaintiff] could show both probable likelihood of success on the merits and irreparable harm.” Serv. & Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 690 (4th Cir.1992). Although the Fourth Circuit has not made clear its rationale for"
},
{
"docid": "1405360",
"title": "",
"text": "PER CURIAM. Defendant Otsar Sifrei Lubavitch, Inc. (“Otsar”) appeals the District Court’s grant of a preliminary injunction to Mer-kos L’Inyonei Chinuch, Inc. (“Merkos”). The preliminary injunction enjoins Otsar from disseminating a new version of Sid-dur Tehillat Hashem, a prayerbook widely used within the Lubavitch movement of Hasidic Judaism, pending resolution of Merkos’ claim that Otsar’s new version of the prayerbook violates Merkos’ copyright in the original Siddur Tehillat Hashem by copying verbatim Rabbi Nissen Mangel’s English translation of the Hebrew prayers, which appears in Merkos’ Siddur Tehillat Hashem. We review a District Court’s grant of a preliminary injunction for abuse of discretion. Fifth Avenue Presbyterian Church v. City of New York, 293 F.3d 570, 573 (2d Cir.2002) (citing Latino Officers Ass’n v. City of New York, 196 F.3d 458, 462 (2d Cir.1999), cert. denied, 528 U.S. 1159, 120 S.Ct. 1170, 145 L.Ed.2d 1079 (2000)). “A party seeking a preliminary injunction in this Circuit must show: (1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.” Random House, Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir.2002) (citing Zervos v. Verizon New York, Inc., 252 F.3d 163, 172 (2d Cir.2001)). We have held that “generally when a copyright plaintiff makes out a prima facie showing of infringement, irreparable harm may be presumed.” ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir.1996); see also Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 192 (2d Cir.1985) (“Irreparable harm may ordinarily be presumed from copyright infringement.”). This case illustrates the rationale behind this presumption: Since Otsar sells essentially the same product as Merkos to the same market, it will obviously suffer considerable loss if Otsar disseminates its prayerbook, because each sale of an Otsar prayerbook probably results in one less sale of the Merkos’ prayerbook. Merkos thus satisfies the “irreparable harm” prong of the preliminary injunction standard, and"
},
{
"docid": "6816664",
"title": "",
"text": "but the court stated that Fresen-ius could renew its request for the removal of infringing items at the preliminary injunction hearing. The court held hearings on Fresenius’s preliminary injunction motion on June 19, June 30, and August 28, 2003, Fresenius has renewed its request for the removal of allegedly infringing items, and the matter is now ripe for decision. III. Standard for Obtaining for a Preliminary Injunction In deciding whether to issue a preliminary injunction in a copyright infringement case, the court must consider both the general preliminary injunction standard and the specific preliminary injunction standard applicable to infringement cases. A. General Preliminary Injunction Standard A district court typically undertakes a “balance-of-hardship” test to determine whether a party’s motion for preliminary injunction should be granted. Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 194-95 (4th Cir.1977). Under the “balance of hardship” test, the court must consider the following four factors: “(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir.1991). The comparison of the first two factors, the likelihood of harm to each party, is the most important consideration. Id. The plaintiff must demonstrate harm that is “ ‘neither remote nor speculative, but actual and imminent.’ ” Id. (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989)). Once the court has balanced the harm to each party, it must determine the degree to which the plaintiff is required to demonstrate a likelihood of success on the merits. Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997). If the balance of the harms “tips decidedly in favor of the plaintiff, a preliminary injunction -will be granted if the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.” Direx"
},
{
"docid": "22572540",
"title": "",
"text": "appeals shall have jurisdiction of appeals from ... [ijnterlocutory orders of the district courts ... refusing ... injunctions.”). DISCUSSION On appeal, plaintiffs argue that the District Court erred in evaluating plaintiffs’ motion for a preliminary injunction under a “likelihood-of-success” standard, rather than the less rigorous “fair-ground-for-litigation” standard. Plaintiffs also argue that the District Court abused its discretion in denying the preliminary injunction because, in plaintiffs’ view, the breathalyzer program is not reasonable under the “special needs” doctrine. I. The District Court Correctly Applied the Likelihood-of-Success Standard We have recognized two separate standards for whether a district court may grant a preliminary injunction: In general, the district court may grant a preliminary injunction if the moving party establishes (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party. Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989) (citation omitted). Nevertheless, we have held that where the moving party seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous fair-ground-for-litigation standard and should not grant the injunction unless the moving party establishes, along with irreparable injury, a likelihood that he will succeed on the merits of his claim. Id. (emphasis added); accord, e.g., Alleyne v. N.Y. State Educ. Dep’t, 516 F.3d 96, 101 (2d Cir.2008). Here, plaintiffs argue that the “less rigorous fair-ground-for-litigation standard” should apply to their motion for a preliminary injunction, whereas defendants argue that the more rigorous likeli hood-of-success standard should apply. The District Court applied the likelihood-of-success standard, and we agree that that was the correct standard to apply in the circumstances presented here. First, as discussed in more detail below, the breathalyzer program qualifies as “governmental action taken in the public interest,” Plaza Health, 878 F.2d at 580, because it was designed, among other things, to discourage officers from using their"
},
{
"docid": "10501803",
"title": "",
"text": "eight to ten new applications a month. This corresponds to the figure obtained by plaintiffs by dividing the total number of 1994 public assistance cases of 555,221 by the projected number of eligibility specialists, which results in a total of 184 cases per specialist. DISCUSSION In order for a preliminary injunction to issue, plaintiffs must demonstrate irreparable harm and a likelihood of success on the merits. See Communications Workers of America, Dist. One, AFL-CIO v. NYNEX Corp., 898 F.2d 887, 891 (2d Cir.1990); Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam). It is not sufficient to obtain preliminary relief in an action such as this to establish serious questions going to the merits since, where “a preliminary injunction ‘seeks to stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme,’ the less rigorous fair-ground-for-litigation standard should not be applied.” Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir.1993) (quoting Plaza Health Labs, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989)). Irreparable Harm The showing of irreparable harm is the “single most important prerequisite for the issuance of a preliminary injunction,” Bell and Howell v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983), and the moving party must show that injury is likely before the other requirements for an injunction will be considered. Irreparable harm must be shown to be imminent, not remote or speculative, and the injury must be such that it cannot be fully remedied by monetary damages. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). Irreparable harm is injury for which a monetary award cannot compensate. Studebaker Corp. v. Gittlin, 360 F.2d 692 (2d Cir.1966). A “substantial loss of income” may be an irreparable injury if there is no way to recover the damages resulting from the lost income. New York Patho. & X-Ray Labs., Inc. v. Immigration and Naturalization Service, 523 F.2d 79, 81 (2d Cir.1975). It is generally recognized that denying welfare benefits to a qualified recipient “may deprive an eligible recipient of the very means"
},
{
"docid": "3355856",
"title": "",
"text": "product descriptions used on MyWeb’s D’Agostino site had been provided to HomeTown by D’Agostino and were used verbatim, except for capitalization, on the new website. HomeTown had previously become the provider for a former MyWeb client, and Hometown subsequently attempted to attract one or two of MyWeb’s other clients using the new D’Agostino site as an example of HomeTown’s capabilities. MyWeb filed the present complaint against HomeTown on April 15, 2003, alleging copyright infringement, willful copyright infringement, false designation of origin, tortious interference with prospective business relations, a RICO claim, unfair competition, and trespass. HomeTown counterclaimed alleging unfair competition, defamation, tortious interference with contract and false designation of origin, and also sought a declaratory judgment that MyWeb’s copyright was void. MyWeb moved for a preliminary injunction on May 7, 2003, asking the court to bar HomeTown’s use of its product descriptions. The court held evidentiary hearings on the motion before denying it on the grounds that MyWeb was unlikely to prevail at trial on its claims of copyright protection for the product descriptions. In the district court’s view, the product descriptions in issue were not sufficiently creative to be copyrighted because, although MyWeb’s information gathering process was “painstaking,” “MyWeb exercises virtually no discretion in choosing what facts to include in a product description, and the arrangement of those facts is largely dictated by the use to which the facts are put.” My WebGrocer, LLC v. Hometown Info., No. 2:03-CV-114, Memorandum and Order at 10 (D.Vt. Aug. 4, 2003). This appeal followed. DISCUSSION A party seeking a preliminary injunction must demonstrate “(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.” Merkos L’inyonei Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 312 F.3d 94, 96 (2d Cir.2002) (internal citation omitted). We review the denial of a preliminary injunction for abuse of discretion. Id. MyWeb has satisfied the irreparable harm prong of the preliminary injunction"
},
{
"docid": "16164059",
"title": "",
"text": "that each of the four factors warrants the exercise of the extraordinary power of injunction. See Direx Israel Ltd. v. Breakthrough Medical Corp., 952 F.2d 802, 812 (4th Cir.1991). First, the plaintiff must make a “clear showing of irreparable harm” that is “‘neither remote nor speculative, but actual and imminent’.” Id. (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989)). The second step is to consider the likelihood of harm to the defendant from the grant of injunctive relief and then to balance the likelihood of irreparable harm to the plaintiff from failing to grant such relief against the likelihood of harm to the defendant if it is granted. Id. The result of this balancing determines the degree to which the plaintiff must show a likelihood of success on the merits to obtain. a preliminary injunction in the third step of the process. Under this third step, the Fourth Circuit has explained that if after balancing the irreparable harm to the plaintiff against the harm to the defendant, the balance tips decidedly in favor of the plaintiff, a preliminary injunction will be granted if the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation. As the balance tips away from the plaintiff, a stronger showing on the merits is required. Id. at 812-13 (internal quotations and citations omitted). In other words, “the importance of probability of success increases as the probability of irreparable injury diminishes.” Blackwelder, 550 F.2d 189, 195 (4th Cir.1977). Fourth, the Court must consider whether the public interest favors the granting of preliminary injunctive relief. The balancing of hardships “must be analyzed conceptually before and separately from the likelihood of success on the merits.” Ciena Corp. v. Jarrard, 203 F.3d 312, 323 (4th Cir.2000). Once “a court has performed these separate analyses, it must then make the equitable determination whether to grant injunctive relief.” Id. A. Likelihood Of Irreparable Harm To Reid There must be a likelihood that immediate irreparable harm will occur. See"
},
{
"docid": "13553613",
"title": "",
"text": "In deciding whether to grant a preliminary injunction, the district court is to consider three factors. First, it must balance the likelihood of irreparable harm to the plaintiff if the injunction is refused against the likelihood of irreparable harm to the defendant if it is granted. Second, the court should consider the likelihood that the plaintiff will succeed on the merits. The more the balance of harms leans away from the plaintiff, the stronger his showing on the merits must be. Finally, the court must consider the public interest. 166 F.3d 634, 637 (4th Cir.1999) (citing Blackwelder). The plaintiff bears the burden of proving the factors favor the grant of an injunction. See Manning v. Hunt, 119 F.3d 254, 263 (4th Cir.1997). In applying the balancing test, the most important factors are the two factors regarding the balancing of harms. Id. A plaintiff must demonstrate harm that is “ ‘neither remote nor speculative, but actual and imminent.’ ” Id. (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2nd Cir.1989)). If, after balancing the harm to the plaintiffs if the injunction were not granted against the harm to the defendants if the injunction were granted, the balance ‘tips decidedly’ in favor of the plaintiff, a preliminary injunction will be granted if ‘the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus for more deliberate investigation.’ As the balance tips away from the plaintiff, a stronger showing on the merits is required. Id. (citations omitted). Finally, the Court notes that “ ‘[T]he grant of interim relief [is] an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in [the] limited circumstances which clearly demand it.’ ” Steakhouse, 166 F.3d at 637 (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir.1991)). B. West Virginia Statute Regulating Ballot Access of Independent, Minor Candidates Plaintiffs’ Complaint and Motion for Preliminary Injunction alleges West Virginia Code § 3-5-23 violates rights'guaranteed by the First and Fourteenth Amendments."
}
]
|
326587 | the federal government. Walthill, 334 F.Supp. at 838; Brown, 334 F.Supp. at 543. Neither of these cases, however, addressed the issue of jurisdiction over crimes committed prior to October 25, 1970. Because that issue has been conclusively resolved against Tyn dall by the Nebraska Supreme Court, Tyndall’s argument fails. We are also unpersuaded by Tyndall’s argument that because this case involves Indians and crimes committed on a reservation, the issues are governed by federal law. Prior to the retrocession, the federal government had no interest whatsoever in those crimes, and it is settled that the federal government may grant to the states the authority to regulate matters involving Indians, including criminal offenses. See REDACTED Because Tyndall was sentenced by a Nebraska state court that had jurisdiction to do so, and because he demonstrates no federal constitutional violations, habeas corpus cannot issue. See, e.g., Wainwright, 464 U.S. at 83, 104 S.Ct. at 381. The judgment is affirmed. . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska. . The Honorable David L. Piester, United States Magistrate for the District of Nebraska. | [
{
"docid": "22055693",
"title": "",
"text": "certain classes of offenses defined elsewhere in state law. If those offenses are not sufficiently defined, individual tribal members may defend against any prosecutions under them at the time such prosecutions are brought. See Younger v. Harris, 401 U. S. 37. The eight subject-matter areas are themselves defined with reasonable clarity in language no less precise than that commonly accepted in federal jurisdictional statutes in the same field. See United, States v. Mazurie, 419 U. S. 544. The District Court’s ruling that Chapter 36 is not void for vagueness under the Due Process Clause of the Fourteenth Amendment was therefore correct. These are the membership figures given by the District Court. The United States, in its amicus curiae brief, has indicated that more than 5,000 tribal members live permanently on the Reservation and that the number increases during the summer months. These abstract principles do not and could not adequately describe the complex jurisdictional rules that have developed over the years in cases involving jurisdictional clashes between the States and tribal Indians since Worcester v. Georgia was decided. For a full treatment of the subject, see generally M. Price, Law and the American Indian (1973); U. S. Dept. of Interior, Federal Indian Law (1958). See Price, supra n. 7, at 210. Before 1953, there had been other surrenders of authority to some States. See, e. g., 62 Stat. 1224, 25 U. S. C. § 232 (New York), 64 Stat. 845, 25 U. S. C. § 233 (New York); 54 Stat. 249 (Kansas); 60 Stat. 229 (North Dakota); and 62 Stat. 1161 (Iowa). Public Law 280, however, was the first federal statute to attempt an omnibus transfer. The Act provides in full: “AN ACT “To confer jurisdiction on the States of California, Minnesota, Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and civil causes of-action committed or arising on Indian reservations within such States, and for other purposes. “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 53 of title 18, United States Code, is hereby amended by"
}
]
| [
{
"docid": "7085681",
"title": "",
"text": "the validity and finality of retrocession of jurisdiction by the State of Nebraska to the United States Government after approximately sixteen years of nearly exclusive state control. In 1953, the Congress transferred all jurisdiction, civil *and criminal ,, over the Indian country within the State of Nebraska to the state. At that time, similar withdrawal of federal jurisdiction over the Indian country within other states was also accomplished. The action of Congress in placing jurisdiction over Indians in the hands of the states had as its purpose the elimination of the legal impediments standing in the way of the Indian becoming a first class citizen . Congress apparently assumed that subjecting the Indian to equality of the responsibilities of state law would make him equal in all respects to other citizens of the state. In 1968, the Congress authorized the United States to take back, via retrocession from Nebraska “all or any measure” of the jurisdiction transferred to the state in 1953 . On November 12, 1968, President Lyndon B. Johnson, by executive order , pursuant to statutory authority , designated the Secretary of Interior to exercise the authority granted by the retrocession statute. In 1969, the Eightieth Session of the Nebraska Legislature passed Legislative Resolution 37, which ceded all criminal jurisdiction, save for traffic offenses, over the two Indian reservations primarily in Thurston County, Nebraska, to the United States . The Secretary of Interior took jurisdiction over the Omaha Indian Reservation but did not take jurisdiction over the Winnebago Indian Reservation. This assumption of criminal jurisdiction over the Omaha Indians only was published in the Federal Register . In 1971, the Eighty-Second Legislature of Nebraska passed Legislative Resolution 16, wherein it attempted to cancel its cession of jurisdiction because the United States had not taken back all of the jurisdiction set forth in the resolution ceding jurisdiction over both tribal reservations . Two issues arise in relation to the validity of retrocession of jurisdiction to the federal government. First, Resolution 37 was not presented to the governor for his signature and therefore might be invalid under state law. Second,"
},
{
"docid": "9761883",
"title": "",
"text": "a requirement of acceptance by the states mentioned in the act. Implicit in the holding is a determination that nothing in the law of the State of Nebraska, including any so-called impediment, requires such acceptance. If the petitioner’s present argument has been presented to the state courts of Nebraska, the question has been resolved adversely. If it has not been presented, this court would be unable to consider the question because the petitioner has not exhausted available state remedies with respect to that particular argument. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In order to determine the question of the validity of § 1162(a) it is necessary to review briefly the history of the relationship of the Omaha Indian Tribe to the federal and Nebraska governments. By treaty in 1854 the Omaha Indian Tribe ceded to the United States certain lands in the Nebraska Territory. In return for the ceded land the United States was to compensate the tribe and reserve to it certain lands for its exclusive use. Article 10 of the treaty provided that the Omahas would acknowledge their dependence on the government of the United States and would not “make war on any other tribe, except in self defence, but will submit all matters of difference between them and other Indians to the government of the United States, ...” This provision within the treaty was consistent with the idea that the relationship of the Indian tribes to the federal government was one of ward-guardian, or something similar. United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938). The fact that a crime occurs on an indian reservation does not in and of itself place that offense within the exclusive jurisdiction of the United States, unless the enabling act of the state by express language excludes Indian country from state jurisdiction. If the offense was not committed by an Indian, the state could exercise criminal jurisdiction. United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881); Draper v. United States, 164 U.S. 240, 17"
},
{
"docid": "4192947",
"title": "",
"text": "of Walthill, 460 F.2d 1327 (8 Cir. 1972), aff’g 334 F.Supp. 823 (D.Neb.1971), cert. denied, 409 U.S. 1107, 93 S.Ct. 898, 34 L.Ed.2d 687 (1973); United States v. Brown, 334 F.Supp. 536 (D.Neb.1971); see also Robinson v. Wolff, 349 F.Supp. 514 (D. Neb.1972), aff’d 468 F.2d 438 (8 Cir. 1972). The petitioners thereafter sought habeas relief in the federal district court. Initially the federal district court dismissed the petitions for failure to exhaust available state remedies. The district court ruled that the Nebraska Supreme Court should have the opportunity to determine what effect a valid retrocession would have on the state-imposed convictions in view of the Nebraska Legislature's failure to include a savings clause regarding pending cases. See Goham v. Wolff, CV71-L-365 (D.Neb., Feb. 7, 1972). Thereupon the petitioners sought leave to docket original petitions for writs of habeas corpus in the Supreme Court of Nebraska. On April 10, 1972, leave was denied by that court without opinion. On reapplication to the federal district court, the Nebraska Supreme Court’s action was construed as either a waiver of the exhaustion requirement or as having accomplished exhaustion and the court proceeded to a resolution on the merits. We hold this to be error. In Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), the Supreme Court noted: “We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent ‘unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution,’ Ex parte Royall, supra, 117 U.S. 241, at 251, 6 S.Ct. 734, 29 L.Ed. 868, it is not sufficient merely that the federal habeas applicant has been through the state courts.” We hold the mere denial, without opinion, of a motion to docket a writ of habeas corpus in the Supreme Court of Nebraska is not a sufficient basis upon which to conclude that a final waiver or exhaustion of remedy has been effectuated. This was earlier recognized by the United States Supreme Court in another case originating from Nebraska. In Ex parte"
},
{
"docid": "6798611",
"title": "",
"text": "of Facts (comparing Compiled Statutes of Nebraska 1889, chapter 17, § 75b with Compiled Statutes of Nebraska 1922, chapter 13, § 804).) 83. In November 1961, the Winnebago Agency issued a “Historical Summary for Omaha Reservation,” which stated that boundaries of the Omaha Reservation had been delineated in the original survey of 1855 and were only diminished by two sales of land to the United States for the benefit of the Winnebagos. According to the “Summary,” these “two statutory cessions ... are the only changes effected in the boundaries of the Omaha Reservation since its inception. The later enactments authorizing sale of various lands included within these boundaries are not considered to have had the effect of terminating Federal jurisdiction over them.” 84. On April 16, 1969, the legislature on behalf of the State of Nebraska voted to retrocede to the United States all jurisdiction over offenses committed by or against Indians in the areas of Indian country located in Thurston County, Nebraska, except for offenses involving operation of motor vehicles on public roads or highways. 85. The United States government, through the Secretary of the Interior, accepted the retrocession of jurisdiction on October 25, 1970. See 35 Fed.Reg. 16598 (1970). The legal description of the land in the Notice of Acceptance of Retrocession of Jurisdiction delineates the Omaha Indian Reservation as originally surveyed. 86. From 2007 until sometime immediately prior to expert depositions in this case (August 7-8, 2012), the Thurston County website declared: “The two reservations [the Omaha Indian and Winnebago] are still in existence today and cover the entire Thurston County area.” 87. In 1989, the Office of the Solicitor of the United States Department of the Interior was asked by the Bureau of Indian Affairs to locate the western boundary of the Omaha Indian Reservation. The Department of Interior reviewed “each of the treaties or legislative acts effecting [sic] the reservation” boundary and stated that the land west of the railroad right-of-way “appears to have lost its Indian character long ago with the arrival of non-Indian homesteaders.” The Department of Interior concluded “the most logical demarcation"
},
{
"docid": "15163278",
"title": "",
"text": "compels local law enforcement to accept registrations from federally-mandated sex offender programs in violation of the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const, amend X. We need not address the merits of Zuniga’s Tenth Amendment argument because he does not have standing to raise this issue. United States v. Hacker, 565 F.3d 522, 525-26 (8th Cir.2009). In Hacker, the defendant also argued that SORNA violated the Tenth Amendment by encroaching on state power. Id. at 525. Although the parties in Hacker did not raise standing as an issue, we addressed it sua sponte. Id. at 525-26 & n. 3. We joined the majority of circuits and held that “a private party does not have standing to assert that the federal government is encroaching on state sovereignty in violation of the Tenth Amendment absent the involvement of a state or its instrumentalities.” Id. at 526 (citing Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir.2009); Brooklyn Legal Servs. Corp. B v. Legal Servs. Corp., 462 F.3d 219, 234-36 (2d Cir.2006); Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st Cir.2005); United States v. Parker, 362 F.3d 1279, 1284 (10th Cir.2004)). Here, just as in Hacker, Zuniga is challenging SORNA in his individual capacity, and he does not assert the “involvement of a state or its instrumentalities.” Id. at 526. Nor has Zuniga argued that his interests are aligned with any state’s interest. See id. at 527 n. 6 (leaving open the possibility of a Tenth Amendment challenge where the private party asserts that his interests are aligned with a state’s interest). Because Zuniga is a private party, he lacks standing to raise a Tenth Amendment challenge to SORNA. III. Conclusion The judgment of the district court is affirmed. . The Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska. . The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska. . Section 16911(1) of"
},
{
"docid": "9369809",
"title": "",
"text": "of peremptory strikes until approximately eleven years after the completion of trial. Hamstrung by the effects of the passage of time, the state could not reasonably be expected to remember the reasons for its challenges. We therefore conclude that it would be inappropriate to apply Batson’s burden-shifting framework in this case because Carter did not meet his ultimate burden of proving purposeful discrimination, the district court properly denied his petition for writ of habe-as corpus. The judgment is affirmed. . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska, adopting the report and recommendation of the Honorable Kathleen A. Jaudzemis, United States Magistrate Judge for the District of Nebraska. . A detailed account of the facts underlying Carter’s convictions is set forth in State v. Carter, 226 Neb. 636, 413 N.W.2d 901, 903-05 (1987). . In Carter v. Hopkins, 92 F.3d 666 (8th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1113, 137 L.Ed.2d 314 (1997), we affirmed the denial ,of habeas relief to Victor Carter, George Carter’s brother, on his claim that his counsel .had rendered ineffective assistance by failing to object to the prosecutor's allegedly discriminatory use of peremptory challenges during the brothers’ joint trial. .The Honorable David L. Piester, United States Magistrate Judge for the District of Nebraska. . In light of our holding, we deny as moot the state's motion to strike that portion of Carter’s brief that raises issues not specified in the district court's certificate of appealability. . Although the AEDPA altered the substantive standards under which federal courts review state court determinations of law and fact, these substantive changes do not apply retroactively to cases filed prior to the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, -, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); Tiedeman, 122 F.3d at 521; Henderson v. Norris, 118 F.3d 1283, 1288 n. 2 (8th Cir.1997), cert. denied, - U.S.-, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998). Because Carter’s habeas petition was filed more than two years before the AED-PA's effective date, the Act’s more deferential standards of review, now"
},
{
"docid": "7085688",
"title": "",
"text": "at issue here. The Secretary of Interior was presented with what purported to be a valid state “retrocession” of jurisdiction over the Indian country in Thurston County, Nebraska. The question arises as to whether the Secretary must look into the prima facie valid act of a state to determine its validity under state law before he may rely upon it in precipitating federal action. Obviously, such a rule would lead to endless delay and the hazard, in every federal response to state action, that such reliance might, due to the improper conduct of the state officials, be deemed a nullity at a future date. Somewhere along the line, if only for the purpose of finality, such a result cannot be found. Here, the federal government, relying upon what purported to be valid state action, has expended large sums of money and manpower on the Omaha Reservation. It is significant to note the extent to which the valid appearance of Resolution Number 37 has carried itself in the scant two years since its conception. In State v. Goham and State v. Tyndall , the Nebraska Supreme Court determined that retrocession was not accomplished due to the .fact that the Secretary of Interior had not taken back jurisdiction of both reservations in Thurston County. The effect of Resolution 16 in those two cases was held to be a withdrawal of the proposed retrocession of Resolution 37. The Nebraska Court held that Resolution 16 was effective in withdrawing retrocession without discussing the fact that Resolution 16 was not presented to the governor either. Thus, the issue apparently was overlooked by the Nebraska Supreme Court. Obviously, the requirements of Article IV, Section 15, were overlooked by the Nebraska Legislature. This Court takes judicial notice of the fact that the executive branch of the state government in its proceeding before Chief Judge Robinson failed to raise the issue of the validity of the resolution . The Court there, as here, raised the issue sua sponte. The fact that not one of the three branches of the government of Nebraska recognized the possible problem with the"
},
{
"docid": "4192946",
"title": "",
"text": "saving pending prosecutions. The petitioners contend that they were denied due process of law since the Nebraska courts, in absence of an express provision saving pending eases, were without jurisdiction as of 12:01 A.M. EST on October 25, 1970. On this basis, the United States District Court for the District of Nebraska ordered the prisoners released. The same jurisdictional issue was presented to the Nebraska Supreme Court at the time of direct appeal. However, the Nebraska Supreme Court held that the purported retrocession was invalid since the partial acceptance of jurisdiction by the Secretary of Interior was not in accordance with the terms of the offer. In so holding, the court found it unnecessary to pass on what effect a valid retrocession would have on pending state prosecutions. State v. Go-ham, supra at 312. Subsequent to that decision, this court affirmed federal dis trict court rulings that the validity of the retrocession was a question of federal law and that in fact the retrocession was valid and effective. See Omaha Tribe of Nebraska v. Village of Walthill, 460 F.2d 1327 (8 Cir. 1972), aff’g 334 F.Supp. 823 (D.Neb.1971), cert. denied, 409 U.S. 1107, 93 S.Ct. 898, 34 L.Ed.2d 687 (1973); United States v. Brown, 334 F.Supp. 536 (D.Neb.1971); see also Robinson v. Wolff, 349 F.Supp. 514 (D. Neb.1972), aff’d 468 F.2d 438 (8 Cir. 1972). The petitioners thereafter sought habeas relief in the federal district court. Initially the federal district court dismissed the petitions for failure to exhaust available state remedies. The district court ruled that the Nebraska Supreme Court should have the opportunity to determine what effect a valid retrocession would have on the state-imposed convictions in view of the Nebraska Legislature's failure to include a savings clause regarding pending cases. See Goham v. Wolff, CV71-L-365 (D.Neb., Feb. 7, 1972). Thereupon the petitioners sought leave to docket original petitions for writs of habeas corpus in the Supreme Court of Nebraska. On April 10, 1972, leave was denied by that court without opinion. On reapplication to the federal district court, the Nebraska Supreme Court’s action was construed as either a"
},
{
"docid": "7085680",
"title": "",
"text": "MEMORANDUM DENNEY, District Judge. This matter comes before the Court on the motion of defendant for an order dismissing this criminal action against her on the ground, among others, that the federal government is without jurisdiction over her for the offenses charged. This memorandum considers only the jurisdictional issue raised by defendant’s motion and reserves ruling upon the remainder of her motion until additional hearing can be had upon defendant’s assertions therein. Defendant is an American Indian, a member of the Omaha Indian Tribe, and the crimes she is charged to have committed allegedly occurred upon the Omaha Indian Reservation, located primarily in Thurston County, Nebraska. The charges against defendant arise out of a stabbing incident wherein her sister, Clover Wolfe, was critically injured. These alleged crimes constitute felonies. Initially, the Court wishes to express appreciation for the diligence of counsel in thoroughly briefing the many legal questions raised in the issue of federal jurisdiction. The question of the existence of federal jurisdiction over the Omaha Indian Reservation primarily within Thurston County, Nebraska, rests upon the validity and finality of retrocession of jurisdiction by the State of Nebraska to the United States Government after approximately sixteen years of nearly exclusive state control. In 1953, the Congress transferred all jurisdiction, civil *and criminal ,, over the Indian country within the State of Nebraska to the state. At that time, similar withdrawal of federal jurisdiction over the Indian country within other states was also accomplished. The action of Congress in placing jurisdiction over Indians in the hands of the states had as its purpose the elimination of the legal impediments standing in the way of the Indian becoming a first class citizen . Congress apparently assumed that subjecting the Indian to equality of the responsibilities of state law would make him equal in all respects to other citizens of the state. In 1968, the Congress authorized the United States to take back, via retrocession from Nebraska “all or any measure” of the jurisdiction transferred to the state in 1953 . On November 12, 1968, President Lyndon B. Johnson, by executive order ,"
},
{
"docid": "724334",
"title": "",
"text": "PER CURIAM. These appeals by the same petitioner arise from denials of writs of habeas corpus by the United States District Court in the District of Nebraska, the Honorable Warren K. Urbom presiding. 349 F.Supp. 514. In No. 72-1112 the petitioner raises a multitude of alleged errors attacking his first degree murder conviction in the state court. See State v. Robinson, 185 Neb. 64, 173 N.W.2d 443 (1970). The federal district court summarized these grounds as follows: “1. The State of Nebraska had no jurisdiction to try the petitioner for the offense charged. “2. The jury selection system of Thurston County, Nebraska, systematically excludes Indians from the jury panel, thereby depriving the petitioner of his right to be tried by a fair and impartial jury of his peers. “3. There were constitutional errors in the trial.” Petitioner did not collaterally attack his state conviction under the Nebraska Post Conviction Act, 29-3001 to 3004 R.R.S., but did petition for a writ of habeas corpus in the Lancaster County District Court challenging the state’s jurisdiction to try him. This contention was premised on the claim that the State of Nebraska was without jurisdiction to try him for an offense committed by an Indian against another Indian within the territorial confines of the Omaha Indian Reservation. The Nebraska Supreme Court rejected this jurisdictional argument. Robinson v. Sigler, 187 Neb. 144, 187 N.W.2d 756 (1971). The federal district court held that petitioner had failed to exhaust his state remedies as to his challenge on most of the constitutional errors occurring at his trial. These include his challenge that the Thurston County jury selection system excludes Indians from jury panels, that his trial counsel was ineffective and that the prosecution suppressed evidence favorable to the petitioner and used perjured testimony. Robinson argues that the district court should assume jurisdiction because it would be a futile gesture for him to return to state court since he has already filed one “post-conviction” action in the state courts. He points to language in State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971), which indicates a petitioner will"
},
{
"docid": "9889013",
"title": "",
"text": "proceedings in this case may present new issues with respect to this aggravating circumstance, and Moore is not foreclosed from raising such issues in the future. C. The other issues raised by Moore on cross-appeal are directed at perceived inadequacies in the procedures used in sentencing him. We believe that these issues are more appropriately resolved by the state court at the time that Moore is resen-tenced. D. Finally, we note that the Supreme Court has recently handed down a decision concerning the constitutionality of a state appellate court reweighing the mitigating and aggravating circumstances after an aggravating circumstance has been held to be invalid. Clemons v. Mississippi, — U.S. —, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). After our mandate issues, the district court and the Nebraska state courts may consider whether this opinion has implications for any further proceedings which may be contemplated in this case. III. In conclusion, we affirm the district court’s order granting a writ of habeas corpus to Moore based on the unconstitutional vagueness of the “exceptional depravity” provision of the statute dealing with aggravating and mitigating circumstances, Neb.Rev.Stat. § 29-2523(l)(d). . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska. . The Honorable David L. Piester, United States Magistrate for the District of Nebraska. . This statute provides: The aggravating and mitigating circumstances referred to in sections 29-2521 and 29-2522 shall be as follows: (1) Aggravating Circumstances: (a) The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity; (b) The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime; (c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant; (d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence; (e) At the time the murder was committed,"
},
{
"docid": "11863062",
"title": "",
"text": "to serve his two terms concurrently, nor that there was no time interval between conviction and commitment for the first offense and commission of the second.” State v. Pierce, supra, 283 N.W.2d at 11-12. The Nebraska court’s interpretation of its statute as being applicable to Pierce is a matter of state law. “[A] state’s enforcement of its habitual criminal statute is generally considered a matter purely of local concern, * * Durham v. Wyrick, 649 F.2d 587, 588 (8th Cir. 1981). In Durham, we rejected a habeas petitioner’s claim that the Missouri habitual criminal statute was unconstitutional as applied to him because it was predicated upon his seven pardoned felony convictions. Id. Applying an habitual criminal statute to a defendant enhances his sentence and “[sjentencing ‘is a matter of state criminal procedure, and does not involve such a denial of fundamental fairness as to fall within the purview of federal habeas corpus.’ ” Id. (quoting Johnson v. Beto, 383 F.2d 197, 198 (5th Cir. 1967), cert. denied, 393 U.S. 868, 89 S.Ct. 153, 21 L.Ed.2d 136 (1968)). Although the Nebraska court’s interpretation~of its statute may conflict with the interpretation other states have given their habitual offender statutes, the Nebraska court’s ruling does not violate any federal constitutional guarantees. We have examined Pierce’s other arguments regarding the sufficiency of the evidence, newly discovered evidence and the continuance of his habitual criminal hearing. These arguments have no merit. We affirm the district court. Affirmed. . The Honorable Warren K. Urbom, Chief Judge, United States District Court for the District of Nebraska. . Neb.Rev.Stat. § 29-2221 (Reissue 1979). . The statute, in pertinent part, provides: “Whoever has been twice convicted of crime, sentenced and committed to prison * * * for terms of not less than one year each, shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal * * Neb.Rev.Stat. § 29-2221 (Reissue 1979). HEANEY, Circuit Judge, with whom JOHN W. OLIVER, Senior District Judge, joins, concurring. In Brown v. Parratt, 560 F.2d 303, 305 (8th Cir.1977) (Heaney, J., dissenting), I stated in detail"
},
{
"docid": "7085689",
"title": "",
"text": "v. Goham and State v. Tyndall , the Nebraska Supreme Court determined that retrocession was not accomplished due to the .fact that the Secretary of Interior had not taken back jurisdiction of both reservations in Thurston County. The effect of Resolution 16 in those two cases was held to be a withdrawal of the proposed retrocession of Resolution 37. The Nebraska Court held that Resolution 16 was effective in withdrawing retrocession without discussing the fact that Resolution 16 was not presented to the governor either. Thus, the issue apparently was overlooked by the Nebraska Supreme Court. Obviously, the requirements of Article IV, Section 15, were overlooked by the Nebraska Legislature. This Court takes judicial notice of the fact that the executive branch of the state government in its proceeding before Chief Judge Robinson failed to raise the issue of the validity of the resolution . The Court there, as here, raised the issue sua sponte. The fact that not one of the three branches of the government of Nebraska recognized the possible problem with the resolution indicates the tremendous difficulty which a rule of law requiring the federal government to delve into the procedural validity of state action would place upon any state-precipitated federal response. It is also apparent that the Congress had determined, after sixteen years of state control that the Indians had, indeed, not become the “first class citizens” that the withdrawal of federal control was supposed to foster. The federal government, having plenary power over the Indians, had the power to prescribe any method or event it desired to trigger its own re-assumption of control over Indian affairs within a state. In fact, the triggering event could have been devoid of any mention of state action at all. The plenary power of the federal government over Indian affairs, the inescapable difficulty of requiring the Secretary to delve into the internal workings of the state government, and the reliance of the federal government upon what appeared to have been a valid state action, are all factors to be considered and lead the Court to the conclusion that the"
},
{
"docid": "4192951",
"title": "",
"text": "the issue of the validity of the retrocession and to consider the effect of the retrocession on the state court’s jurisdiction, if the retrocession was valid. It is conceivable that such reconsideration and consideration would serve the worthy purpose of obviating the need of a decision by a federal court on the effect of a valid retrocession. But a larger purpose also would be served: The state court system would decide initially its own jurisdiction. Even if a federal court thereafter must face the same issue, there is a proper reluctance on the part of the federal judiciary to confront the issue of the state court’s jurisdiction until the state’s supreme court has decided the matter on each ground being asserted. See United States v. McMann, 373 F.2d 759 (C.A. 2nd Cir. 1967).” Goham v. Wolff, CV71-L-365 (Memorandum Re Motion For New Trial, D.Neb. Mar. 24, 1972). We endorse and adopt this statement as still viable and relevant to the ultimate determination of these cases. We simply hold that the federal district court misconstrued the legal effect of the Nebraska Supreme Court’s denial of leave to the petitioners to docket their petition for habeas corpus as original actions in that court. This constituted neither waiver by the state nor exhaustion by the petitioners. Ex parte Hawk, supra. We deem it axiomatic that the Nebraska Supreme Court may in the interest of proper state practice and procedure initially require a party to file a petition for a writ of habeas corpus in the state trial court. Judgment reversed and remanded with directions to dismiss the petitions on the grounds that petitioners have failed to exhaust their state remedies. . Tit. 18 U.S.C. § 1162(a) provided: “Each of the States or Territories listed in the following table Shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall"
},
{
"docid": "4192953",
"title": "",
"text": "have the same force and effect within sucli Indian country as they have elsewhere within the State or Territory: State or Territory of Indian country affected Alaska . . . All Indian country within the State, except that on Annette Islands, the Metlakatla Indian community may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended. California . . . All Indian country within the State. Minnesota . . . All Indian country within the State, except the Red Lake Reservation. Nebraska . . . All Indian country within the State. Oregon . . . All Indian country within the State, except the Warm Springs Reservation. Wisconsin . . . All Indian country within the State.” . Although the state has not raised the exhaustion issue on this appeal, in the interests of comity this court will consider it sua sponte. See Blackwell v. Wolff, 454 F.2d 48, 50 (8 Cir. 1972). . Although we do not pass on the question, it may well be that the issue of whether the Nebraska Legislature intended to abandon jurisdiction as to pending eases is essentially a question of state rather than federal law. Although the validity of the final acceptance as to retrocession has been determined to be an issue of federal law, this does not necessarily relegate all collateral issues to federal questions. Cf. Omaha Tribe of Nebraska v. Village of Walthill, 334 F.Supp. 823 (D.Neb.1971). If it is determined that the issue is one of state law, then there exists even greater reason why the Nebraska state courts should initially pass on the question. If this is so, the interpretation by the state court of the state resolution could avoid the necessity of dealing with the federal constitutional issue."
},
{
"docid": "724335",
"title": "",
"text": "him. This contention was premised on the claim that the State of Nebraska was without jurisdiction to try him for an offense committed by an Indian against another Indian within the territorial confines of the Omaha Indian Reservation. The Nebraska Supreme Court rejected this jurisdictional argument. Robinson v. Sigler, 187 Neb. 144, 187 N.W.2d 756 (1971). The federal district court held that petitioner had failed to exhaust his state remedies as to his challenge on most of the constitutional errors occurring at his trial. These include his challenge that the Thurston County jury selection system excludes Indians from jury panels, that his trial counsel was ineffective and that the prosecution suppressed evidence favorable to the petitioner and used perjured testimony. Robinson argues that the district court should assume jurisdiction because it would be a futile gesture for him to return to state court since he has already filed one “post-conviction” action in the state courts. He points to language in State v. Reichel, 187 Neb. 464, 191 N.W.2d 826 (1971), which indicates a petitioner will be barred from piecemeal litigation and may only file one post-conviction action. However, it is settled law that a petitioner may not be proeedurally estopped from filing successive post-conviction suits as long as he has not waived his right to raise the ground relied upon or as long as the ground raised has not been actually litigated and decided adversely to the petitioner. Cf. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). As we declared in Harris v. Brewer, 434 F.2d 166, 168-169 (8 Cir. 1970), waiver of a constitutional right is a federal question and must meet federal standards. Fay v. Noia, supra at 439, 83 S.Ct. 822; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Nevertheless, Judge Urbom observed that petitioner would not be es-topped from refiling his claims in a state post-conviction proceeding since his"
},
{
"docid": "4192945",
"title": "",
"text": "PER CURIAM. This is an appeal from an order of the federal district court granting writs of habeas corpus to two state prisoners. Wayne Goham and Dennis Tyndall, both members of the Omaha Indian Tribe, were convicted of kidnapping and rape in a Nebraska state court. Their convictions were affirmed by the Nebraska Supreme Court. State v. Tyndall, 187 Neb. 48, 187 N.W.2d 298 (1971); State v. Goham, 187 Neb. 35, 187 N.W.2d 305 (1971), cert. denied, 404 U.S. 1004, 92 S. Ct. 561, 30 L.Ed.2d 558. The crimes were committed on the Omaha Indian Reservation and the State of Nebraska exercised jurisdiction pursuant to 18 U.S.C. § 1162(a) (1970). On October 24, 1970, while the direct appeals from the convictions were pending in the Nebraska Supreme Court, the Secretary of the Interior accepted retrocession of jurisdiction over the Omaha Indian Reservation pursuant to an offer of retrocession previously made by the Nebraska Legislature in accordance with 25 U.S.C. § 1323(a) (1970). The offer of retrocession (Nebraska Legislative Resolution 37) contained no express provision for saving pending prosecutions. The petitioners contend that they were denied due process of law since the Nebraska courts, in absence of an express provision saving pending eases, were without jurisdiction as of 12:01 A.M. EST on October 25, 1970. On this basis, the United States District Court for the District of Nebraska ordered the prisoners released. The same jurisdictional issue was presented to the Nebraska Supreme Court at the time of direct appeal. However, the Nebraska Supreme Court held that the purported retrocession was invalid since the partial acceptance of jurisdiction by the Secretary of Interior was not in accordance with the terms of the offer. In so holding, the court found it unnecessary to pass on what effect a valid retrocession would have on pending state prosecutions. State v. Go-ham, supra at 312. Subsequent to that decision, this court affirmed federal dis trict court rulings that the validity of the retrocession was a question of federal law and that in fact the retrocession was valid and effective. See Omaha Tribe of Nebraska v. Village"
},
{
"docid": "17469693",
"title": "",
"text": "amendment, we are persuaded that the analysis of this issue by the District Court is correct. The District Court found that male inmates and female inmates “are not similarly situated.” Timm v. Gunter, No. CV85-L-501, at 15-16 (D.Neb. Dec. 13, 1988) (Memorandum of Decision). Recognizing that prisoners’ privacy interests must be balanced against internal security concerns, the District Court found that (t)he inmates require different security measures, not solely because of their gender, but because of different security concerns. Security concerns may arise from a variety of sources ... all of which may differ at various institutions and may or may not have some relationship with gender____ (P)ractices that pose no threat to the security of one institution may well be unacceptable at another institution that serves a different class of offenders. Id. at 16 (emphasis added). The District Court ruled that differences in security concerns at NSP and NCW (reflecting differences in the number and age of the inmates, the kinds of crimes committed by them, the length of sentences, and the frequency of incidents involving violence, escapes, or contraband) justified the differences in the security measures taken in the two prisons. We agree. See Williams v. Lane, 851 F.2d 867, 881 (7th Cir.1988) (“(u)nequal treatment among inmates ... is justified if it bears a rational relation to legitimate penal interest [sic]”). IV. For the foregoing reasons, we reverse the portions of the order of the District Court requiring that changes in policies, scheduling, and physical structures be made at NSP. We affirm those parts of the District Court’s order deferring to the prison administration’s expertise, i.e., those parts of the order concerning staffing decisions for Unit 5 and policy differences between NSP and NCW. . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska. . With the exception of the defendant class of male employees, who do not appeal the District Court's ruling. . The Honorable David L. Piester, United States Magistrate for the District of Nebraska. The parties agreed to a trial before the magistrate under the provisions of 28 U.S.C. §"
},
{
"docid": "5486059",
"title": "",
"text": "appeal unless it is without foundation. United States v. Smitherman, 889 F.2d 189,192 (8th Cir.1989), cert. denied, — U.S.-, 110 S.Ct. 1493, 108 L.Ed.2d 629 (1990). Hill sought a 2-point reduction from his offense level for acceptance of responsibility pursuant to section 3E1.1. The court pointed out, however, that Hill did not express sorrow or state that he wished he had not committed the crime. We believe the court properly denied a downward adjustment for acceptance of responsibility. Finally, Hill argues he was entitled to a 1-point reduction for substantial assistance to authorities. Hill cooperated with officials in Ohio where he had transported the stolen merchandise. Neither Hill nor the government, however, requested a downward adjustment for assistance to authorities. The requirement of a motion by the government before departure under Guidelines § 5K1.1 is constitutional. United States v. Grant, 886 F.2d 1513 (8th Cir.1989). The government additionally asserts that because Hill received a substantial benefit from his plea agreement, i.e., no state prosecution in Nebraska or federal prosecution in Ohio, he is not entitled to a sentence reduction. We agree. See United States v. Sutherland, 890 F.2d 1042, 1043 (8th Cir.1989) (per curiam) (no reduction needed if defendant already received benefit of cooperation through plea agreement). Accordingly, Hill’s sentence is affirmed. . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska."
},
{
"docid": "9889014",
"title": "",
"text": "of the statute dealing with aggravating and mitigating circumstances, Neb.Rev.Stat. § 29-2523(l)(d). . The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska. . The Honorable David L. Piester, United States Magistrate for the District of Nebraska. . This statute provides: The aggravating and mitigating circumstances referred to in sections 29-2521 and 29-2522 shall be as follows: (1) Aggravating Circumstances: (a) The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity; (b) The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime; (c) The murder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant; (d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence; (e) At the time the murder was committed, the offender also committed another murder; (f) The offender knowingly created a great risk of death to at least several persons; (g) The victim was a law enforcement officer or a public servant having custody of the offender or another; or (h) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws. (2) Mitigating Circumstances: (a) The offender has no significant history of prior criminal activity; (b) The offender acted under unusual pressures or influences or under the domination of another person; (c) The crime was committed while the offender was under the influence of extreme mental or emotional disturbance; (d) The age of the defendant at the time of the crime; (e) The offender was an accomplice in the crime committed by another person and his participation was relatively minor; (f) The victim was a participant in the defendant’s conduct or consented to the act; or (g) At the time of the crime, the capacity of the defendant to appreciate the wrongfulness of"
}
]
|
236343 | "or informal adoption. . Neither party devotes much attention to the fact that Mr. Yould created a guitar using Defendant's First Symbol back in 1991. (See Yould Dep., at 25.) Considering that copyright inheres in authorship and not registration, see infra note 8, if Mr. Yould first registered his copyright, Plaintiff’s Symbol-guitar itself would arguably be subject to an action for copyright infringement. See 17 U.S.C. §§ 411(a), 501(b). . That Defendant had not yet registered his copyright when Plaintiff registered his Symbol-guitar is irrelevant. Under the Copyright Act, ""registration is not a condition of copyright protection.” 17 U.S.C. § 408(a). Rather, ""[cjopyright inheres in authorship and exists whether or not the work is ever registered.” REDACTED . The determination of whether an action is time-barred and the effects of such a decision involves an area of law that ""has precipitated more ambiguity and caused more theoretical and practical snarls” than any other area of law. Reinke v. Boden, 45 F.3d 166, 169 (7th Cir.1995). It remains unsettled whether statutes of limitations extinguish the claim and destroy the right itself or whether they do no more than cut off resort to the courts for enforcement of a claim. See Chase, 325 U.S. at 313, 65 S.Ct. 1137 (noting'the debate, but not settling those arguments). Likewise, it is unclear how to distinguish between those statutes of limitations whose expiration results in a “procedural” decision versus those that amount" | [
{
"docid": "21603365",
"title": "",
"text": "beginning. Its subsequent registration of that copyright merely contained a statement, erroneous after M.G.B. Homes, Inc., of how it came to acquire that ownership. But certainly, if registration does not confer copyright, neither can erroneous registration take it away. Copyright ownership and the effect of mistaken copyright registration are separate and distinct issues. Copyright inheres in authorship and exists whether or not it is ever registered. The Copyright Act makes clear that registration is a separate issue from the existence of the copyright itself: Section 408. Copyright Registration in General. (a) REGISTRATION PERMISSIVE . — At any time during the subsistence of copyright in any published or unpublished work, the owner of a copyright or of any exclusive right in the work may obtain registration of the copyright.... Such a registration is not a condition of copyright protection. (emphasis supplied); see also M. Nimmer & D. Nimmer, 3 Nimmer on Copyright § 7.16[A], (1992). Unlike the claimant in M.G.B. Homes, Ru-tenberg’s claim to ownership of the copyright is not that the plans were created as a “work-for-hire,” but rather that they were assigned by the original author to Chrysalis and subsequently to ARC and then to it. As there is no dispute that these assignments did occur, and in writing, all prior to the alleged infringement by Drew Homes, we conclude that Rutenberg did own a valid copyright at the time of the alleged infringement. The Effect of the Inaccurate Registration Copyright registration is a pre-requisite to the institution of a copyright infringement lawsuit. 17 U.S.C. § 411(a) provides that “no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made....” Furthermore, as noted above, only the copyright owner may apply for registration. See 17 U.S.C. § 408(a). Therefore, the dispositive issue in this case is whether Chrysalis was the owner of the “Verandah II” copyright at the time of the original registration in 1988 so that the registration had legal effect. If so, then Rutenberg as a valid subsequent assignee could bring this action to enforce its copyright"
}
]
| [
{
"docid": "17564024",
"title": "",
"text": "929 (2007)). The court reads the complaint in the light most favorable to Plaintiff in order to determine whether Plaintiff has stated a plausible claim for copyright infringement. See Hobbs v. John, 722 F.3d 1089, 1093-95 (7th Cir.2013). To establish copyright infringement, Plaintiff must allege that it had ownership of a valid copyright and that Defendant committed unauthorized copying of constituent elements of original work. Id. (citing Peters v. West, 692 F.3d 629, 632 (7th Cir.2012)). Plaintiff Panoramic has adequately alleged that McGraw-Hill made unauthorized use of the photographs at issue. At this stage, the parties dispute only whether Plaintiff held valid copyrights in those photographs. McGraw-Hill asserts that Panoramic failed to identify the authors or titles for 52 of the 101 disputed photographs when it sought copyright protection. As a result, McGraw-Hill urges, those registrations are improper and the photographs do not qualify for copyright protection. With respect to 49 other photographs, Panoramic has submitted a copyright application but has not yet received a registration certificate from the Copyright Office. McGraw-Hill contends that Panoramic is not entitled to enforce its copyright for those photographs in this action until the certificate has issued. The court addresses these arguments separately. I. Copyright Protection for Works Listed Without an Author or Title The court first addresses the matter of the photographs’ identification in copyright registrations. A plaintiff must register a copyright claim with the Copyright Office before bringing a civil action for infringement. 17 U.S.C. § 411(a). As McGrawHill observes, 52 of the photographs at issue here were registered for copyright protection without their individual authors or titles listed. (Reply Mem. of Law in Further Support of Def.’s Partial Mot. to Dismiss [19], hereinafter “Def.’s Mem.”, at 2, referencing registrations VA841-131, VA957-799, VA957-800, and VA1-002-221 [10-1], Ex. A to Def.’s Mot.) Section 409 of the Copyright Act requires that “the name ... of the author or authors” of a work and “the title of the work” be included in the registration. 17 U.S.C. § 409(2), (6). Plaintiff admits that the registrations do not include this identification information for each of the 52"
},
{
"docid": "11569320",
"title": "",
"text": "which distinguishes between “idea” and “expression” —his determination might even be subject to a somewhat stricter scope of review than abuse of discretion — but it would still be quite deferential. I refer, of course, to Chevron, which obliges us ordinarily to leave undisturbed a permissible or reasonable agency interpretation of a statute if Congress has not directly addressed the issue presented. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If the Register has adopted such an interpretation to govern his office’s decisions on registration, that does not mean that the judiciary would be obliged to afford deference to that position in an infringement action, which, of course, is not a direct review of agency action governed by the Administrative Procedure Act. The Copyright Act is quite explicit as to the weight a registration decision is to be given in that kind of judicial proceeding. The Register’s decision to grant a copyright merely constitutes prima facie evidence of the copyright’s validity in any infringement action brought within five years of the works first publication (and only whatever weight the court deems appropriate for actions brought after that time), see 17 U.S.C. § 410(c); judicial review of questions of law, including the question of copyright-ability, is otherwise entirely de novo. See Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 908 (2d Cir.1980). It is unclear to me whether the Register has drawn a categorical distinction between idea and expression in this case. It was suggested at oral argument that if a still of any of the computer images that appear during the game of BREAKOUT were submitted to the Copyright Office as a work of art, a copyright would issue. In that form, perhaps, the Register would not dispute the presentation’s creativity. But the Register is apparently more willing to reject video game displays as insufficiently creative and has done so, not only in the case of BREAKOUT, but also in several other instances that were brought to the court’s attention. It would seem then, that the Copyright Office is using a"
},
{
"docid": "15222304",
"title": "",
"text": "believed Gof-fa’s 48 inch doll infringed on copyrights owned by Well-Made. A few months later, in early 1999, Goffa instructed its factory to substantially change the design of its 48 inch doll and it ceased production of the allegedly infringing version. IV. Law A. Jurisdiction 1. Registration Requirement For any work created after January 1, 1978, copyright automatically inheres upon the work’s creation. See 17 U.S.C. § 102(a) (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression ... ”); Montgomery v. Noga, 168 F.3d 1282, 1288 (11th Cir.1999); 2 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 7.16[A][1] at 7-147 (2002). Registration with the United States Copyright Office is not required to obtain copyright protection. 17 U.S.C. § 408(a) (“At any time during the subsistence of [the copyright], the owner of copyright or of any exclusive right in the work may obtain registration of the copyright.... Such a registration is not a condition of copyright protection.”). Registration is a precondition for bringing an infringement action in federal court. 17 U.S.C. § 411(a) (“no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.”). It is a jurisdictional prerequisite, not a substantive element. See Geritrex Corp. v. Dermarite Indus., LLC, 910 F.Supp. 955, 966 (S.D.N.Y.1996). Actual certification by the Copyright Office is not necessary. A copyright holder may commence an action for infringement as soon as the Copyright Office has received a proper application, fee and deposit. See Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386-7 (5th Cir.1984); 2 Nimmer § 7.16[B][1][a] at 7-155. But see Tooker v. Copley, 3 U.S.P.Q.2d (BNA) 1396, 1987 WL 124315 (S.D.N.Y.1987) (plaintiff must obtain a response from Copyright Office; application alone is insufficient). 2. As Applied to Derivative Works A work not itself registered, but derived from a copyrighted registered work may be the basis of a suit. Section 10 of Title 17 of the United States Code defines a derivative work:"
},
{
"docid": "22568423",
"title": "",
"text": "awarding Montgomery attorneys’ fees on (1) the copyright claim and (2) the Lanham Act claim. We address these contentions seriatim. A. In evaluating the defendants’ contention that the district court improperly denied their motion for judgment as a matter of law on Montgomery’s copyright infringement claim, we proceed from certain basic principles of copyright law. The Copyright Act of 1976, 17 U.S.C. § 101 et seq. (1994), provides protection for computer programs. See Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 842 (11th Cir.1990); 17 U.S.C. § 102(a) (1994). The Act defines a computer program as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S.C. § 101 (1994). For original computer programs and other original works of authorship created after 1977, copyright automatically inheres in the work at the moment it is created without regard to whether it is ever registered. See Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1531 (11th Cir.1994); 17 U.S.C. § 102(a); Melville B. Nimmer & David Nimmer, 2 Nimmer on Copyright § 7.16[A][1] (1998) [hereinafter Nimmer ]. In order to bring an action for copyright infringement, however, the author must first register the copyright. See 17 U.S.C. §§ 411(a), 501(b) (1994); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 & n. 4 (11th Cir.1990) (stating that “[t]he registration requirement is a jurisdictional prerequisite to an infringement suit”). Montgomery’s claim of copyright infringement, therefore, necessarily is predicated on the defendants’ infringement of VPIC 2.9a' — the only version of VPIC that Montgomery had registered at the time he commenced this action. Once a copyright infringement action has been properly commenced, the copyright holder must prove two elements in order to prevail: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). Here, the element of copying is not in dispute. The defendants admit"
},
{
"docid": "13764992",
"title": "",
"text": "Cir.1994). A. Likelihood of Success “To prevail on a claim of copyright infringement, the plaintiff must demonstrate both (1) ownership of a valid copyright and (2) infringement of the copyright by the defendant.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 108 (2d Cir.2001); see also Hamil America, Inc. v. GFI, 193 F.3d 92, 98 (2d Cir.1999). Merkos’s selection, editing, compilation and annotation of the Rebbe’s letters (“the compilations”) constitute pro-tectable derivative works. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Yurman, 262 F.3d at 109; Lipton v. Nature Co., 71 F.3d 464, 470 (2d Cir.1995). “A derivative work is defined as one ‘based upon one or more preexisting works .... A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a derivative work.’ ” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 576 n. 4, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (internal quotation marks omitted) (quoting 17 U.S.C. § 101). Under the Copyright Protection Act of 1976, copyright protection attaches once the work is fixed in some tangible form, such as the compilations, regardless of whether the copyright is registered or the work is published. See 17 U.S.C. § 102(a). Thus, Merkos became the holder of the copyrights in the compilations as the compilations were completed. The subsequent registration of the volumes of the Rebbe’s letters was necessary to institute this action since “[t]he Copyright Act requires that ‘no action for infringement of the copyright in any ... work shall be instituted until registration of the copyright claim has been made ....’” Morris v. Business Concepts, Inc., 259 F.3d 65, 68 (2d Cir.2001) (quoting 17 U.S.C. § 411(a)). “A plaintiff with a valid copyright proves infringement by demonstrating that: (1) the defendant actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the ... plaintiffs.” Fisher-Price, 25 F.3d at 122-23; see also SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharmaceuticals, Inc., 211"
},
{
"docid": "5980948",
"title": "",
"text": "Although Prince did not register a copyright of the symbol until 1997, the plaintiff concedes that Prince obtained a valid copyright in 1992, registration not being a precondition to copyright protection, 17 U.S.C. § 408(a), though it is a precondition to a suit for copyright infringement. § 411(a); Raquel v. Education Mgmt. Corp., 196 F.3d 171, 176 (3d Cir. 1999). Actually the original copyright was not obtained by him, but he is the assign-ee, and the assignment expressly granted him the right to sue for infringements of copyright that occur before the assignment. In 1993 the plaintiff made a guitar (Figure 2) in the shape of the Prince symbol; he concedes that it is a derivative work within the meaning of 17 U.S.C. § 101 (“a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fíctionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’ ”). The plaintiff claims (truthfully, we assume for purposes of the appeal) to have shown the guitar to Prince. Shortly afterwards Prince appeared in public playing a guitar quite similar to the plaintiffs (Figure 3). The plaintiff brought this suit for copyright infringement in 1994, but it languished for years in the district court. In January 1997 Prince counterclaimed for infringement of the copyright on his symbol, arguing (because he had not yet registered his copyright — indeed it hadn’t even been assigned to him yet) that in 1992 Warner Brothers had registered a copyright of the symbol in connection with a record of Prince’s music. Prince was mistaken; the copyright was of the music, not of the symbol, although the symbol appeared on the album cover. In any event Prince had no standing to enforce someone else’s copyright — so that, if only Warner Brothers held a copyright on the Prince symbol, Prince would have no defense against Pickett’s"
},
{
"docid": "5980947",
"title": "",
"text": "POSNER, Chief Judge. The appeal by Ferdinand Pickett, plaintiff in the district court, presents us with an issue concerning copyright in derivative works, while the cross-appeal, by the defendant, presents a procedural issue. The defendant, identified only as “Prince” in the caption of the various pleadings, is a well-known popular singer whose name at birth was Prince Rogers Nelson, but who for many years performed under the name Prince (which is what we’ll call him) and since 1992 has referred to himself by an unpronounceable symbol reproduced as Figure 1 at the end of this opinion. (See generally “The Independent, Unofficial and Uncensored Magazine Exploring the Artist Formerly Known as Prince,” <http://www.uptown.se/>.) The symbol (which rather strikingly resembles the Egyptian hieroglyph ankh, see Richard H. Wilkinson,. Symbol & Magic in Egyptian Art 159, 169 (fig.128) (1994), but the parties make nothing of this, so neither shall we) is his trademark but it is also a copyrighted work of visual art that licensees of Prince have embodied in various forms, including jewelry, clothing, and musical instruments. Although Prince did not register a copyright of the symbol until 1997, the plaintiff concedes that Prince obtained a valid copyright in 1992, registration not being a precondition to copyright protection, 17 U.S.C. § 408(a), though it is a precondition to a suit for copyright infringement. § 411(a); Raquel v. Education Mgmt. Corp., 196 F.3d 171, 176 (3d Cir. 1999). Actually the original copyright was not obtained by him, but he is the assign-ee, and the assignment expressly granted him the right to sue for infringements of copyright that occur before the assignment. In 1993 the plaintiff made a guitar (Figure 2) in the shape of the Prince symbol; he concedes that it is a derivative work within the meaning of 17 U.S.C. § 101 (“a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fíctionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other"
},
{
"docid": "11569332",
"title": "",
"text": "an initial application for a copyright. And it may well be that, as a practical matter, only denials are vulnerable to legal challenge. If that is so, we should not create incentives to register, the effect of which we do not understand. . The Register typically gives no explanation when the Office registers an offering; the Act requires an explanation if the Office denies registration. See 17 U.S.C. § 410(c). . 17 U.S.C. § 102(b) provides that: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work, (emphasis added). . It is not clear what the majority means by earlier and later \"pronouncements\" of the Copyright Office. . The Register is not necessarily bound by its previous decisions — subsequently upheld by various courts in infringement actions — granting copyrights to a number of fabric designs and a room divider consisting of simple geometric shapes. See Maj.Op. at 883-84. Since the Copyright Office is only required to explain why it rejects but not why it grants an application for a copyright, see 17 U.S.C. § 410(c), none of those decisions indicates why the Register decided to copyright those works or that the Register has interpreted the Copyright Act to demand a “minimal” creativity standard for regis-trability to be applied across the board to all submissions. . See Bouve v. Twentieth Century-Fox Film Corp., 122 F.2d 51 (D.C.Cir.1941). But at that time, the registration of copyrights was considered “a ministerial duty imposed upon him by the law_\" Id. at 56. .Putative challengers to the grant of registration — such as the defendant in the currently pending infringement suit that apparently precipitated this unusual petition for review of a Copyright Office’s registration decision — may not know of the Copyright Office's action in time to bring a suit under the Administrative Procedure Act. If, on the other hand, they do typically know in time, we may find more and more"
},
{
"docid": "8378859",
"title": "",
"text": "in the directory lacked the minimal degree of creativity necessary for copyright protection. 999 F.2d at 1441-42. In terms of selection, we distinguished between “a creatively original selection of facts” and “the creative means used to discover those facts.” Id. at 1441. While the former is protected as an original work of authorship, the latter, i.e., methods used to discover facts and/or collect data, are not. Id. We also held that “an alphabetized list of business types, with individual businesses listed in alphabetical order under the applicable headings,” was not an original coordination and arrangement of facts. Id. at 1442. A bedrock of these cases is the precise identification of what, if any, elements in the compiler’s selection, coordination and arrangement of facts are original. As we discuss infra, the standard for copyright infringement of factual compilations hinges on distinguishing original elements of creative authorship from components in the public domain. Turning now to the mechanics for bringing an infringement action, it is important to note that “[f|or ... original works of authorship created after 1977, copyright automatically inheres in the work at the moment it is created without regard to whether it is ever registered.” Montgomery v. Noga, 168 F.3d 1282, 1288 (11th Cir.1999) [(citing 17 U.S.C. § 102(a); Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 29 F.3d 1529, 1531 (11th Cir. 1994); Melville B. Nimmer & David Nimmer, 2 Nimmer on Copyright § 7.16[A][1] (1998))]. While “registration is not a condition of copyright protection,” 17 U.S.C. § 408(a), it is a prerequisite for bringing an action for copyright infringement. See 17 U.S.C. § 411(a). Upon proper commencement of the copyright infringement action, the copyright holder must prove both: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist, 499 U.S. at 361, 111 S.Ct. at 1296 (citation omitted). MLS Solutions challenges the “originality” of BUC’s compilation in three ways. First, MLS Solutions contends that BUC is not the owner of a valid copyright because the brokers were the real “authors” of the selection and arrangement of the section"
},
{
"docid": "16928971",
"title": "",
"text": "upon the question whether there may be only “a single copyright in a work.” The statute, as pointed out in footnote 2, supra, states that a “ ‘[cjopyright owner,’ with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.” 17 U.S.C. § 101 (2001). And the Supreme Court, as part of its approach to the collective work problem, said that “The 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discrete ‘exclusive rights,’ 17 U.S.C. § 106 (1994 ed. and Supp. V), each of which ‘may be transferred ... and owned separately.’ § 201(d)(2).” Tasini, 121 S.Ct. at 2388-89 (footnote omitted). But even if we could resolve the thorny problem of whether a single copyright exists, we would still have to answer the question whether (assuming that both the author and the exclusive licensee are copyright owners) a registration by one can, for purposes of § 411(a), cover the rights of the other. The statute itself does not answer this question since it requires only that registration be made “in accordance with this title,” which includes other sections of the title such as §§ 408 and 409, as well as the Copyright Office’s registration practices and regulations. Morris contends that the holding in Streetwise Maps, Inc. v. Vandam, Inc., 159 F.3d 739, 747 (2d Cir.1998), that the registration of a derivative work meets the jurisdictional requirements of § 411(a) in a suit for infringement of the original work where the claimant owns the copyright in both, requires us to find that if Condé Nast was a “copyright owner” of Morris’s articles at the time it registered the issues of Allure in which they appeared, then those articles are registered for the purposes of § 411(a). See Woods v. Universal City Studios, Inc., 920 F.Supp. 62, 64 (S.D.N.Y.1996), cited in Streetwise Maps, 159 F.3d at 747. We disagree. In Streetwise Maps, the plaintiff apparently owned all of the rights to the original work at the time it registered the copyright. See 159 F.3d at 746-47."
},
{
"docid": "6771586",
"title": "",
"text": "Song because it was not registered with the United States Copyright Office, we need not address the remaining issues relating to this infringement claim discussed by the district court — whether WJR had a license to use to the Song and whether the Foundation should have been named as a party to the lawsuit. With very limited exceptions not relevant here, registration is a prerequisite to filing a copyright infringement suit. See 17 U.S.C. § 411(a) (“[N]o action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title.”). In this case, the Song is a “derivative work.” See 17 U.S.C. § 101 (“A ‘derivative work’ is a work based upon one or more preexisting works,.... A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’ ”). Plaintiffs registered a copyright on the original work, Jeanette, but did not separately register a copyright for the derivative work, J.P. ’s Theme. Whether a separate registration for a derivative work is required is question of first impression in this jurisdiction and the answer is unsettled among the Circuits. Our review of the issue persuades us that a copyright owner must formally register a derivative work with the United States Copyright Office as a prerequisite to filing a suit for infringement of that derivative work. We first look to the literal language of the copyright statutes. 17 U.S.C. § 411(a) requires that the copyright be registered before it can be asserted as a basis for infringement in federal court. See M.G.B. Homes, Inc. v. Ameron Homes Inc., 903 F.2d 1486, 1488 (11th Cir.1990). Section 103 of the copyright statute in particular distinguishes the nature of a copyright in a derivative work from the copyright in any preexisting work: The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply"
},
{
"docid": "11221612",
"title": "",
"text": "rights equivalent to any of the exclusive rights within the scope of federal copyright law ... should be litigated only as federal copyright claims.” Rosciszewski, 1 F.3d at 232; see also 28 U.S.C. § 1338 (federal courts have exclusive jurisdiction over copyright claims). Therefore, preempted copyright claims can be removed to federal court. See also Patrick v. Francis, 887 F.Supp. 481, 484-85 (W.D.N.Y.1995) (Mowing Rosciszewski). D. The Effect of 17 U.S.C. § 411(a) on Plaintiffs Preempted Copyright Claim Under the principles discussed above, this Court does have removal jurisdiction over Plaintiffs copyright claim under 28 U.S.C. § 1441. However, as Defendants point out in their concurrently filed motion to dismiss, Plaintiffs copyright claim is procedurally defective. Under 17 U.S.C. § 102(a), “[e]opyright protection subsists ... in original works of authorship fixed in any tangible medium of expression^]” Thus, even though not federally registered, Plaintiffs script, a work of authorship, is protected by the copyright laws. However, under 17 U.S.C. § 411(a), “no action for infringement of the copyright in any work shall be instituted until registration of the copyright claim has been made in accordance with [the copyright laws].” The only exceptions to this rule are for visual artists (see 17 U.S.C. § 106A(a)) and for foreigners covered by the Berne Convention. As an American script writer, Plaintiff fits in neither of these exceptions. Furthermore, Plaintiff has not alleged that he has applied to register his copyright. Indeed, in his brief in opposition to Defendants’ motion to dismiss, Plaintiff fails to address the impact of § 411(a) at all. Plaintiffs failure to plead that he has applied for a copyright registration deprives this court of subject matter jurisdiction over his copyright claim. “Before a court can have jurisdiction to entertain an infringement action, the prior registration requirement of 17 U.S.C. § 411(a) must be met[.]” Cable News Network v. Video Monitoring Services, 940 F.2d 1471, 1480 (11th Cir.1991), vacated on other grounds, 949 F.2d 378 (11th Cir. 1991); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 (11th Cir. 1990); Jefferson Airplane v. Berkeley Systems, Inc., 886 F.Supp."
},
{
"docid": "4269205",
"title": "",
"text": "Act provides copyright protection for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). Copyright protection is specifically excluded, however, from certain categories: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Id. § 102(b). Plaintiff appears to concede Defendants’ argument in this regard, stating that “Sun Media does not claim that Sun Media’s sequence is protected by copyright law.” Pl.’s Resistance Br. at 47. Accordingly, the Court agrees that Plaintiffs claimed “sequence” is ineligible for copyright protection. D. Were Plaintiffs Works Registered with the Copyright Office Prior to Bringing Suit? Under the Copyright Act, registration of a copyright, while not a prerequisite to having a protectable interest, is a jurisdictional prerequisite to the initiation of an infringement suit in federal court. Olan Mills, Inc. v. Linn Photo Co., 23 F.3d 1345, 1349 (8th Cir.1994); see 17 U.S.C. §§ 408(a) and 411. Derivative works also must be registered as a prerequisite to maintenance of a federal action. See Murray Hill Pub., Inc. v. ABC Comm’ns, Inc., 264 F.3d 622, 632 (6th Cir.2001) (adopting the rule that “a copyright owner must register its derivative works -with the United States Copyright Office as a jurisdictional prerequisite to bringing a copyright infringement suit”); Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 354 F.3d 112, 115 (2d Cir.2003) (concluding that “registration of a claim on an original work does not create subject matter jurisdiction with respect to a suit for infringement of the original’s unregistered derivative”). A derivative work is defined by the Copyright Act as: [A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fic tionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original"
},
{
"docid": "5980949",
"title": "",
"text": "modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’ ”). The plaintiff claims (truthfully, we assume for purposes of the appeal) to have shown the guitar to Prince. Shortly afterwards Prince appeared in public playing a guitar quite similar to the plaintiffs (Figure 3). The plaintiff brought this suit for copyright infringement in 1994, but it languished for years in the district court. In January 1997 Prince counterclaimed for infringement of the copyright on his symbol, arguing (because he had not yet registered his copyright — indeed it hadn’t even been assigned to him yet) that in 1992 Warner Brothers had registered a copyright of the symbol in connection with a record of Prince’s music. Prince was mistaken; the copyright was of the music, not of the symbol, although the symbol appeared on the album cover. In any event Prince had no standing to enforce someone else’s copyright — so that, if only Warner Brothers held a copyright on the Prince symbol, Prince would have no defense against Pickett’s suit for infringement (or at least would not have the defense that he successfully asserted in the district court), as well as no basis for a counterclaim. In July 1997, however, on the Monday following the third anniversary of Pickett’s suit (which fell on a Saturday), Prince filed an amended counterclaim for infringement, claiming that it was his own, not Warner Brothers’, copyright that Pickett’s guitar infringed; for between January and July Prince had obtained the copyright by assignment and had registered it. The district court (Judge Shadur) held that the amended counterclaim, which superseded the original one, did not relate back to the original counterclaim because it did not arise out of the same copyright, and so it was barred by the three-year statute of limitations for claims of copyright infringement. 17 U.S.C. § 507(b). Later the suit was transferred to Judge Pallmeyer, who on Prince’s motion for summary judgment dismissed Pickett’s claim on the ground that he had no right to make a derivative work based on the Prince symbol without Prince’s consent,"
},
{
"docid": "21782222",
"title": "",
"text": "breached one of its covenants. See Graham, 144 F.3d at 235-38. “[W]hen the contested issue is the scope of a license, rather than the existence of one, the copyright owner bears the burden of proving that the defendant’s copying was unauthorized under the license”. Id., 144 F.3d at 236 (emphasis in original); see also Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166-67 (2d Cir. 2016); Bourne v. Walt Disney Co., 68 F.3d 621, 631 (2d Cir. 1995); Tasini, 206 F.3d at 171 (quoting Bourne, 68 F.3d at 631). 2. Copyright Registration of Computer Programs It is well-established that the written code underlying computer programs is entitled to protection under the Copyright Act. Computer Assocs. Int’l, Inc., 982 F.2d at 702 (collecting cases); see also Member Servs., Inc. v. Sec. Mut. Life Ins. Co. of N.Y., No. 3:06-cv-1164, 2010 WL 3907489, at *17 n.33 (N.D.N.Y. Sept. 30, 2010) (“Computer programs are works of authorship entitled to protection under the Copyright Act.”) (citing 17 U.S.C. §§ 101, 102). In order to register a copyright—the prerequisite for filing an infringement action, see Reed Elsevier, 559 U.S. at 157, 130 S.Ct. 1237 (citing 17 U.S.C. § 411(a))—a copyright holder must submit to the Copyright Office a “deposit” of the work to be registered, an application and a filing fee. 17 U.S.C. § 408(a); see also U.S. Copyright Office, Circular 61, Copyright Registration for Computer Programs (2012), available at http://www. copyright.gov/circs/circ61.pdf (last visited December 8, 2016) (“Circular 61”) (“An application for copyright registration contains three essential elements: a completed application form, a nonrefundable filing fee, and a nonreturnable deposit—that is, a copy or copies of the work being registered and ‘deposited’ with the Copyright Office.”). “[A] key purpose of the Section 408(b) deposit requirement is to prevent confusion about which work the author is attempting to register.” Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1162 (1st Cir. 1994) abrogated on different grounds by Reed Elsevier, Inc., 559 U.S. 154, 130 S.Ct. 1237, 176 L.Ed.2d 18. The application itself has a similar objective. Id. The requirements for the deposit vary with the"
},
{
"docid": "5980960",
"title": "",
"text": "can thus imagine the notion of pervasiveness being used to distinguish a work fairly described as derivative from works only loosely connected with some ancestral work claimed to be their original. Cf. Micro Star v. Formgen Inc., supra, 154 F.3d at 1110. In that sense Prince’s symbol clearly “pervades” both guitars. If it did not, the guitars might not be derivative works, but they would not be derivative works that anyone was free to make without obtaining Prince’s permission. It is apparent from what we have said so far not only that Pickett could not copyright his guitar, but that his guitar infringes Prince’s copyright. (Pickett’s further argument, that Prince’s copyright has evaporated if, as Judge Shadur ruled, the counterclaim to enforce it is time-barred and so Prince’s symbol fell into the public domain and became fair game for makers of derivative works, is ridiculous.) The remaining question, whether the counterclaim was properly dismissed on the basis of the statute of limitations, is the subject of Prince’s cross-appeal. Oddly, there is not the slightest doubt that the amended counterclaim was filed before the statute of limitations expired, and this regardless of whether it related back to the original, Fed.R.Civ.P. 15(c)(2), as probably it did not, since it was based on a different copyright. Cf. 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1497, pp. 70-74 (1990). Although the amended counterclaim was filed on the last possible day before expiration, namely the Monday after the Saturday that was the third anniversary of the filing of Pickett’s suit, see Fed. R. Civ.P. 6(a), the adage that a miss is as good as a mile applies in reverse here: a suit is timely whether filed the day after the claim accrues or the very last day before the suit would be time-barred. So why was the counterclaim dismissed as untimely? The three-year period of limitations began running on July 5, 1994, and the judge ruled that the counterclaim was untimely because it had not been filed until July 7, 1997. Apparently no one, including the"
},
{
"docid": "5980950",
"title": "",
"text": "suit for infringement (or at least would not have the defense that he successfully asserted in the district court), as well as no basis for a counterclaim. In July 1997, however, on the Monday following the third anniversary of Pickett’s suit (which fell on a Saturday), Prince filed an amended counterclaim for infringement, claiming that it was his own, not Warner Brothers’, copyright that Pickett’s guitar infringed; for between January and July Prince had obtained the copyright by assignment and had registered it. The district court (Judge Shadur) held that the amended counterclaim, which superseded the original one, did not relate back to the original counterclaim because it did not arise out of the same copyright, and so it was barred by the three-year statute of limitations for claims of copyright infringement. 17 U.S.C. § 507(b). Later the suit was transferred to Judge Pallmeyer, who on Prince’s motion for summary judgment dismissed Pickett’s claim on the ground that he had no right to make a derivative work based on the Prince symbol without Prince’s consent, which was never sought or granted. 52 F.Supp.2d 893 (N.D.I11. 1999). Pickett claims the right to copyright a work derivative from another person’s copyright without that person’s permission and then to sue that person for infringement by the person’s own derivative work. Pickett’s guitar was a derivative work of the copyrighted Prince symbol, and so was Prince’s guitar. Since Prince had (or so we must assume) access to Pickett’s guitar, and since the two guitars, being derivatives of the same underlying work, are, naturally, very similar in appearance, Pickett has — if he is correct that one can copyright a derivative work when the original work is copyrighted by someone else who hasn’t authorized the maker of the derivative work to copyright it — a prima facie case of infringement. Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508 (7th Cir.1994); Procter & Gamble Co. v. Colgate-Palmolive Co., 199 F.3d 74, 77 (2d Cir.1999) (per curiam); Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132, 137 (2d' Cir.1998); Twin"
},
{
"docid": "4269206",
"title": "",
"text": "17 U.S.C. §§ 408(a) and 411. Derivative works also must be registered as a prerequisite to maintenance of a federal action. See Murray Hill Pub., Inc. v. ABC Comm’ns, Inc., 264 F.3d 622, 632 (6th Cir.2001) (adopting the rule that “a copyright owner must register its derivative works -with the United States Copyright Office as a jurisdictional prerequisite to bringing a copyright infringement suit”); Well-Made Toy Mfg. Corp. v. Goffa Int’l Corp., 354 F.3d 112, 115 (2d Cir.2003) (concluding that “registration of a claim on an original work does not create subject matter jurisdiction with respect to a suit for infringement of the original’s unregistered derivative”). A derivative work is defined by the Copyright Act as: [A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fic tionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work’. 17 U.S.C. § 101; see also Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 852 (8th Cir.2004) (“A derivative work may itself be copyrighted if it has the requisite originality. However, ‘the copyright is limited to the features that the derivative work adds to the original.’ ” (quoting Pickett v. Prince, 207 F.3d 402, 405 (7th Cir. 2000))); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.1976) (stating that to be considered derivative, a secondary work must be substantially similar to the original work, yet sufficiently original to justify its own copyright). Defendants point out, and Plaintiff concedes, that neither the KDSM Spring 2002 Mailer nor the KDSM Spring 2002 Presentation are registered with the Copyright Office. See Defs.’ App. at 56-91, 100-126, 192-202; Pl.’s Resistance Br. at 48 (“Sun Media does not dispute that the KDSM Spring 2002 Mailer and the KDSM Spring 2002 Presentation have not been registered with the Copyright Office.”). Both documents are “derivative works,” as defined by the Copyright"
},
{
"docid": "7547781",
"title": "",
"text": "Justice Thomas delivered the opinion of the Court. Subject to certain exceptions, the Copyright Act (Act) requires copyright holders to register their works before suing for copyright infringement. 17 U. S. C. § 411(a) (2006 ed., Supp. II). In this case, the Court of Appeals for the Second Circuit held that a copyright holder’s failure to comply with §411(a)’s registration requirement deprives a federal court of jurisdiction to adjudicate his copyright infringement claim. We disagree. Section 411(a)’s registration requirement is a precondition to filing a claim that does not restrict a federal court’s subject-matter jurisdiction. I A The Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to . . . their . . . Writings.” Art. I, §8, cl. 8. Exercising this power, Congress has crafted a comprehensive statutory scheme governing the existence and scope of “[cjopyright protection” for “original works of authorship fixed in any tangible medium of expression.” 17 U. S. C. § 102(a) (2006 ed.). This scheme gives copyright owners “the exclusive rights” (with specified statutory exceptions) to distribute, reproduce, or publicly perform their works. § 106. “Anyone who violates any of the exclusive rights of the copyright owner as provided” in the Act “is an infringer of the copyright.” § 501(a). When such infringement occurs, a copyright owner “is entitled, subject to the requirements of section Ipil, to institute an action” for copyright infringement. § 501(b) (emphasis added). This case concerns “the requirements of section 411” to which § 501(b) refers. Section 411(a) provides, inter alia and with certain exceptions, that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copy right claim’has been made in accordance with this title.” This provision is part of the Act’s remedial scheme. It establishes a condition — copyright registration — that plaintiffs ordinarily must satisfy before filing an infringement claim and invoking the Act’s remedial provisions. We address whether § 411(a) also deprives federal courts of subject-matter"
},
{
"docid": "9644980",
"title": "",
"text": "was minimal, the issue was considered in Graves’ case, [L.R. 4 Q.B. 715 (1869),] where the applicant argued that an independent copyright could not subsist in photographs of pre-existing engravings. In holding that such photographs were entitled to an independent copyright registration under the act of 1862, Blackburn, J, reasoned that: \"all photographs are copies of some object, such as a painting or a statue. And it seems to me that a photograph taken from a picture is an original photograph, insofar that to copy it is an infringement of this statute.\" [Id. at 723], KEITH LUPTON, Photographs and the Concept of Originality in Copyright Law, 10(9) Eur. Intell. Prfop. Rev. 257, 257 & n.8 (1988). . The full statutory definition states: A \"derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a \"derivative work.” 17 U.S.C. §101. . This issue does not typically arise. Ordinarily in derivative works cases the underlying work is copyrightable, and courts implicitly recognize copyrightability as a prerequisite to invocation of a derivative rights claim. See, e.g., Stewart v. Abend, 495 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (discussing a motion picture based upon a magazine story); Pickett v. Prince, 207 F.3d 402 (7th Cir.2000) (discussing a guitar based upon the copyrighted symbol associated with the rock legend Prince); Micro Star v. Formgen Inc., 154 F.3d 1107 (9th Cir.1998) (discussing video game software based upon other video game software); ERG, 122 F.3d 1211 (discussing costumes based upon cartoon characters); Russell v. Price, 448 F.Supp. 303 (C.D.Cal.1977) (discussing a movie based upon the play \"Pygmalion”). . Interpreting the term \"unlawfully” to refer to a violation of the copyright act rather than any other statute is consistent with the legislative history of the act, which speaks' of unlawful use"
}
]
|
821928 | of title. T.C.A. 55-3-114, 123, 125, 126. Thus, the key inquiry is whether the exchange was “in fact” substantially contemporaneous. The issue has frequently arisen in the context of the relationship between section 547(e)(1) and (c)(3). As previously noted, section 547(c)(3) excepts from avoidance so-called “enabling loans”, or “purchase money loans”, and prescribes a 10-day limit for perfection of security interests taken in such transactions. Some purchase-money lenders, having failed to meet the prescribed 10-day deadline, have argued that perfection of the purchase-money security interest was nonetheless substantially contemporaneous with the giving of “new value” to the debtor. See, e.g. In re Davis, 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); In re Enlow, 20 B.R. 480 (Bkrtcy.Ind.1982); In re Burnette, 14 B.R. 795 (Bkrtcy.E.D.Tenn.1981); REDACTED In re Merritt, 7 B.R. 876 (Bkrtcy.W.D.Mo.1980). As Davis notes, one line of cases holds that section 547(c)(1) is merely cumulative with section 547(c)(3), so that a transfer which occurs more than 10 days after the cash advance, thus not qualifying under section 547(c)(3), may nonetheless be deemed substantially contemporaneous under section 547(c)(1). In re Burnette, supra; In re Hall, 14 B.R. 186 (Bkrtcy.S.D.Fla.1981). Judge Kelley, the presiding bankruptcy judge in both this case and in Burnette, has concluded that section 547(c)(3) is simply one type of contemporaneous exchange, and that section 547(c)(1), although not intended to reach the transfer of security interests, may be read broadly to cover such situations as the present. In re Burnette, supra, at 802-803. The practical | [
{
"docid": "23640877",
"title": "",
"text": "within the savings proviso of § 547(c)(1)(A), (B). Section 547(c)(3), however, contains the only specific provision, as noted above, dealing with a security interest granted in connection with an enabling loan. Thus, the first exception to the Trustee’s voiding power set forth in § 547(c)(1)(A), (B) dealing with contemporaneous transactions is not applicable to situations involving security interests. If the provisions set forth in § 547(c)(1)(A), (B) were applicable to an enabling loan, the enabling loan provisions of § 547(c)(3)(A), (B) which specifically deal with security interests granted by the Debtor in exchange for new value would be obviously redundant and unnecessary. In fact, the legislative history indicates that the first exception set forth in § 547(c)(1)(A), (B) was designed to protect so-called cash transactions where a transfer involved a payment by check which is intended to be a transfer for a contemporaneous transfer for value and not a credit transaction. Even assuming, but not admitting, that the contemporaneous transaction exception is an additional exception to the Trustee’s voiding power, this Court is satisfied that while the transaction was clearly intended to be contemporaneous, in fact, it was not. This is so especially in light of the fact that the Bank could have resorted to the expedited procedure, F.S. § 319.323 (1979), and obtained a recorded lien on the title certificate within 72 hours. See, In re Kelley, 3 B.R. 651, 2 C.B.C.2d 15 (Bkrtcy.E.D.Tenn.1980). Having concluded that all operating elements of a voidable preference transfer required by § 547(b) of the Code are present, and none of the savings provisos set forth in § 547(c) would immunize this transfer from attack as a preference, the Trustee is entitled to a final judgment invalidating the Bank lien provided, however, that the Bank is entitled to prove a general unsecured claim for the amount owed to it by the Debtor. A separate final judgment will be entered in accordance with the foregoing."
}
]
| [
{
"docid": "4627297",
"title": "",
"text": "defeat trustee’s counterclaim. Plaintiff now concedes that, in the absence of proof that the date of recordation of its lien as shown by the vehicle title is in error, the ten day grace period of (c)(3) is of no assistance to it. See generally in this regard Fitzgerald v. Union Bank, 13 B.R. 942, 811.B.C.R. 73 (Bkrtcy.D.Id.1981) holding the Idaho statute is clear in placing the burden of perfection upon the secured creditor as well as the burden of perfecting within the ten day grace period and that perfection cannot be deemed to have occurred earlier on the ground that the delay is caused by parties other than the creditor. The bank, however, also contends that the transfer, deemed to have occurred at the time of perfection under § 547(e)(2)(B), is exempt from avoidance under § 547(e)(1) because it was intended as a contemporaneous exchange for new value and was in fact a substantially contemporaneous exchange. That the granting of the security interest in return for the value given was intended by the parties as a contemporaneous exchange is not disputed. Whether or not the transfer was, “in fact a substantially contemporaneous exchange”, is at issue. Plaintiff relies upon the case of In re Arnett, 13 B.R. 267, 4 C.B.C.2d 1365, 7 B.C.D. 1222 (Bkrtcy.E.D.Tenn.1981), aff’d, 17 B.R. 912 (E.D.Tenn.1982). Arnett culminates a series of cases authored by Bankruptcy Judge Kelley considering whether this exception to the operation of the preference section is of aid to secured creditors failing to timely perfect their interests. See In re Kelley, 3 B.R. 651, 2 C.B.C.2d 15, 6 B.C.D. 395 (Bkrtcy.E.D.Tenn.1981) cited by this court in Union Bank, supra, and In re Burnette, 14 B.R. 795, 8 B.C.D. 255 (Bkrtcy. E.D.Tenn.1981). Judge Kelley has ultimately concluded that, even though Congress intended it to apply to different situations, the language of (c)(1) is broad enough to cover situations where secured creditors fail to perfect their interests inside of the ten day grace period of (c)(3). A number of courts, however, have refused to construe § 547(c)(1) to apply to such situations. See, e.g., In"
},
{
"docid": "2113962",
"title": "",
"text": "to perfect within 10 days, § 547(c)(3) is inapplicable; the transfer is deemed to be made whenever perfection occurs, pursuant to § 547(e)(2), the transfer is on account of an antecedent debt, pursuant to § 547(b)(2), and the transfer is avoidable. Creditors failing to perfect within 10 days have argued, however, that even though they failed to comply with § 547(c)(3), the transfer was substantially contemporaneous to the loan advance pursuant to § 547(c)(1). Courts are divided but the better view holds that when funds are advanced at the time or after a purchase money security interest is granted, but the purchase money security interest is not perfected within 10 days after the security interest attaches, the creditor cannot successfully argue the transfer was nevertheless substantially contemporaneous under § 547(c)(1). See, e.g., Knauer v. Enlow (In Re Enlow), 20 B.R. 480, 9 BCD 200 (Bkrtcy.D.Ind.1982); Weill v. Tennessee Central Credit Union (In Re Kelley), 3 B.R. 651, 6 BCD 395, 2 CBC2d 15 (Bkrtcy.E.D.Tenn.1980); Gower v. Ford Motor Credit Co. (In Re Davis), 22 B.R. 644, 9 BCD 657, 6 CBC2d 1391 (Bkrtcy.M.D.Ga.1982); Brown v. Callaway Bank (In Re Meritt), 7 B.R. 876, 7 BCD 28 (Bkrtcy.W.D.Mo.1980); Exchange Bank of Polk County v. Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla.1981). See also B. Clark, The Law of Secured Transactions Under the Uniform Commercial Code ¶ 6.4[2][a] at S. 6-9 to 6-10 (Supp. No. 1 1983). But see Jahn v. First Tenn. Bank of Chattanooga (In Re Burnette), 14 B.R. 795, 8 BCD 255, 5 CBC2d 1215 (Bkrtcy.E.D.Tenn.1981); Ray v. Security Mut. Finance Corp. (In Re Arnett), 13 B.R. 267, 7 BCD 1222, 4 CBC2d 1365 (Bkrtcy.E.D.Tenn.1981). Second, preserving the rule of Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 L.Ed. 419 (1917) the giving of a lien to secure an antecedent debt is not a voidable preference if the lien was contemplated at the time the debt was incurred and if the lien was given substantiaily”’contemporaneous to the time the debt was incurred. Ward & Shulman, In Defense of the Bankruptcy Code’s Radical Integration of the Preference Rules Affecting Commercial"
},
{
"docid": "17273887",
"title": "",
"text": "267 (Bkrtcy.E.D. Tenn.1981), aff'd, 17 B.R. 912 (E.D.Tenn.1982), rev’d, 731 F.2d 358 (6th Cir.1984). One court explained the relationship between two subsections as follows: Though the contemporaneous exchange exception was not meant to apply to this situation, it is broad enough to apply. It should not be held inapplicable on the ground that it cannot overlap with the enabling loan exception. The enabling loan exception can be viewed as defining one kind of “contemporaneous exchange”, in the broad sense of those words. The enabling loan exception requires proof of specific facts that should be easily proved or disproved, whereas the contemporaneous exchange exception is vague as to what facts will satisfy it. In re Burnette, 14 B.R. at 803. Under this approach, a security interest automatically is protected under § 547(c)(3) if filed within ten days of the transfer, but an untimely perfection may still be protected following a factual inquiry into the reason for the delay, the intent of the parties and the contemporaneous nature of the exchange. See In re Arnett, 17 B.R. at 914. We disagree with this construction and adopt the view of the majority of bankruptcy courts and the two circuit courts to address the issue. The approach most consistent with legislative intent and the policies underlying the enactment of § 547(c) is that subsection (c)(1) is not available to protect security interests on enabling loans from avoidance. See In re Arnett, 731 F.2d 358 (6th Cir.1984); Matter of Vance, 721 F.2d 259 (9th Cir.1983); In re Murray, 27 B.R. 445 (Bkrtcy.M.D.Tenn.1983); In re Davis, 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); Valley Bank v. Vance, 22 B.R. 26 (Bkrtey.D.Idaho 1982); In re Enlow, 20 B.R. 480 (Bkrtcy.S.D.Ind.1982); Matter of Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla.1981); In re Meritt, 7 B.R. 876 (Bkrtey.W.D.Mo.1980). Although the legislative history of § 547(c)(1) is sparse, Congress apparently was concerned that transactions not commonly considered credit transactions, such as payment by check, might be construed as payments on account of an antecedent debt. Because certain essentially cash transactions were not intended to be avoidable preferences, Congress created the contemporaneous exchange exception in §"
},
{
"docid": "3557417",
"title": "",
"text": "Ill THE CONTEMPORANEOUS EXCHANGE EXCEPTION A trustee in bankruptcy is granted the power to avoid preferential transfers for antecedent debts under 11 U.S.C. § 547(b). The purpose of this provision is to discourage creditors “from racing to the courthouse to dismember the debtor during his slide into bankruptcy” and to “facilitate the prime bankruptcy policy of equality of distribution among creditors of the debtor.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess., reprinted in 1978 U.S.Code Cong. & Ad. News 5963, 6138. Subsection (c) of section 547 contains exceptions to the trustee’s power to avoid transfers. These exceptions provide safe harbors for certain transactions involving transfers falling within the definition of preference in section 547(b), but which do not conflict with the purposes of section 547(b). Valley Bank, in the present case, is seeking to exclude the transfer of a security interest in Vance’s utility trailer from the trustee’s avoiding power by means of the contemporaneous exchange exception of section 547(c)(1). The courts below followed the majority view of cases which have considered whether section 547(c)(1) can apply to purchase money security transactions. See In re Murray, 27 B.R. 445 (Bkrtcy.M.D.Tenn. 1983); In re Davis, 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); In re Enlow, 20 B.R. 480 (Bkrtcy.S.D.Ind.1982); In re Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla.1981). A number of these cases point to the legislative history of section 547(c)(1) as an indication that Congress did not intend that provision to apply to purchase money security interests. A pertinent portion of the legislative history states: The first exception is for a transfer that was intended by all parties to be a contemporaneous exchange for new value, and was in fact substantially contemporaneous. Normally, a check is a credit transaction. However, for the purposes of this paragraph, a transfer involving a check is considered to be “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is “in fact substantially contemporaneous.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess., reprinted"
},
{
"docid": "23367619",
"title": "",
"text": "substantially contemporaneous” When delay beyond the ten day grace period is satisfactorily explained ... and no risk of fraud or misrepresentation is occasioned by the delay, the statute should not prevent the courts from being allowed to determine that the transaction was substantially contemporaneous. 17 B.R. at 914. This application of the contemporaneous exchange section to enabling loan situations in effect creates a “good faith exception” to the 10-day perfection period provided by § 547(c)(3). The adherents to this view seek a factual explanation as to why perfection did not occur within 10 days. If a satisfactory excuse is offered, the specific limitation contained in § 547(c)(3) is overcome. This court respectfully disagrees with the expansive application of the contemporaneous exchange exception outlined above. The better view and the majority view is that § 547(c)(3) is the exclusive exception available to. protect enabling loans from avoidance. See Gower v. Ford Motor Credit Co. (In re Davis), 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); Valley Bank v. Vance, 22 B.R. 26 (Bkrtcy.D.Idaho 1982); Knauer v. Enlow, 20 B.R. 480 (Bkrtcy.S.D.Ind.1982); Ex change Bank v. Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla.1981); Brown v. Callaway Bank (In re Merritt), 7 B.R. 876 (Bkrtcy.W.D.Mo.1980). A number of leading commentators have concurred that the contemporaneous exchange exception is not available to excuse the untimely perfection of an enabling loan. If the perfection was delayed more than 10 days, the question is whether Code § 547(c)(1) provides protection for delay beyond the 10-day grace period. The better view is that the general terms of Code § 547(c)(1) yield to the specific protections embodied in the 10-day grace period. 2 Norton Bankr.L. & Prac. § 32-13 at 41-42 (1981). See also White & Summers, Uniform Commercial Code § 24-4 at 1006 (2d ed. 1980); 4 L. King, Collier on Bankruptcy 1547.46 at 136.4 n. 13(c) (15th ed. 1982). The expansive interpretation of the contemporaneous exchange exception argued by FMCC departs significantly from the legislative intent underlying the creation of § 547(c)(1). Although, the legislative history is sparse, the discussion of problems involving bank checking account transactions is illustrative of the underlying"
},
{
"docid": "19375413",
"title": "",
"text": "days later. In any case, section 547(e)(2) resolves any doubt by providing that the “transfer” of a security interest not perfected until after 10 days is deemed to occur at the date of perfection. Moreover, under Tennessee law, Security Mutual's lien was invalid until recorded on a certificate of title. T.C.A. 55-3-114, 123, 125, 126. Thus, the key inquiry is whether the exchange was “in fact” substantially contemporaneous. The issue has frequently arisen in the context of the relationship between section 547(c)(1) and (c)(3). As previously noted, section 547(c)(3) excepts from avoidance so-called “enabling loans”, or “purchase money loans”, and prescribes a 10-day limit for perfection of security interests taken in such transactions. Some purchase-money lenders, having failed to meet the prescribed 10-day deadline, have argued that perfection of the purchase-money security interest was nonetheless substantially contemporaneous with the giving of “new value” to the debtor. See, e.g. In re Davis, 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); In re En-low, 20 B.R. 480 (Bkrtcy.Ind.1982); In re Burnette, 14 B.R. 795 (Bkrtcy.E.D.Tenn. 1981); In re Christian, 8 B.R. 816 (Bkrtcy. M.D.Fla.1981); In re Merritt, 7 B.R. 876 (Bkrtcy.W.D.Mo.1980). As Davis notes, one line of cases holds that section 547(c)(1) is merely cumulative with section 547(c)(3), so that a transfer which occurs more than 10 days after the cash advance, thus not qualifying under section 547(c)(3), may nonetheless be deemed substantially contemporaneous under section 547(c)(1). In re Burnette, supra; In re Hall, 14 B.R. 186 (Bkrtcy.S.D. Fla.1981). Judge Kelley, the presiding bankruptcy judge in both this case and in Burnette, has concluded that section 547(c)(3) is simply one type of contemporaneous exchange, and that section 547(c)(1), although not intended to reach the transfer of security interests, may be read broadly to cover such situations as the present. In re Burnette, supra, at 802-803. The practical effect of an expansive reading in the “enabling loan” context is to give creditors “two bites at the apple.” In re Davis, supra at 647. Most courts, however, have concluded that an expansive reading of section 547(c)(1) renders section 547(c)(3) redundant and superfluous in the enabling loan context, and"
},
{
"docid": "3557418",
"title": "",
"text": "can apply to purchase money security transactions. See In re Murray, 27 B.R. 445 (Bkrtcy.M.D.Tenn. 1983); In re Davis, 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); In re Enlow, 20 B.R. 480 (Bkrtcy.S.D.Ind.1982); In re Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla.1981). A number of these cases point to the legislative history of section 547(c)(1) as an indication that Congress did not intend that provision to apply to purchase money security interests. A pertinent portion of the legislative history states: The first exception is for a transfer that was intended by all parties to be a contemporaneous exchange for new value, and was in fact substantially contemporaneous. Normally, a check is a credit transaction. However, for the purposes of this paragraph, a transfer involving a check is considered to be “intended to be contemporaneous,” and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is “in fact substantially contemporaneous.” H.R.Rep. No. 95-595, 95th Cong., 1st Sess., reprinted in 1978 U.S.Code Cong. & Ad. News 5963, 6329. This legislative history indicates that Congress was specifically concerned with transactions involving payment by check or other cash equivalent transactions when Congress enacted section 547(c)(1). There is no indication in the legislative history that Congress intended section 547(c)(1) to be a general exception covering a variety of transactions. Rather, the legislative history indicates that Congress designed section 547(c)(1) to exclude check or other cash equivalent transactions from the trustee’s avoiding powers. Thus, applying section 547(c)(1) to purchase money security interests would expand the scope of the exception far beyond the contemplation of Congress. Congress specifically provided preference protection for purchase money security interests in section 547(c)(3). That section provides that the security interest must be perfected before 10 days after such security interest attaches. This exception does not protect the Bank’s security interest in Vance’s trailer because the security interest was perfected fourteen days after the security interest attached. Even if section 547(c)(1) were to be construed as a general exception for those situations not specifically"
},
{
"docid": "4656483",
"title": "",
"text": "that is perfected before 10 days after such security interest attaches; As is readily apparent from the above, this exception cannot apply in the case at bar. The lien in Defendants was perfected more than 10 days after its creation. Avoidance cannot be excepted under this subsection. Defendants have asserted that the “transfer” of the lien falls under 11 U.S.C. § 547(c)(1). This subsection provides: (c) The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange; Defendants assert that by reason of this exception the transfer to them of the security interest on August 26, 1981 cannot be avoided by the Trustee. However, preliminary to the determination as to whether or not the facts of this proceeding fall within the defined exception of 11 U.S.C. § 547(c)(1) is the determination of whether a transfer of a security interest, as opposed to cash or something in the nature of cash, can ever be excepted from avoidance under this subsection. Courts are not in accord on this issue. One line of cases holds, as is maintained by Defendants, that § 547(c)(1) is cumulative with § 547(c)(3), so that if transfer of lien securing an indebtedness on a cash advance is made “substantially contemporaneous[ly]” with the cash advance, the transfer is not avoidable even though the transfer does not fall within the exception stated in § 547(c)(3). In re Burnette, 14 B.R. 795, 8 BCD 255 (Bkrtcy.E.D.Tenn.1981); In re Arnett, 13 B.R. 267, 7 BCD 1222, 4 C.B.C.2d 1365 (Bkrtcy.E.D.Tenn.1981), aff’d sub nom. Ray v. Security Mutual Fin. Corp., 17 B.R. 912, Bankr.L.R. ¶ 68,644 (E.D.Tenn.1982). As stated in In re Burnette, supra, In a prior decision the court pointed out that there might be some conflict between this exception [11 U.S.C. § 547(c)(1) ] and the enabling loan exception [11 U.S.C. § 547(c)(3)] .... Though the contemporaneous"
},
{
"docid": "17273886",
"title": "",
"text": "district court agreed, that although FMCC did not comply with § 547(c)(3), its security interest is protected under subsection (c)(1), which provides that the trustee may not avoid a transfer: (1) to the extent that such transfer was — (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. This subsection has come to be referred to as the “contemporaneous exchange” exception. A number of the bankruptcy courts and two circuit courts recently have strug gled to define the relationship between this section and the more specific enabling loan exception in §\" 547(c)(3). Several bankruptcy courts have held that a holder of an interest securing an enabling loan may avail himself of § 547(c)(1) if he did not perfect within the ten day period required under subsection (c)(3). See In re Martella, 22 B.R. 649 (D.Colo.1982); In re Burnette, 14 B.R. 795 (Bkrtcy.E.D.Tenn.1981); In re Arnett, 13 B.R. 267 (Bkrtcy.E.D. Tenn.1981), aff'd, 17 B.R. 912 (E.D.Tenn.1982), rev’d, 731 F.2d 358 (6th Cir.1984). One court explained the relationship between two subsections as follows: Though the contemporaneous exchange exception was not meant to apply to this situation, it is broad enough to apply. It should not be held inapplicable on the ground that it cannot overlap with the enabling loan exception. The enabling loan exception can be viewed as defining one kind of “contemporaneous exchange”, in the broad sense of those words. The enabling loan exception requires proof of specific facts that should be easily proved or disproved, whereas the contemporaneous exchange exception is vague as to what facts will satisfy it. In re Burnette, 14 B.R. at 803. Under this approach, a security interest automatically is protected under § 547(c)(3) if filed within ten days of the transfer, but an untimely perfection may still be protected following a factual inquiry into the reason for the delay, the intent of the parties and the contemporaneous nature of the exchange. See In re Arnett, 17 B.R."
},
{
"docid": "17273885",
"title": "",
"text": "that the trustee may not avoid a transfer: (3) of a security interest in property acquired by the debtor— (A) to the extent such security interest secures new value that was— (i) given at or after the signing of a security agreement that contains a description of such property as collateral; (ii) given by or on behalf of the secured party under such agreement; (iii) given to enable the debtor to acquire such property; and (iv) in fact used by the debtor to acquire such property; and (B) that is perfected before 10 days after such security interest attaches. This provision protects a security interest taken to enable the debtor to purchase the secured property if the interest is perfected within the prescribed ten day grace period. There is little doubt that the loan in this case qualifies as an enabling loan under § 547(c)(3)(A), but because the security interest was not perfected within ten days of its attachment, it is not saved from avoidance by the trustee under § 547(c)(3). Appellees contend, and the district court agreed, that although FMCC did not comply with § 547(c)(3), its security interest is protected under subsection (c)(1), which provides that the trustee may not avoid a transfer: (1) to the extent that such transfer was — (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. This subsection has come to be referred to as the “contemporaneous exchange” exception. A number of the bankruptcy courts and two circuit courts recently have strug gled to define the relationship between this section and the more specific enabling loan exception in §\" 547(c)(3). Several bankruptcy courts have held that a holder of an interest securing an enabling loan may avail himself of § 547(c)(1) if he did not perfect within the ten day period required under subsection (c)(3). See In re Martella, 22 B.R. 649 (D.Colo.1982); In re Burnette, 14 B.R. 795 (Bkrtcy.E.D.Tenn.1981); In re Arnett, 13 B.R."
},
{
"docid": "4627298",
"title": "",
"text": "a contemporaneous exchange is not disputed. Whether or not the transfer was, “in fact a substantially contemporaneous exchange”, is at issue. Plaintiff relies upon the case of In re Arnett, 13 B.R. 267, 4 C.B.C.2d 1365, 7 B.C.D. 1222 (Bkrtcy.E.D.Tenn.1981), aff’d, 17 B.R. 912 (E.D.Tenn.1982). Arnett culminates a series of cases authored by Bankruptcy Judge Kelley considering whether this exception to the operation of the preference section is of aid to secured creditors failing to timely perfect their interests. See In re Kelley, 3 B.R. 651, 2 C.B.C.2d 15, 6 B.C.D. 395 (Bkrtcy.E.D.Tenn.1981) cited by this court in Union Bank, supra, and In re Burnette, 14 B.R. 795, 8 B.C.D. 255 (Bkrtcy. E.D.Tenn.1981). Judge Kelley has ultimately concluded that, even though Congress intended it to apply to different situations, the language of (c)(1) is broad enough to cover situations where secured creditors fail to perfect their interests inside of the ten day grace period of (c)(3). A number of courts, however, have refused to construe § 547(c)(1) to apply to such situations. See, e.g., In re Kelley, supra; In re Meritt, 7 B.R. 876, 7 B.C.D. 28 (Bkrtcy.W.D.Mo.1980); In re Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla.1981); In re Independence Land Title Corp., 9 B.R. 394, 4 C.B.C.2d 118 (Bkrtcy.N.D.Ill.1981); In re Hall, 14 B.R. 186 (Bkrtcy.S.D.Fla.1981); Butz v. Pingel, 17 B.R. 236 (Bkrtcy.S.D.Ohio 1982). I conclude that because Congress expressly provided a grace period within which a secured party, such as plaintiff herein, can perfect its interest and avoid the antecedent debt element of a preferential transfer, it did not intend further protection for this type of creditor under § 547(c)(1). The Tennessee court recognizes that the exception contained in subsection (c)(1) is designed to cover other situations. The obvious example, and the one cited by commentators as well as in the Code’s legislative history, is a check delivered in contemporaneous payment for goods received but not processed for a period of time. To ignore the date of actual perfection of security interests would be to negate the operation of subsection (e) establishing when a transfer occurs for purposes of §"
},
{
"docid": "19375414",
"title": "",
"text": "816 (Bkrtcy. M.D.Fla.1981); In re Merritt, 7 B.R. 876 (Bkrtcy.W.D.Mo.1980). As Davis notes, one line of cases holds that section 547(c)(1) is merely cumulative with section 547(c)(3), so that a transfer which occurs more than 10 days after the cash advance, thus not qualifying under section 547(c)(3), may nonetheless be deemed substantially contemporaneous under section 547(c)(1). In re Burnette, supra; In re Hall, 14 B.R. 186 (Bkrtcy.S.D. Fla.1981). Judge Kelley, the presiding bankruptcy judge in both this case and in Burnette, has concluded that section 547(c)(3) is simply one type of contemporaneous exchange, and that section 547(c)(1), although not intended to reach the transfer of security interests, may be read broadly to cover such situations as the present. In re Burnette, supra, at 802-803. The practical effect of an expansive reading in the “enabling loan” context is to give creditors “two bites at the apple.” In re Davis, supra at 647. Most courts, however, have concluded that an expansive reading of section 547(c)(1) renders section 547(c)(3) redundant and superfluous in the enabling loan context, and thus, is an unwarranted and erroneous construction. In re Murray, 27 B.R. 445 (Bkrtcy.Tenn.1983); In re Davis, su pra; In re Vance, 22 B.R. 26 (Bkrtcy.D. Idaho 1982); In re Enlow, supra; In re Merritt, supra. These courts have been persuaded that Congress intended section 547(c)(3) to be the exclusive provision applicable in the enabling loan context. “Ex-pressio unius est exclusius alterius.” Although this case does not involve an “enabling loan”, we are also persuaded that expansion of section 547(c)(l)’s reference to contemporaneity beyond 10 days in the context of transfers of security interests is erroneous. The particular problems posed by the delay between creation and perfection of security interests were well recognized by Congress. One of the principal purposes of the Bankruptcy Reform Act is to discourage the creation of “secret liens” by invalidating all transfers occurring within 90 days prior to the filing of the petitions. Thus, creditors are discouraged from waiting until the debtor’s financial troubles become all-too-manifest before recording security interests. Section 547(e)(2)(A) and (B) reflect this concern by providing that"
},
{
"docid": "19375415",
"title": "",
"text": "thus, is an unwarranted and erroneous construction. In re Murray, 27 B.R. 445 (Bkrtcy.Tenn.1983); In re Davis, su pra; In re Vance, 22 B.R. 26 (Bkrtcy.D. Idaho 1982); In re Enlow, supra; In re Merritt, supra. These courts have been persuaded that Congress intended section 547(c)(3) to be the exclusive provision applicable in the enabling loan context. “Ex-pressio unius est exclusius alterius.” Although this case does not involve an “enabling loan”, we are also persuaded that expansion of section 547(c)(l)’s reference to contemporaneity beyond 10 days in the context of transfers of security interests is erroneous. The particular problems posed by the delay between creation and perfection of security interests were well recognized by Congress. One of the principal purposes of the Bankruptcy Reform Act is to discourage the creation of “secret liens” by invalidating all transfers occurring within 90 days prior to the filing of the petitions. Thus, creditors are discouraged from waiting until the debtor’s financial troubles become all-too-manifest before recording security interests. Section 547(e)(2)(A) and (B) reflect this concern by providing that a transfer of a security interest relates back to the date of the underlying transaction if perfection occurs no more than 10 days afterwards; if perfection occurs more than 10 days later, the transfer is deemed to occur at the date of perfection. The lower courts’ broad reading of section 547(c)(1) effectively negates section 547(e)(2). Assuming the interval between creation and perfection to straddle the 90-day cutoff, although a security interest is perfected more than 10 days after the underlying transaction, and is thus voidable as a preference, the transfer- might still be preserved if it is found to be part of a “substantially contemporaneous” exchange. Such hopeless conflict cannot have been intended by Congress. Further, the evidentiary problems inherent in an expansive reading of section 547(c)(1) embody a Pandora’s box of evils, even if no risk of fraud or misrepresentation was present in this case. [Sjuch a stance invites litigation over the question when in fact a transfer is “substantially contemporaneous”. There are no objective standards for determining this fact and the courts are"
},
{
"docid": "23367622",
"title": "",
"text": "deemed to be on credit by state law, would be insulated by this exception. Though strictly speaking the transaction may be a credit transaction because the seller does not receive payment until the check is cleared through the debtor’s bank, it is generally considered and intended to be a contemporaneous transaction, and assuming the check is promptly deposited and cleared, is in fact substantially contemporaneous. “An Introduction to the Trustee’s Avoiding Powers,” 53 Am.Bankr.L.J. 173, 186 (Spring 1979). Congress was apparently concerned that cash payments would be converted to credit transactions by a mere delay in receipt or deposit. Essentially cash transactions were not intended to be avoidable preferences. Congress, therefore, created two separate exceptions, distinguishing between credit transactions which were governed by § 547(c)(3) and noncredit transactions governed by § 547(c)(1). As the court stated in Enlow: The explicit reference by Congress in § 547(c)(3) to enabling loans lends further support to the conclusion that § 547(c)(1) is not applicable to the instant transaction. Through its enactment of § 547(c)(3) Congress intended to make that section — not § 547(c)(1) — applicable to an enabling loan situation. 20 B.R. at 483. The transfer of the security interest in the instant case is clearly an extension of credit and not a cash transaction, and is, therefore, not within the intended ambit of § 547(c)(1). The policies underlying the enactment of § 547(c)(3) further support the rejection of FMCC’s theory of this case. The fixing of the 10-day grace periods in §§ 547(c)(3) and (e)(2) was an effort to establish a national uniform perfection period for enabling loans in bankruptcy cases. Congress shortened the perfection period from 21 days under the Bankruptcy Act to 10 days under the new Bankruptcy Code. See In re Burnette, 14 B.R. at 797-801. Judge Kelley noted in Burnette that “the ten day grace periods in § 547(e)(2) and (c)(3) were meant to operate in the same way. The idea was that the preference statute should establish a uniform grace period.” 14 B.R. at 798-799 (emphasis added). Furthermore, [i]t is evident that Congress did not intend"
},
{
"docid": "19375412",
"title": "",
"text": "security interests in order to preserve “relation back”, and yet accepted a 30-day period as appropriate to the negotiation of checks indicates an intent to differentiate the two types of “transfers” under the Bankruptcy Reform Act. However, since neither the literal language of section 547(c)(1) nor the legislative history explicitly reveals whether expansion of the classic check transaction reflected in section 541(c)(1) was intended to include transfers of security interests more than 10 days after their creation, consideration of the statutory context is necessary. Two elements are crucial to the establishment of the contemporaneous exchange exception: 1. The parties must intend that the exchange be substantially contemporaneous; 2. the exchange must in fact be substantially contemporaneous. 11 U.S.C. § 547(c)(1); Butz v. Pingel, 17 B.R. 236 (Bkrtcy.S.D.Ohio 1982). There is no dispute here that the parties intended a contemporaneous exchange when the loan was obtained through the granting of a security interest to Security Mutual. Further, the parties do not dispute that the “transfer” here pertinent occurred when Security Mutual perfected its security interest 33 days later. In any case, section 547(e)(2) resolves any doubt by providing that the “transfer” of a security interest not perfected until after 10 days is deemed to occur at the date of perfection. Moreover, under Tennessee law, Security Mutual's lien was invalid until recorded on a certificate of title. T.C.A. 55-3-114, 123, 125, 126. Thus, the key inquiry is whether the exchange was “in fact” substantially contemporaneous. The issue has frequently arisen in the context of the relationship between section 547(c)(1) and (c)(3). As previously noted, section 547(c)(3) excepts from avoidance so-called “enabling loans”, or “purchase money loans”, and prescribes a 10-day limit for perfection of security interests taken in such transactions. Some purchase-money lenders, having failed to meet the prescribed 10-day deadline, have argued that perfection of the purchase-money security interest was nonetheless substantially contemporaneous with the giving of “new value” to the debtor. See, e.g. In re Davis, 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); In re En-low, 20 B.R. 480 (Bkrtcy.Ind.1982); In re Burnette, 14 B.R. 795 (Bkrtcy.E.D.Tenn. 1981); In re Christian, 8 B.R."
},
{
"docid": "2113961",
"title": "",
"text": "(3) of a security interest in property acquired by the debtor— (A) to the extent such security interest secures new value that was— (i) given at or after the signing of a security agreement that contains a description of such property as collateral; (ii) given by or on behalf of the secured party under such agreement; (iii) given to enable the debtor to acquire such property, and (iv) in fact used by the debtor to acquire such property; and (B) that is perfected before 10 days after such security interest attaches; There are two situations applicable to the instant case in which the use of § 547(c)(1) has been addressed. First, where a loan is made to enable a debtor to purchase goods, a purchase money security interest is granted before or at the time funds are advanced, and the goods are acquired after the debtor signs the security agreement, the creditor has 10 days after the security interest attaches to perfect the security interest and forestall avoidance under § 547(c)(3). If the creditor fails to perfect within 10 days, § 547(c)(3) is inapplicable; the transfer is deemed to be made whenever perfection occurs, pursuant to § 547(e)(2), the transfer is on account of an antecedent debt, pursuant to § 547(b)(2), and the transfer is avoidable. Creditors failing to perfect within 10 days have argued, however, that even though they failed to comply with § 547(c)(3), the transfer was substantially contemporaneous to the loan advance pursuant to § 547(c)(1). Courts are divided but the better view holds that when funds are advanced at the time or after a purchase money security interest is granted, but the purchase money security interest is not perfected within 10 days after the security interest attaches, the creditor cannot successfully argue the transfer was nevertheless substantially contemporaneous under § 547(c)(1). See, e.g., Knauer v. Enlow (In Re Enlow), 20 B.R. 480, 9 BCD 200 (Bkrtcy.D.Ind.1982); Weill v. Tennessee Central Credit Union (In Re Kelley), 3 B.R. 651, 6 BCD 395, 2 CBC2d 15 (Bkrtcy.E.D.Tenn.1980); Gower v. Ford Motor Credit Co. (In Re Davis), 22 B.R."
},
{
"docid": "4656484",
"title": "",
"text": "of whether a transfer of a security interest, as opposed to cash or something in the nature of cash, can ever be excepted from avoidance under this subsection. Courts are not in accord on this issue. One line of cases holds, as is maintained by Defendants, that § 547(c)(1) is cumulative with § 547(c)(3), so that if transfer of lien securing an indebtedness on a cash advance is made “substantially contemporaneous[ly]” with the cash advance, the transfer is not avoidable even though the transfer does not fall within the exception stated in § 547(c)(3). In re Burnette, 14 B.R. 795, 8 BCD 255 (Bkrtcy.E.D.Tenn.1981); In re Arnett, 13 B.R. 267, 7 BCD 1222, 4 C.B.C.2d 1365 (Bkrtcy.E.D.Tenn.1981), aff’d sub nom. Ray v. Security Mutual Fin. Corp., 17 B.R. 912, Bankr.L.R. ¶ 68,644 (E.D.Tenn.1982). As stated in In re Burnette, supra, In a prior decision the court pointed out that there might be some conflict between this exception [11 U.S.C. § 547(c)(1) ] and the enabling loan exception [11 U.S.C. § 547(c)(3)] .... Though the contemporaneous exchange exception was not meant to apply to this situation, it is broad enough to apply. It should not be held inapplicable on the ground that it cannot overlap with the enabling loan exception. The enabling loan exception can be viewed as defining one kind of “contemporaneous exchange,” in the broad sense of those words. The enabling loan exception requires proof of specific facts that should be easily proved or disproved, whereas the contemporaneous exchange exception is vague as to what facts will satisfy it. The enabling loan exception is not rendered useless by holding that the contemporaneous exchange exception can apply to the same facts. Id., 14 B.R. at 803. The effect of this approach is to give the preferred creditor two bites at the apple. If he has promptly perfected his security interest within the ten days specified by 11 U.S.C. § 547(c)(3), he is automatically protected. However, if he has not promptly perfected, he may still maintain that, the delay notwithstanding, creation of the security interest was meant to be and was"
},
{
"docid": "23367618",
"title": "",
"text": "exception, the creditor must perfect its security interest within 10 days after attachment. No such time limit is specified for the contemporaneous exchange exception. To support the application of § 547(c)(1) to enabling loan cases, FMCC cites several decisions originating with Judge Kelley of the Bankruptcy Court for the Eastern District of Tennessee. See Jahn v. First Tennessee Bank (In re Burnette), 14 B.R. 795 (Bkrtcy.E.D.Tenn.1981); Ray v. Security Mutual Finance Corp. (In re Arnett), 13 B.R. 267 (Bkrtcy.E.D.Tenn.1981) aff’d, 17 B.R. 912 (E.D.Tenn.1982); See also General Motors Acceptance Corp. v. Martella, 22 B.R. 649 (Bkrtcy.D.Colo.1982) (adopting Arnett in applying § 547(c)(1) to except from avoidance an enabling loan perfected after 10 days). Judge Wilson explained the alleged interrelationship between § 547(c)(1) and § 547(c)(3) in affirming the bankruptcy court’s holding in In re Arnett: ... [A]ny security interest perfected in the ten day grace period will be treated as being “in fact substantially contemporaneous,” while it will be a question of fact as to whether any transaction extending beyond these limits is “in fact substantially contemporaneous” When delay beyond the ten day grace period is satisfactorily explained ... and no risk of fraud or misrepresentation is occasioned by the delay, the statute should not prevent the courts from being allowed to determine that the transaction was substantially contemporaneous. 17 B.R. at 914. This application of the contemporaneous exchange section to enabling loan situations in effect creates a “good faith exception” to the 10-day perfection period provided by § 547(c)(3). The adherents to this view seek a factual explanation as to why perfection did not occur within 10 days. If a satisfactory excuse is offered, the specific limitation contained in § 547(c)(3) is overcome. This court respectfully disagrees with the expansive application of the contemporaneous exchange exception outlined above. The better view and the majority view is that § 547(c)(3) is the exclusive exception available to. protect enabling loans from avoidance. See Gower v. Ford Motor Credit Co. (In re Davis), 22 B.R. 644 (Bkrtcy.M.D.Ga.1982); Valley Bank v. Vance, 22 B.R. 26 (Bkrtcy.D.Idaho 1982); Knauer v. Enlow, 20 B.R. 480"
},
{
"docid": "4656485",
"title": "",
"text": "exchange exception was not meant to apply to this situation, it is broad enough to apply. It should not be held inapplicable on the ground that it cannot overlap with the enabling loan exception. The enabling loan exception can be viewed as defining one kind of “contemporaneous exchange,” in the broad sense of those words. The enabling loan exception requires proof of specific facts that should be easily proved or disproved, whereas the contemporaneous exchange exception is vague as to what facts will satisfy it. The enabling loan exception is not rendered useless by holding that the contemporaneous exchange exception can apply to the same facts. Id., 14 B.R. at 803. The effect of this approach is to give the preferred creditor two bites at the apple. If he has promptly perfected his security interest within the ten days specified by 11 U.S.C. § 547(c)(3), he is automatically protected. However, if he has not promptly perfected, he may still maintain that, the delay notwithstanding, creation of the security interest was meant to be and was “substantially contemporaneous” with parting of value to debtor and he should be protected by 11 U.S.C. § 547(c)(1). Other Courts have refused to give the preferred creditor the extra bite at the apple. See In re Enlow, 20 B.R. 480, 9 BCD 200, Bankr.L.R. ¶ 68,719 (Bkrtcy.Ind.1982); In re Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla. 1981); In re Meritt, 7 B.R. 876, 7 BCD 28, Bankr.L.R. ¶ 67,883 (Bkrtcy.W.D.Mo.1980). As stated in In re Enlow, supra: The explicit reference by Congress in Section 547(c)(3) to enabling loans lends further support to the conclusion that Section 547(c)(1) is not applicable to the instant transaction. Through its enactment of section 547(c)(3) Congress intended to make that section — not Section 547(c)(1) — applicable to an enabling loan situation. To conclude otherwise would render the provisions of Section 547(c) “redundant and unnecessary.” Id. 20 B.R. at 483, 9 B.C.D. at 201-202. The effect of this approach is to require the preferred creditor to fit his situation into either of the two exceptions depending on whether the transfer assailed is"
},
{
"docid": "23367617",
"title": "",
"text": "enabling loan. The security interest was taken to secure new value at the time the agreement was signed, was taken to enable the debtor to obtain the automobile, and actually resulted in acquisition of the automobile. However, because FMCC did not perfect its security interest within the prescribed 10 days, § 547(c)(3) does not protect the transfer from avoidance. FMCC contends, however, that its security interest is protected by 11 U.S.C.A. § 547(c)(1) which provides: (c) The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was' made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange. This section has come to be referred to as the “contemporaneous exchange” exception. The courts have been struggling with the relationship between the contemporaneous exchange exception to the preference power and the enabling loan exception discussed above. Specifically, to come within the enabling loan exception, the creditor must perfect its security interest within 10 days after attachment. No such time limit is specified for the contemporaneous exchange exception. To support the application of § 547(c)(1) to enabling loan cases, FMCC cites several decisions originating with Judge Kelley of the Bankruptcy Court for the Eastern District of Tennessee. See Jahn v. First Tennessee Bank (In re Burnette), 14 B.R. 795 (Bkrtcy.E.D.Tenn.1981); Ray v. Security Mutual Finance Corp. (In re Arnett), 13 B.R. 267 (Bkrtcy.E.D.Tenn.1981) aff’d, 17 B.R. 912 (E.D.Tenn.1982); See also General Motors Acceptance Corp. v. Martella, 22 B.R. 649 (Bkrtcy.D.Colo.1982) (adopting Arnett in applying § 547(c)(1) to except from avoidance an enabling loan perfected after 10 days). Judge Wilson explained the alleged interrelationship between § 547(c)(1) and § 547(c)(3) in affirming the bankruptcy court’s holding in In re Arnett: ... [A]ny security interest perfected in the ten day grace period will be treated as being “in fact substantially contemporaneous,” while it will be a question of fact as to whether any transaction extending beyond these limits is “in fact"
}
]
|
663870 | market dominance, was merely providing an explanation for its decision not to suspend and investigate. Far from being a final decision after investigation, the Commission’s decision represents the very sort of “preliminary assessment” of the merits “commonly made in suspension orders,” see United States v. SCRAP, 412 U.S. 669, 692 n. 16, 93 S.Ct. 2405, 2418, 37 L.Ed.2d 254, and, thus, falls squarely within the holding in Seaboard. Second, Georgia Power, citing the Commission’s statement that it had “no jurisdiction” to declare the rates unreasonably high since it found that no market dominance existed, argues that the Commission’s order falls within the exception to nonreviewability of decisions not to suspend or investigate recognized in Seaboard. The Seaboard Court, citing REDACTED and Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960), recognized that Congress did not intend to preclude judicial review of a legal issue concerning the Commission’s authority to exercise or refuse to exercise a statutory discretion. See 99 S.Ct. at 2396 n. 11. See also Lone Star Steel Co. v. United States, 600 F.2d at 493. Georgia Power argues that the Commission’s finding that it had no jurisdiction to consider the reasonableness of the rates was based on an erroneous application of its own market dominance regulations, and that if the market dominance regulations were properly applied, the Commission would have jurisdiction to consider the reasonableness of the rates. The problem | [
{
"docid": "22364091",
"title": "",
"text": "location of the line between the just and the unjust, the reasonable and the unreasonable. Moreover, the Commission is required by § 15 (7) to set out its reasons in writing for suspending a tariff. The usual and sufficient reason will be that the Commission has found a proposed tariff to fall on the unjust or unreasonable side of the line it has drawn, and it is a reason of precisely this sort that the Commission has given here. See 355 I. C. C., at 81-83. Petitioners do not apparently disagree that the Commission can suspend a tariff because it falls on the wrong side of the line of reasonableness, but they would prevent the Commission in suspending a tariff from stating, as it did here, where the tentative dividing line lies. Such a statement, they say, is ratemaking. But this is untenable: No principle of law requires the Commission to engage in a pointless charade in which carriers desiring to exercise their § 6 (3) rights are required to submit and resubmit tariffs until one finally goes below an undisclosed maximum point of reasonableness and is allowed to take effect. The administrative process, after all, is not modeled on “The Price is Right.” What the Commission did here, therefore, far from being condemnable, is an intelligent and practical exercise of its suspension power which is thoroughly in accord with Congress’ goal, recognized in Arrow, 372 U. S., at 664-666; see United States v. SCRAP, 412 U. S. 669, 697 (1973), to strike a fair balance between the needs of the public and the needs of regulated carriers. Indeed, the Commission might well have been derelict in its duty had it insisted on charade once it had determined that there was a way TAPS could operate without harm to the public. Cf. Arrow, supra; SCRAP, supra; 43 U. S. C. § 1651 (a) (1970 ed., Supp. V) (congressional policy favors “[t]he early development and delivery of oil . . . from Alaska’s North Slope to domestic markets”). V Finally, petitioners contend that the Commission has no power to subject them"
}
]
| [
{
"docid": "342971",
"title": "",
"text": "not to assure just and reasonable rates. This duty is all the more acute, Arctic contends, when so much water has flowed over the litigation dam. Although this argument is hardly without force, we are nonetheless unable to discern in either the statute’s language or its structure an absolute command in the form Arctic would have it. The Commission did, after all, consistently treat this proceeding as a hearing and investigation under sections 15(7) and 15(1) of the Act. Those provisions confer broad discretion upon the Commission to structure its proceedings as it sees fit. For example, the Commission enjoys unreviewable discretion to determine whether to ini tiate section 15 investigations at all, see Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979), and whether to suspend challenged rates, see Aberdeen & Rockfish R.R. Co. v. SCRAP, 422 U.S. 289, 311, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975); Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). Moreover, decisions under the ICA not to pursue an investigation once begun lie squarely within the agency’s discretion, even if the initial investigation reveals that some rates, though not all, are illegal. See generally United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181 (1933) (refusing to invalidate agency decision not to prescribe rates, even though some individual rates were unjust and unreasonable); see also United States v. SCRAP, 412 U.S. 669, 692 n. 16, 93 S.Ct. 2405, 2418 n. 16, 37 L.Ed.2d 254 (1973) (even after preliminary investigation of rate schedules and finding that they contain individually unreasonable rates, refusal to suspend rates as generally unlawful not a reviewable decision on the merits). What is more, the Supreme Court has suggested, albeit in dicta, that a party dissatisfied with a decision to terminate an ongoing investigation is without recourse to the courts. See National R.R. Passenger Corp. v. National Assoc. of R.R. Passengers, 414 U.S. 453, 462 n. 9, 94 S.Ct. 690, 695 n. 9, 38 L.Ed.2d 646 (1974). This congressionally granted,"
},
{
"docid": "13339812",
"title": "",
"text": ". As recognized by this court in Pennsylvania Gas & Water Co. v. FPC, 150 U.S.App.D.C. 151, 4G3 F.2d 1242 (1972) (Natural Gas Act § 4(e), 15 U.S.C. § 717c (e) (1970)). We may distinguish the instant case from United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), and Arrow Transp. Co. v. Southern Ry. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1903), which interpreted the suspension provision of the Interstate Commerce Act, § 15(7), 49 U.S.C. § 15(7) (1970). In Arrow, the Supreme Court held that the District Court had infringed upon the exclusive suspension power of the Interstate Commerce Commission when it enjoined implementation of a filed rate schedule after the statutory seven-month suspension period had expired. The Court endorsed the following statement by the Fifth Circuit, which had reversed the District Court’s decree: Congress, in its wisdom, has fixed seven months as the maximum period of suspension. It seems clear to us that if the courts extend that period, they are in effect amending the statute and that is a matter beyond their power. 372 U.S. at 662, 83 S.Ct. at 986, quoting 308 F.2d 181, 186 (1962). In SCRAP the District Court enjoined collection of railroad freight surcharges despite the fact that the ICC had denied requests to suspend the surcharges for the statutory seven-month period under section 15(7). The Supreme Court reversed, noting that the District Court’s “injunction constitutes a direct interference with the Commission’s discretionary decision whether or not to suspend the rates.” 412 U.S. at 692, 93 S.Ct. at 2418. In the case at bar, our denial of retroactive increases to I & M for the five-month period from 14 July 1972 through 13 December 1972 does not extend the statutory five-month suspension period as was the case in Arrow. Moreover, our order does not interfere with the Commission’s “discretionary decision whether or not to suspend”; rather, it gives effect to the Commission’s decision that suspension was approj>riate. . Cf. United States v. Morgan, 307 U.S. 183, 198, 59 S.Ct. 795, 83 L.Ed. 1211 (1939);"
},
{
"docid": "8146612",
"title": "",
"text": "99 S.Ct. at 2395. And the decision in Southern Railway — to allow a new tariff to go into effect without suspension or investigation — shifts the procedural onus onto the aggrieved shippers to file an independent administrative action in which they will bear the burden of proof, and also restricts the relief they may ultimately obtain to actual damages rather than to the full overcharge that would have been available had the Commission proceeded to an investigation. Id. at 454-455, 99 S.Ct. at 2394. Thus these two decisions show that a nonfinal administrative order may be unreviewable — even though it might result in serious irreparable injury to a party — if immediate judicial review would undermine the authority of the agency acting within the scope of its discretion. From Arrow Transportation and Southern Railway it follows a fortiori that the order presented for review in this case is nonreviewable. The decision whether to reject or to accept a rate filing is based on precisely the same information, and primarily the same considerations, that govern decisions to suspend or not to suspend, to investigate or not to investigate. The decision to accept a rate filing is a necessary adjunct to the unreviewable decision to suspend and investigate. It would make little sense to declare orders concerning suspension and investigation unreviewable if the courts may review the related order to accept a rate filing. A holding that we could assume jurisdiction in this case would, in effect, avoid the strictures of Arrow Transportation and Southern Railway on the nicest of distinctions. Moreover, the considerations that led the Supreme Court to declare orders concerning suspension and investigation of rates nonreviewable also apply to this case. The order presented for review in this case is not a decision on the merits, cf. Southern Railway Co. v. Seaboard Allied Milling Corp., supra, 442 U.S. at 451, 99 S.Ct. at 2392. Its consequences to petitioner are relatively minor, cf. id. at 454-455, 99 S.Ct. at 2394. For us to judge whether FERC erred in accepting intervenor’s rate filing would “undermine the Commission’s primary jurisdiction"
},
{
"docid": "22362693",
"title": "",
"text": "bureaus.” S. Rep. No. 94-499, p. 45 (1975). See also id., at 15 (primary purpose of the 4r-R Act amendments was to end “excessive regulatory delay”); n. 3, supra. See also Trans Alaska Pipeline Rate Cases, 436 U. S. 631, 638-639, n. 17. In those cases, the Court reaffirmed the conclusion in Arrow and the SCRAP cases “that courts may not independently appraise the reasonableness of rates” — i. e., the merits — in reviewing suspension decisions. It did, however, “conclude that Congress did not mean to cut off Judicial review for [the] limited purpos[e]” of deciding whether the Commission had jurisdiction to suspend the rates in question, i. e., whether they were “new rates” within the meaning of § 1'5 (8) (a). See also Schilling v. Rogers, 363 U. S. 666, 676-677 (“different considerations” apply to the reviewability of an agency “refus[al] or fail[ure] to exercise a statutory discretion” than to the reviewability of its decision once it does exercise that discretion). Here, it is conceded by all that the Commission has authority with respect to rates such as those at issue either to suspend (or investigate) or not to suspend (or investigate) them and that it has exercised its authority. The question raised is whether it did so correctly under the particular circumstances involved — a question that cannot be answered by a reviewing court without “independently apprais[ing] the [lawfulness] of [the] rat[e].” Similarly, the situation in Arrow, in which the courts first held a “no suspension” decision unreviewable, was far more conducive to a finding of reviewability than the situation presented by these cases. For in Arrow, the parties seeking judicial intervention were competitors of the railroads alleging predatory pricing, rather than shippers alleging excessive pricing. As such, it was uncertain — and the Court expressly refused to decide— whether those complainants had access to the posteffective judicial remedies that are available to shippers such as respondents here. See 372 U. S., at 669. In short, it was possible in Arrow, but not here, that non-reviewability would leave the aggrieved party without any judicial remedy at all."
},
{
"docid": "8137369",
"title": "",
"text": "a designated percentage. See Pub.L. No. 96-448, § 202, 94 Stat. 1895, 1900 (codified at 49 U.S.C. § 10709(d) (Supp. V 1981)). Revenues equal to or greater than that percentage do not result in a presumption of market dominance but are to be examined individually. Id. Also in the Staggers Act, Congress created zones of rail carrier rate flexibility, in which even market dominant carriers may increase rates without ICC approval if the carriers’ revenues are found to be inadequate. Pub.L. No. 96-448, § 203(a), 94 Stat. 1895, 1901-04 (codified at 49 U.S.C. § 10707a (Supp. V 1981)). A rate subject to ICC jurisdiction may be challenged in either of two ways. Before the new rate goes into effect, the Commission may begin a proceeding, on its own initiative or on complaint of an interested party, to investigate the rate. 49 U.S.C. § 10707(a) (Supp. V 1981). After a rate goes into effect, the ICC may begin an investigation, on its own initiative or on complaint, into the reasonableness of the existing rate. 49 U.S.C. § 11701 (Supp. V 1981). An ICC decision to approve or disapprove rates, following an investigation, is a judicially reviewable final decision. See Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 452, 99 S.Ct. 2388, 2393, 60 L.Ed.2d 1017 (1979). In contrast, the decision whether to investigate a proposed rate is generally, albeit not always, considered to be an unreviewable exercise of Commission discretion. Southern Railway Co., 442 U.S. at 454-55, 99 S.Ct. at 2394-95. The 4-R and Staggers Acts established that ICC jurisdiction should typically be preserved in situations of railroad market dominance, where effective competition is unavailable to limit the maximum level of rail rates charged captive shippers. The Long-Cannon Amendment was designed to give added protection to captive shippers. It was the result of Congress’ concern about the extent to which rail carriers might use their monopoly traffic to subsidize other traffic that faced effective competition. While there was no need for strict equality in contributions made by different traffic segments, “the amendment sought to assure that rail rate"
},
{
"docid": "7797275",
"title": "",
"text": "justify its tariff rates in individual tariff proceedings. Petitioners then brought this appeal, asserting that the FCC had unlawfully abdicated its statutory obligation under § 201(b) to ensure just and reasonable rates. Issue Whether this court has jurisdiction to review the FCC’s refusal to reject, or suspend and investigate, tariff filings. OPINION A statute, 28 U.S.C. § 2342, limits the jurisdiction of the courts of appeals to review of final decisions of the FCC. In denying petitions to reject, or suspend and investigate, AT&T’s tariff filings, the FCC did not rule here on the lawfulness of those tariffs, that is, on whether the tariffs comply with § 201(b). The FCC exercised its discretionary authority under § 204 of the Communications Act to allow tariffs to go into effect without suspension and investigation. That exercise constitutes a preliminary decision within the Commission’s exclusive discretion. It does not result in a final order reviewable in this court. In Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963) (Arrow), the Court held Interstate Commerce Commission exercises of its suspension powers nonreviewable. The Court pointed out that judicial review at that stage would undermine the agency’s primary jurisdiction by bringing the courts into adjudication of the lawfulness of rates in advance of administrative consideration. In Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (Southern Railway), the Court held that an agency’s decision not to investigate was similarly immune from judicial review. Construing § 15(8)(a) of the Interstate Commerce Act, a provision comparable to § 204, the Court said that provision cannot “be read to toler ate judicial review of the Commission’s decision not to investigate the lawfulness of a proposed rate schedule.” Id. at 454, 99 S.Ct. at 2394. The Court explained that though the statute which is “written in the language of permission and discretion”, id. at 455, 99 S.Ct. at 2394, leaves to the ICC’s unreviewable discretion the authority to investigate, the ICC’s exercise of its rate-investigation authority is not “entirely unre-viewable. ... For"
},
{
"docid": "5948453",
"title": "",
"text": "94th Cong., 1st Sess. (1975), reprinted in H.R.Rep. 94-725, 94th Cong., 1st Sess. (1975). S. 2718, 94th Cong., 1st Sess. (1975), reprinted in S.Rep. 94-499, 94th Cong., 1st Sess. (1975), U.S.Code Cong. & Admin.News 1976, p. 14. . H.R. 10979, § 303, reprinted in H.R.Rep. 94-725, 94th Cong., 1st Sess., 14 (1975). S. 2718, § 107, reprinted in S.Rep. 94-499, 94th Cong., 1st Sess. (1975). . H.R.Rep. 94-725, 94th Cong., 1st Sess., 60-62 (1975). S.Rep. 94-499, 94th Cong., 1st Sess., 15 (1975). . We are concerned, though, that the Commission, as its own motion to remand indicates, failed to address two major allegations argued strenuously by CP&L, namely, that the railroads’ rates were discriminatory and that the railroads had failed to provide evidence in their possession necessary to establish costs. (We discuss these allegations more fully below in Part IX, Section 10741 Attack on Rate as Discriminatory and Railroads’ Duty to Produce Evidence.) We are also concerned about the Commission’s apparent departure from prior decisions on several issues without adequate explanation. While the 180-day limit on consideration of an incentive rate case may be onerous, it does not excuse the failure to address all the issues raised, nor does it excuse the failure to adequately explain holdings. . Cf. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) and Georgia Power Co. v. United States, 617 F.2d 107 (5th Cir. 1980), both holding appellate courts have no jurisdiction to review a Commission’s decision not to investigate a rate under § 10707. In this case, there has been an investigation of market dominance and jurisdiction is clearly established under § 10709(b) establishing judicial review over determinations of market dominance. . We define “court-generated remand” and contrast it with “voluntary remand”, supra, p. 145. . The railroads suggest that judicial review without Commission correction of legal error would at least have precedential value in future cases. . Our review of Commission decisions reveals this to be the first case involving unit coal train traffic in which, after an investigation, the Commission did not"
},
{
"docid": "23014826",
"title": "",
"text": "v. Federal Maritime Board, 112 U.S.App.D.C. 290, 302 F.2d 875, 878-80 (1962), 46 U.S.C. § 821. However, the federal courts have long held that they may, in the exercise of their general equitable powers, entertain actions filed either by the Commission or by private parties for preliminary injunctions to maintain the status quo and prevent irreparable injury pending the outcome of the oft-times protracted administrative process of the FMC. Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917 (3d Cir. 1974) (cited hereafter as TTT); West India Fruit & Steamship Co. v. Seatrain Lines, 170 F.2d 775 (2d Cir. 1948), dism’d, 336 U.S. 908, 69 S.Ct. 514, 93 L.Ed. 1072 (1949); F. M. C. v. Australia/U. S. Atlantic & Gulf Conf., 337 F.Supp. 1032 (S.D.N.Y.1972); Delaware River Port Authority v. United States Lines, Inc., 331 F.Supp. 441 (E.D.Pa.1971); Federal Maritime Commission v. Atlantic & Gulf/Panama Canal Zone, 241 F.Supp. 766 (S.D.N.Y.1965); Penn. Motor Truck Ass’n v. Port of Philadelphia Marine Terminal Ass’n, 183 F.Supp. 910 (E.D.Pa.1960); Isbrandtsen Co. v. United States, 81 F.Supp. 544 (S.D.N.Y.1948) appeal dismissed sub nom. A/S J. Ludwig Mowinckels Rederi v. Isbrandtsen Co., 336 U.S. 941, 69 S.Ct. 813, 93 L.Ed. 1099 (1949). The Interstate Commerce Commission, on the other hand, is vested with power to suspend, at its discretion, for a period of seven months, rates filed with it pending hearing and decision on their lawfulness. 49 U.S.C. § 15(7). The existence of this power in the ICC, it has been held, evinces the deliberate decision of Congress to extinguish judicial power to grant any injunction which interferes with the Commission’s discretionary decision to suspend rates filed with it at anytime before the Commission finally determines the lawfulness of the rates. United States v. Scrap, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). The pro-minibridge forces, supported by the ICC as amicus curiae, while conceding the district court’s jurisdiction to consider issuing a preliminary injunction against the implementation or continuation of a rate"
},
{
"docid": "2079632",
"title": "",
"text": "of the Staggers Act, Congress reiterated “the Commission’s authority to determine market dominance.” Id. In the absence of any showing to the contrary, we are unwilling to conclude that Congress intended that the Commission should not apply to savings clause cases its most currently promulgated regulations, reflecting its continuing attempts to define more accurately the statutory concept of market dominance. “[T]he construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong .... ” FCC v. WNCN Listeners Guild, 450 U.S. 582, 598, 101 S.Ct. 1266, 1276, 67 L.Ed.2d 521 (1981) (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969)). Assuming, as we must for purposes of this action, the validity of the agency’s new market dominance standards, we find no basis for concluding that Congress intended that those regulations not apply to savings clause cases under § 229. III. “Retroactivity” Petitioner argues further that, because the Commission’s market dominance standards were not final until after the deadline for § 229 complaints, the Commission’s application of those standards is unjustifiably retroactive and therefore an abuse of discretion. We note first that evaluation of market dominance is jurisdictional in nature and that “a jurisdictional ruling may never be made prospective only.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676, 66 L.Ed.2d 571 (1981). The Commission is empowered to conduct rate reasonableness proceedings only when the carrier whose rates are challenged is demonstrated to have market dominance. See 49 U.S.C. § 10709(c). In so far as the Commission’s new regulations are valid refinements of the statutory jurisdictional standard, implementing that standard more precisely, the Commission has no jurisdiction to set rates for a carrier who has not been demonstrated to have market dominance under those regulations. Even in the case of non-jurisdictional standards, “a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative"
},
{
"docid": "2791846",
"title": "",
"text": "fact that plaintiffs probably had no standing under the D.C. Circuit’s prior decision, National Fed’n Fed. Employees v. Cheney; not reaching issue of “law to apply” and jurisdiction); National Maritime Union of America v. Commander, MSC, 824 F.2d 1228 (D.C.Cir.1987) (reaching merits of case complaining of violations of Circular A-76 without deciding whether plaintiffs had standing under Circular A-76 or whether court had jurisdiction to hear under APA). . Earlier cases denying review have suggested review is not available when statutes are written in permissive language or when statutes state that the decision of the Executive branch is final. See Schilling v. Rogers, 363 U.S. 666, 80 S.Ct. 1288, 4 L.Ed.2d 1478 (1960) (finding that review of administrative action denying claim for return of property under the Trading with the Enemy Act was not reviewable because review was precluded and the matter was committed to agency discretion under statute written in very \"permissive” language, id. at 674, 80 S.Ct. at 1294, which provided that officials \" ‘may return any property or interest vested in or transferred to the Alien Property Custodian ... or the net proceeds thereof, whenever the President or such officer or agency shall deter-mine_id. at 667, 80 S.Ct. at 1290); Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 313, 78 S.Ct. 752, 754, 2 L.Ed.2d 788 (1958) (holding that readjustment of tolls for Panama Canal under statute which explicitly provided that “changes in rates of tolls shall be subject to ... the approval of the President ... whose action in such matter shall be final and conclusive” was left to discretion of agency and result was not reviewable under APA); Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (holding that agency decision not to investigate proposed rate schedule was not reviewable, given enforcement channels still available and permissive language of provision at issue (“Commission may ... order a hearing,” id. at n. 1), and relying on Overton Park for \"no law to apply” as rule distinguishing cases in which review is unavailable, id. 442 U.S."
},
{
"docid": "6229797",
"title": "",
"text": "GODBOLD, Circuit Judge: Petitioner seeks review of the ICC’s decision not to suspend and investigate certain rail freight tariffs under § 15(8)(a) of the Interstate Commerce Act, 49 U.S.C. § 15(8)(a) (1976). The Commission’s decision not to investigate under § 15(8)(a) was based on its determination that the tariffs complained of became effective before filing of the petition. Petitioners would have us order the Commission to proceed with such an investigation. Such relief is clearly precluded by the Supreme Court’s recent decision in Southern Ry. Co. v. Seaboard Allied Milling Corp., - U.S. -, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979). There the Court held that the decision whether to commence a § 15(8)(a) investigation is committed to the discretion of the ICC and rejected the Eighth Circuit’s position that the Commission may be ordered to so act when “a substantial issue of patent illegality has been presented.” Seaboard Allied Milling Corp. v. ICC, 570 F.2d 1349, 1355 (CA8, 1978). After an extensive review of the structure and history of the Act, the Court concluded that there is “ ‘ “clear and convincing evidence” that Congress meant to prohibit all judicial review’ of the Commission’s limited decision not to initiate an investigation under § 15(8)(a) . . ” - U.S. at -, 99 S.Ct. at 2398, citing Dunlop v. Bachowski, 421 U.S. 560, 568, 95 S.Ct. 1851, 1858, 44 L.Ed.2d 377, 386 (1975). It could be argued that the present case is distinguishable from Seaboard in that the refusal here was based on the preliminary legal conclusion that the petition was not timely filed rather than discretionary policy grounds. While this factor was not relied upon by the Supreme Court, it could be used to bring this case within the narrow line of cases holding that even where an action is discretionary the decisionmaker must in fact exercise his discretion and not refuse to even consider discretionary action on the basis of an erroneous legal premise. Thus if the contention were that the Commission was wrong in holding that a § 15(8)(a) investigation may not be based on a petition"
},
{
"docid": "9532026",
"title": "",
"text": "retain the right under Section 13(1) of the Interstate Commerce Act to institute a complaint against a railroad. The subsequent Section 13(1) proceeding would differ from an ICC-initiated proceeding only in that the burden of proof and measure of damages differed in Section 13(1) proceedings from those used in the ICC-initiated proceedings that follow a rate suspension. Since, despite these differences, Section 13(1) still would fully compensate shippers if any illegality in the rate increase were shown, the Court held that the Commission’s decision was unreviewa-ble. See Southern Railway, 442 U.S. at 454-455, 99 S.Ct. at 2394. For present purposes, it is most important to note that the Court’s reasoning was based on a pragmatic determination that no substantial rights of private parties would be affected by a Commission decision not to suspend. Given the Commission’s discretion to control its own docket, see id. at 456-458, 99 S.Ct. at 2395-2396, and given the fact that ultimate review of the merits of the rates was assured, the Court thus used principles similar to those urged above to reach its holding that Commission decisions not to suspend are nonreviewable. The other cases dealing with decisions not to suspend use similar .reasoning to reach the same result. In United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), for example, petitioners sought to have the District Court order the Commission to suspend new, higher rates. The Supreme Court held that such an injunction would “constitute[ ] a direct interference with the Commission’s discretionary decision whether or not to suspend the rates.” Id. at 692, 93 S.Ct. at 2418. This result is entirely in keeping with the analysis I propose because, as Southern Railway, supra, was later to hold, it was not a decision that finally disposed of substantial private rights. Once the Commission has decided that it will suspend rates, SCRAP has nothing to say about whether its decision to suspend for a lengthy period — a decision that can injure the substantial rights of private parties — is reviewable. 2. Short Suspensions. If the Commission’s action has no"
},
{
"docid": "7797276",
"title": "",
"text": "Court held Interstate Commerce Commission exercises of its suspension powers nonreviewable. The Court pointed out that judicial review at that stage would undermine the agency’s primary jurisdiction by bringing the courts into adjudication of the lawfulness of rates in advance of administrative consideration. In Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (Southern Railway), the Court held that an agency’s decision not to investigate was similarly immune from judicial review. Construing § 15(8)(a) of the Interstate Commerce Act, a provision comparable to § 204, the Court said that provision cannot “be read to toler ate judicial review of the Commission’s decision not to investigate the lawfulness of a proposed rate schedule.” Id. at 454, 99 S.Ct. at 2394. The Court explained that though the statute which is “written in the language of permission and discretion”, id. at 455, 99 S.Ct. at 2394, leaves to the ICC’s unreviewable discretion the authority to investigate, the ICC’s exercise of its rate-investigation authority is not “entirely unre-viewable. ... For any [interested party] may require the Commission to investigate the lawfulness of any rate at any time — and may secure judicial review of any decision not to do so — by filing a .. . complaint [under the complaint provisions of the Act].” Id. at 454, 99 S.Ct. at 2394. The nonreviewability doctrine of Arrow and Southern Railway has been held to preclude judicial review of the Federal Energy Regulatory Commission refusal to reject a tariff filing: The decision whether to reject or to accept a rate filing is based on precisely the same information, and primarily the same considerations, that govern decisions to suspend or not to suspend, to investigate or not to investigate. The decision to accept a rate filing is a necessary adjunct to the unreviewable decision to suspend and investigate. It would make little sense to declare orders concerning suspension and investigation unreviewable if the courts may review the related order to accept a rate filing. Papago Tribal Utility Authority v. FERC, 628 F.2d 235, 243 (D.C.Cir.1980). When asked to"
},
{
"docid": "9532027",
"title": "",
"text": "to reach its holding that Commission decisions not to suspend are nonreviewable. The other cases dealing with decisions not to suspend use similar .reasoning to reach the same result. In United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), for example, petitioners sought to have the District Court order the Commission to suspend new, higher rates. The Supreme Court held that such an injunction would “constitute[ ] a direct interference with the Commission’s discretionary decision whether or not to suspend the rates.” Id. at 692, 93 S.Ct. at 2418. This result is entirely in keeping with the analysis I propose because, as Southern Railway, supra, was later to hold, it was not a decision that finally disposed of substantial private rights. Once the Commission has decided that it will suspend rates, SCRAP has nothing to say about whether its decision to suspend for a lengthy period — a decision that can injure the substantial rights of private parties — is reviewable. 2. Short Suspensions. If the Commission’s action has no substantial (and final) effect on private rights, it ought not be reviewable. In determining whether a short (i.e., one-day) suspension is reviewable, it is necessary to inquire whether a short suspension has a substantial effect on private rights. This question, in turn, must be analyzed in terms of the effect of a short suspension on the utility and the effect of a short suspension on other parties, usually the utility’s customers. As for the utility, its primary legitimate interest is in being able to receive the pro ceeds generated by reasonable rates. If its new rates are ultimately determined to be unreasonable, it has no right to the proceeds of the new rates and cannot suffer legally cognizable injury as the result of a suspension order. ■ If, on the other hand, its new rates are ultimately determined to be reasonable, then it may incur the loss of revenues for the one-day period of the suspension. And this loss is final: as explained above, the utility’s customers may not be forced to pay the utility"
},
{
"docid": "8146613",
"title": "",
"text": "govern decisions to suspend or not to suspend, to investigate or not to investigate. The decision to accept a rate filing is a necessary adjunct to the unreviewable decision to suspend and investigate. It would make little sense to declare orders concerning suspension and investigation unreviewable if the courts may review the related order to accept a rate filing. A holding that we could assume jurisdiction in this case would, in effect, avoid the strictures of Arrow Transportation and Southern Railway on the nicest of distinctions. Moreover, the considerations that led the Supreme Court to declare orders concerning suspension and investigation of rates nonreviewable also apply to this case. The order presented for review in this case is not a decision on the merits, cf. Southern Railway Co. v. Seaboard Allied Milling Corp., supra, 442 U.S. at 451, 99 S.Ct. at 2392. Its consequences to petitioner are relatively minor, cf. id. at 454-455, 99 S.Ct. at 2394. For us to judge whether FERC erred in accepting intervenor’s rate filing would “undermine the Commission’s primary jurisdiction by bringing the court[] into the adjudication of the lawfulness of rates in advance of administrative consideration,” cf. id. at 460, 99 S.Ct. at 2397, and would place an intolerable burden on FERC by second-guessing its preliminary and necessarily hasty decisions regarding acceptance of rate filings, cf. id. at 457, 99 S.Ct. at 2395. Indeed, the considerations that underlay the decisions in Arrow Transportation and Southern Railway even more strongly militate against review of the order challenged in this case. Those orders were declared unreviewable despite the fact that the petitioners might suffer irreparable injury from them. In the case at bar petitioner’s interests may be fully vindicated upon review of the final order of the Commission. We therefore conclude that orders accepting rate filings challenged on grounds of patent invalidity are nonreviewable, because immediate review of such orders would invade the province reserved to the discretion of the agency. D The three considerations that lead us to conclude we lack jurisdiction to review this order — finality, irreparable injury, and interference with agency discretion"
},
{
"docid": "9532064",
"title": "",
"text": "from putting the lower rates into effect until the Commission completed its proceedings. The case thus could have been decided on the simple ground that no one — neither the Commission nor the courts — could extend a suspension beyond the seven-month period permitted by statute. As such, it would have had no relevance to today’s problem. But the court chose to decide the case on much broader grounds, treating the issue in the case as analytically identical to the issue raised by the one-day suspension in Municipal Light Boards (and therefore a close kin of the failure-to-suspend cases): Can a court lengthen a suspension ordered by the Commission? The court’s answer to this question was a sharp “no.” See also United States v. SCRAP, 412 U.S. 669, 691, 93 S.Ct. 2405, 2418, 37 L.Ed.2d 254 (1973) (stressing that Arrow Transportation indeed held that courts had no power to order rate suspensions). For present purposes, it is essential to realize that the plaintiffs in Arrow Transportation were not challenging the lengthy suspension that the Commission had ordered. One way to see the identity of issues in the failure-to-suspend/one-day suspension cases and Arrow Transportation is to dissect the Commission’s decision into two parts. First, the Commission had decided to suspend the rates. One little-realized aspect of this decision is that it permits the rail carriers to charge the new rate after the suspension period has run. See SCRAP, 412 U.S. at 697, 93 S.Ct. at 2421. It is this aspect of the suspension decision that plaintiffs were challenging. But this aspect of the decision to suspend, like other aspects of that decision, is not reviewable, since it does not finally dispose of substantial private rights: the Court indicated that plaintiffs retained their independent remedy for any damages they suffered if the new rates turned out to be unjustified. See Arrow Transportation, 372 U.S. at 669, 83 S.Ct. at 990. Second, the Commission had decided to suspend the rates for seven months. The plaintiffs in the case had no quarrel with this decision, and the case cannot thus be read to imply"
},
{
"docid": "342972",
"title": "",
"text": "decisions under the ICA not to pursue an investigation once begun lie squarely within the agency’s discretion, even if the initial investigation reveals that some rates, though not all, are illegal. See generally United States v. Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181 (1933) (refusing to invalidate agency decision not to prescribe rates, even though some individual rates were unjust and unreasonable); see also United States v. SCRAP, 412 U.S. 669, 692 n. 16, 93 S.Ct. 2405, 2418 n. 16, 37 L.Ed.2d 254 (1973) (even after preliminary investigation of rate schedules and finding that they contain individually unreasonable rates, refusal to suspend rates as generally unlawful not a reviewable decision on the merits). What is more, the Supreme Court has suggested, albeit in dicta, that a party dissatisfied with a decision to terminate an ongoing investigation is without recourse to the courts. See National R.R. Passenger Corp. v. National Assoc. of R.R. Passengers, 414 U.S. 453, 462 n. 9, 94 S.Ct. 690, 695 n. 9, 38 L.Ed.2d 646 (1974). This congressionally granted, judicially confirmed discretion, coupled with the general policy favoring settlement of administrative proceedings, see United, supra, 732 F.2d at 209; Pennsylvania Gas & Water Co. v. FPC, 463 F.2d 1242 (D.C.Cir.1972), lead us to the conclusion that neither the statute nor the agency’s corpus of rules requires the Commission under any and all circumstances to prescribe just and reasonable rates whenever a party requests that it do so, even after administrative proceedings have been underway for some considerable time. In the absence of any absolutist and rigid statutory requirement, Arctic falls back to the position that, under the particular circumstances here, the Commission was duty bound to see the case through to the end. In this regard, Arctic relies on Minneapolis Gas Co. v. FPC, supra, 294 F.2d 212, for support. Minneapolis Gas, however, is a far cry from the unique situation before us. For one thing, that case did not involve a settlement. Moreover, all that remained for the agency to do before issuing its final decision was to approve or disapprove the ALJ’s"
},
{
"docid": "5948454",
"title": "",
"text": "on consideration of an incentive rate case may be onerous, it does not excuse the failure to address all the issues raised, nor does it excuse the failure to adequately explain holdings. . Cf. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) and Georgia Power Co. v. United States, 617 F.2d 107 (5th Cir. 1980), both holding appellate courts have no jurisdiction to review a Commission’s decision not to investigate a rate under § 10707. In this case, there has been an investigation of market dominance and jurisdiction is clearly established under § 10709(b) establishing judicial review over determinations of market dominance. . We define “court-generated remand” and contrast it with “voluntary remand”, supra, p. 145. . The railroads suggest that judicial review without Commission correction of legal error would at least have precedential value in future cases. . Our review of Commission decisions reveals this to be the first case involving unit coal train traffic in which, after an investigation, the Commission did not find one of the presumptions to apply and market dominance to exist. In only one case brought to our attention has the Commission said there was no market dominance in a coal movement. In Increased Rate on Coal-Arco, Tennessee to Harllee, Georgia, SOU and CGA, Docket No. I & S 9217, Decision Served August 23, 1979 (by Division 1) (unprinted), reconsideration denied, Decision served October 19, 1979 (by Commission) (unprinted), petition denied sub nom. Georgia Power Co. v. United States, 617 F.2d 107 (5th Cir. 1980), the Commission refused to investigate a coal traffic rate under § 10707 because of the protestants’ failure to demonstrate a likelihood of success and because intramodal competition indicated no market dominance. This was a one page decision cursorily finding no market dominance without an investigation or elaboration and as such lends no support to the Commission’s conclusion in this case. . We are not convinced that the record has evidence of only docketing the rate for CP&L’s traffic. In evidence concerning the railroads’ negotiation with CP&L, one railroad witness"
},
{
"docid": "8137370",
"title": "",
"text": "§ 11701 (Supp. V 1981). An ICC decision to approve or disapprove rates, following an investigation, is a judicially reviewable final decision. See Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 452, 99 S.Ct. 2388, 2393, 60 L.Ed.2d 1017 (1979). In contrast, the decision whether to investigate a proposed rate is generally, albeit not always, considered to be an unreviewable exercise of Commission discretion. Southern Railway Co., 442 U.S. at 454-55, 99 S.Ct. at 2394-95. The 4-R and Staggers Acts established that ICC jurisdiction should typically be preserved in situations of railroad market dominance, where effective competition is unavailable to limit the maximum level of rail rates charged captive shippers. The Long-Cannon Amendment was designed to give added protection to captive shippers. It was the result of Congress’ concern about the extent to which rail carriers might use their monopoly traffic to subsidize other traffic that faced effective competition. While there was no need for strict equality in contributions made by different traffic segments, “the amendment sought to assure that rail rate flexibility would not result in [captive] shippers bearing a disproportionate share of responsibility for the needed improvement in the railroads’ financial position.” 365 I.C.C. at 988. See also 125 Cong.Rec. 36,422 (1979) (“rates on coal should not .. . subsidize the continuation of antiquated and inefficient railroad practices”) (remarks of Senator Long introducing original version of Long-Cannon Amendment); 126 Cong.Rec. 7264-67 (1980) (remarks of Senators Long, Cannon, Baucus & Bentsen). Toward this end, the Long-Cannon Amendment specified certain factors that the ICC should consider in determining whether to investigate a proposed rate, and in evaluating the reasonableness of the rate. To trigger these factors, the rate must satisfy a threshold test of market dominance, set out at section 10707a(eX2)(A). The Long-Cannon market dominance test is more rigorous than the ICC’s jurisdictional market dominance test set out at section 10709(d). If the rate meets the Long-Cannon criteria, “the Commission may, on its own initiative, or on complaint of an interested party, begin an investigation proceeding to determine whether the proposed rate increase violates” the subtitle. 49"
},
{
"docid": "23205423",
"title": "",
"text": "it may also be appropriate in some cases in which we find the shippers’ claims to have merit, to suspend the rate change and/or ultimately to find that the filing of the change is unreasonable and unlawful and to prescribe a rate that conforms to the contract. Our conclusions are based on both legal and policy considerations. As a legal matter, in cases in which a carrier files a rate change that is approved by the Commission but that is in violation of the carrier’s contract with a shipper, we believe that courts are without legal authority to provide shippers with a meaningful remedy for the breach of contract. Thus, it is well settled that courts may not award damages to shippers that would have the effect of reducing their transportation charges below the rate on file with the Commission. See, e. g., Montana-Dakota Co. v. Northwestern Public Service Co., 341 U.S. 246, 251, [71 S.Ct. 692, 695, 95 L.Ed. 912] (1951); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 453 [65 S.Ct. 716, 724, 89 L.Ed. 1051] (1945); Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U.S. 516, 520 [59 S.Ct. 612, 614, 83 L.Ed. 953] (1939); Farley Terminal Co., Inc. v. Atchison, T. & S. F. Ry. Co., 522 F.2d 1095, 1098 (9th Cir. 1975). It is also well established that a court has no power to suspend or enjoin the effectiveness of a rate on file with the Commission. See, e. g., [Southern Ry. Co. v.] Seaboard Allied Milling Corp. v. Southern Ry. Co. [442 U.S. 444], 99 S.Ct. 2388 [60 L.Ed.2d 1017] (1979); United States v. SCRAP, 412 U.S. 669 [93 S.Ct. 2405, 37 L.Ed.2d 254] (1973); Arrow Transportation Co. v. Southern Ry., 372 U.S. 658 [83 S.Ct. 984, 10 L.Ed.2d 52] (1963). The principle of those cases would also preclude courts from ordering a carrier to file a superceding tariff with the Commission in accordance with its contract because such an order would have the same effect as suspending a rate on file with the Commission. In light of these authorities, the Commission has concluded that if"
}
]
|
10368 | Thus it is established that Zimmer applied to the judge who rendered the final order in his habeas corpus proceeding within the 30 days allowed for appeal in habeas corpus cases and that the judge denied his application for certificate of probable cause to appeal also within the time limited for appeal. Wherefore he had from March 12th to March 24th in which to apply to the circuit justice, a judge of this court or to the court for a certificate of probable cause and still be within the time limited for appeal. However, he waited until after the 30 days for appeal had expired before doing so. Zimmer’s present application is therefore out of time under this court’s decision in REDACTED Moreover, we see no merit in Zim-mer’s case. He was a petty officer in the United States Navy apparently stationed at Newport, Rhode Island. In December 1954 he was arrested, and subsequently he was indicted in the Rhode Island Superior Court for murder in the first degree. His trial on plea of not guilty began on April 11, 1955, at which he was represented by counsel. On April 15th he was allowed to plead nolo contendere to murder in the second degree and was sentenced to imprisonment for life. i Subsequently he filed a petition for habeas corpus in the Supreme Court of Rhode Island alleging | [
{
"docid": "23175315",
"title": "",
"text": "district court a document entitled “Assignment of Errors and motion for certificate of probable cause to issue”, the first paragraph of which might liberally be construed to serve the purpose of an informal notice of appeal. The motion for a certificate of probable cause was denied on the same day by Judge McCarthy. Also, on April 4, 1951, the district judge denied a motion for leave to proceed with the appeal in forma pauperis. On April 11, 1951, Farrell filed a motion for the issuance of a special writ to bring the petitioner before the court for the purpose of argument pro se on the existence of probable cause for an appeal. This motion was denied April 13, 1951. Petitioner did nothing further until May 16, 1951, on which date he filed in this court the motions now under consideration, asking us (1) to issue a certificate of probable cause for the appeal, and (2) to allow peti tioner to prosecute the appeal in forma pauperis. In 28 U.S.C. § 2253 it is provided: “An appeal may not he taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause.” This provision of law goes back to the Act of March 10, 1908, 35 Stat. 40. Congress was concerned to eliminate the abuse of the writ of habeas corpus in the federal courts by the undue interference with state processes incident to protracted appellate proceedings in frivolous cases. See H.R.Rep. No. 23, 60th Cong., 1st Sess. (1908). Thus, for example, sometimes the constitutional point sought to be raised in a petition for habeas corpus is unsubstantial, or clearly without merit in view of controlling decisions of the Supreme Court. Or sometimes the federal district court may issue the writ, and after a full hearing may discharge the same pursuant to findings of fact which an appellate court obviously could not set"
}
]
| [
{
"docid": "15258304",
"title": "",
"text": "degree murder. Although the trial court granted Voravong-sa’s motion for a new trial, the Rhode Island Supreme Court remanded the case with directions to deny the motion for a new trial, reinstate his conviction, and proceed with sentencing. See State v. Vorgvongsa, 670 A.2d 1250, 1255 (R.I.1996) (Vorgvongsa I). On remand, Voravongsa was sentenced to a mandatory term of life imprisonment. His direct appeal of that conviction was denied by the Rhode Island Supreme Court. See State v. Vorgvongsa, 692 A.2d 1194 (R.I.1997) (Vorgvongsa II). He did not file a petition for certiorari with the United States Supreme Court, and, pursuant to court rules, the ninety-day period in which he had to do so expired on July 14, 1997. Thus, on that date, his conviction became final. For purposes of this appeal, the parties agree that on June 24, 1997, Voravongsa filed three separate motions in the Rhode Island Superior Court: (1) motion for appointment of counsel; (2) petition for a writ of habeas corpus ad testificandum; and (3) motion to assign. On August 4, 1997, the Rhode Island Superior Court appointed an attorney to represent him. The parties agree that on September 4, 1998, thirteen months after being provided with counsel, and nearly seventeen months after the Rhode Island Supreme Court affirmed his conviction, Voravongsa filed a counseled application for state post-conviction relief pursuant to Rhode Island General Laws § 10-9.1-1 et seq. The application was denied on October 20, 1999. See In the Matter of Vorgvongsa, No. 98-4502, 1999 WL 1001187, at *1 (R.I.Super.1999) (Vorgvongsa III). On December 3, 2001, the Rhode Island Supreme Court affirmed the denial of relief. See Vorgvongsa v. State, 785 A.2d 542, 550 (R.I.2001) (Vorgvongsa IV). While waiting for a decision from the Rhode Island Supreme Court on his petition for state post-conviction relief, on March 24, 2000, Voravongsa filed in federal court a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a motion for the appointment of counsel. The State then moved to dismiss the petition on the ground that it was time-barred. The"
},
{
"docid": "21963721",
"title": "",
"text": "OPINION • PETTINE, District Judge. This is a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. The petitioner is presently incarcerated under the control of the defendant warden pursuant to a judgment of the Rhode Island state courts. The court accepts as true the petitioner’s factual allegations. There is no question that the petitioner has exhausted available state remedies. The case has a long history which is as follows. On June 13, 1963, petitioner pleaded nolo contendere to indictment no. 2106, which charged him with breaking and entering, and on June 28, 1963, petitioner was sentenced to a term of one year at the Adult Correctional Institution. Petitioner served the sentence. On October 7, 1965, petitioner pleaded nolo contendere to indictment no. 2457, which charged him with the possession of a firearm after conviction of a crime of violence, and on October 21, 1965 sentence was deferred on that plea. On December 4, 1967, petitioner was again indicted for breaking and entering. That indictment, which is indictment no. 2888, is still pending in the Rhode Island Superior Court. On March 11, 1968, petitioner was found to have violated the terms of the sentence in indictment no. 2457, which had been deferred on October 21, 1965, and was sentenced to a term of five years, which he is now serving. On September 18, 1968, a hearing was held in Rhode Island Superior Court on petitioner’s request for a writ of error coram nobis, in which he sought to and did establish that in 1963, when he pleaded nolo to indictment no. 2106 and was sentenced to one year, he did not make a knowing and understandingly clear waiver of those constitutional rights which properly belong to all citizens charged with crime. The Superior Court, however, denied and dismissed the petition for the reason that, because the one year sentence in indictment no. 2106 had been served, the issues presented were moot. Petitioner thereupon requested habeas corpus relief from the Rhode Island Supreme Court contending that habeas corpus was the appropriate remedy, that the 1963 conviction in indictment no."
},
{
"docid": "23064547",
"title": "",
"text": "a judge or a panel of the Court for determination whether to grant or deny a certificate of probable cause. See proposed Rule 22(b) of the Federal Rules of Appellate Procedure. These rules will be applied to all pending and future cases. They will be set out in an amendment to our Rules of Court, and will supersede our present Rule 11 (4), which is now revoked. II. In the present case the petition for rehearing was filed on December 18, 1966, more than ten days after the order denying the petition for habeas corpus. It was therefore untimely under Rule 59(a) and hence did not terminate the running of the time for appeal under Rule 73(a). But the application for a certificate of probable cause which was filed with the district court on December 18, 1966, eleven days after the denial of the petition for habeas corpus on December 7, 1966, was effective as a notice of appeal filed within thirty days of the denial of the petition for habeas corpus. The notice of appeal formally filed in the district court thereafter, on January 24, 1967, may be deemed surplusage. Since an informal but timely notice of appeal was filed within thirty days and a certificate of probable cause was issued by a judge of this court, even though more than thirty days after the decision below, the appeal was proper and we have jurisdiction to consider it on the merits. To the extent that our prior decisions such as United States ex rel. Carey v. Keeper of Montgomery County Prison, supra, and Commonwealth of Pennsylvania ex rel. Ricks v. Maroney, supra, are inconsistent with the rules and decision we have now announced they are overruled. III. We turn now to the substance of the appeal. Almost nine years ago, on February 18, 1959, after a joint trial a jury found appellant guilty of first degree murder with a recommendation of life imprisonment. Sentence was imposed on February 27, 1959. Appellant did not attack his conviction and sentence until September 16, 1965, when he filed a petition for habeas"
},
{
"docid": "2164159",
"title": "",
"text": "they came around the corner. In one statement, Scott said he saw Mitchell ' shoot Marcus, then jump in his car and leave. He also said that Spivey had fired his shotgun in the direction of Marcus after Marcus had hit the ground. Johns had come out of his mother’s house following the shots and he, Spivey and Scott then left in his car. Spivey was arrested the following day. On August 16, 1990, Spivey was convicted of second degree murder (Cal.Penal Code, § 187) and assault with a deadly weapon (Cal.Penal Code, § 245, subd. (a)(2)). On September 30, 1992, the California Court of Appeal for the Third Appellate District affirmed the convictions. The California Supreme Court denied review on December 30, 1992. Spivey filed an application for writ of habeas corpus in San Joaquin county Superior Court, which was denied on November 22, 1994. Subsequently, Spivey filed a petition in the California Court of Appeal, Third Appellate District, which was denied on April 6,1995. The California Supreme Court denied a petition for writ of habeas corpus on October 4, 1995. On March 18, 1996, Spivey filed a petition for habeas corpus in the United States District Court for the Eastern District of California. On September 23, 1997, Magistrate Judge Moulds filed his findings and recommendations, recommending that Spivey’s petition be denied. On November 6, 1997, the district court filed an order adopting the recommendations of the magistrate and entered judgment denying Spivey’s petition for habeas corpus. On December 26, 1997, the district court issued a certificate of probable cause. STANDARD OF REVIEW The districts court’s decision to grant or deny a 28 U.S.C. § 2254 habeas petition is reviewed de novo. See Schell v. Witek, 181 F.3d 1094, 1097 (9th Cir.1999); see also McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999) (per curiam). The standard for determining whether habeas relief should be granted is whether the alleged errors “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting"
},
{
"docid": "22667265",
"title": "",
"text": "stage of the proceedings against the defendant,” citing United States ex rel. Glenn v. McMann, 349 F. 2d 1018 (C. A. 2d Cir. 1965), cert. denied, 383 U. S. 915 (1966), and other cases. The allegation of coercion by the trial judge did not call for a hearing since the prosecutor had filed an affidavit in the state court categorically denying that the trial judge ever threatened the defendant. Dash then appealed to the Court of Appeals for the Second Circuit. Richardson: Respondent Richardson was indicted in April 1963 for murder in the first degree. Two attorneys were assigned to represent Richardson. He initially pleaded not guilty but in July withdrew his plea and pleaded guilty to murder in the second degree, specifically admitting at the time that he struck the victim with a knife. He was convicted and sentenced to a term of 30 years to life. Following the denial without a hearing of his application for collateral relief in the state courts, Richardson filed his petition for habeas corpus in the United States District Court for the Northern District of New York, alleging in conclusory fashion that his plea of guilty was induced by a coerced confession and by ineffective court-appointed counsel. His petition was denied without a hearing, and he appealed to the Court of Appeals for the Second Circuit, including with his appellate brief a supplemental affidavit in which he alleged that he was beaten into confessing the crime, that his assigned attorney conferred with him only 10 minutes prior to the day the plea of guilty was taken, that he advised his attorney that he did not want to plead guilty to something he did not do, and that his attorney advised him to plead guilty to avoid the electric chair, saying that “this was not the proper time to bring up the confession” and that Richardson “could later explain by a writ of habeas corpus how my confession had been beaten out of me.” Williams: In February 1956, respondent Williams was indicted for five felonies, including rape and robbery. He pleaded guilty to robbery"
},
{
"docid": "15258303",
"title": "",
"text": "SILER, Senior Circuit Judge. In this appeal, we are asked to decide one question of law: whether petitioner Lamphone Voravongsa’s pro se motion for appointment of state post-conviction counsel constitutes a “properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim” within the meaning of 28 U.S.C. § 2244(d)(2), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, thereby tolling the one-year period of limitations that would otherwise bar review of Voravongsa’s federal habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Although the question is one of first impression in this circuit, a straightforward reading of 28 U.S.C. § 2244(d)(2), as well as the Rhode Island post-conviction statutory scheme, and the federal and state court decisions interpreting each of the statutes, make plain that Voravongsa’s federal habeas petition was untimely under AEDPA’s statute of limitations. Accordingly, the district court’s dismissal of Vora-vongsa’s habeas petition is affirmed. I. BACKGROUND In 1994, Voravongsa was convicted in Rhode Island of first degree murder. Although the trial court granted Voravong-sa’s motion for a new trial, the Rhode Island Supreme Court remanded the case with directions to deny the motion for a new trial, reinstate his conviction, and proceed with sentencing. See State v. Vorgvongsa, 670 A.2d 1250, 1255 (R.I.1996) (Vorgvongsa I). On remand, Voravongsa was sentenced to a mandatory term of life imprisonment. His direct appeal of that conviction was denied by the Rhode Island Supreme Court. See State v. Vorgvongsa, 692 A.2d 1194 (R.I.1997) (Vorgvongsa II). He did not file a petition for certiorari with the United States Supreme Court, and, pursuant to court rules, the ninety-day period in which he had to do so expired on July 14, 1997. Thus, on that date, his conviction became final. For purposes of this appeal, the parties agree that on June 24, 1997, Voravongsa filed three separate motions in the Rhode Island Superior Court: (1) motion for appointment of counsel; (2) petition for a writ of habeas corpus ad testificandum; and (3) motion to assign. On August 4,"
},
{
"docid": "23064538",
"title": "",
"text": "OPINION OF THE COURT FREEDMAN, Circuit Judge. In 1959 a jury in the Superior Court of New Jersey found appellant guilty of murder in the first degree with a recommendation of mercy under which he was sentenced to life imprisonment. The present appeal is from the district court’s dismissal of his petition for habeas corpus on the ground that he had not exhausted the remedies available to him in the courts of New Jersey as required by 28 U.S.C. § 2254. I. We encounter at the threshold the jurisdictional problem which results when more than thirty days have elapsed after the denial of a petition for habeas corpus before a notice of appeal is filed or the certificate of probable cause required by 28 U.S.C. § 2253 is granted. Habeas corpus is a civil remedy and therefore is subject to the general requirement that a notice of appeal must be filed within thirty days from the entry of the order denying the petition. Congress has added the requirement that where the detention complained of arises out of process issued by a state court, an “appeal may not be taken * * * unless the * * * judge who rendered the order [denying the petition for habeas corpus] or a circuit justice or judge issues a certificate of probable cause” 28 U.S.C. § 2253. Rule 81(a) (2) of the Federal Rules of Civil Procedure continues this provision in force. Here the district court’s order dismissing the petition for a writ of habeas corpus was entered on December 7, 1966. On December 18, 1966 appellant filed in the district court an application for a certificate of probable cause and a petition for rehearing, both of which the court denied on December 23, 1966. The petition for rehearing was filed more than ten days after the entry of the order denying the petition for habeas corpus and therefore did not suspend the running of the time for filing a notice of appeal or any time required for obtaining a certificate of probable cause. On January 18, 1967, thirty-nine days after the denial"
},
{
"docid": "17926707",
"title": "",
"text": "15. On December 20, 1999, he was again transferred to federal custody, this time for trial. A jury found D’Amario guilty on the felon-in-possession charge, and on March 10, 2000, Judge DiClerico sentenced him to 18 months’ imprisonment. Judge DiClerico recommended that the Bureau of Prisons (“BOP”) give D’Amario credit for the period that he had spent in custody since his federal indictment. In so doing, however, Judge DiClerico recognized that the BOP was not required to accept his recommendation. See App. at 782. Following the federal sentencing, D’Amario was returned to the state for the probation violation hearing, and on March 13, 2000, Judge Clifton of the Rhode Island Superior Court sentenced D’Amario to a term of 386 days’ imprisonment and entered a judgment for “time served,” crediting D’Amario for the time that he had spent in custody from February 22, 1999, to the date of the judgment. App. at 755, 775. D’Amario was then released to federal custody to serve his federal sentence and was sent to the Federal Correctional Institution at Ft. Dix, New Jersey. Because almost all of the time that D’Amario had spent in custody following his' arrest had already been credited against his state sentence, the BOP declined under 18 U.S.C. § 3585(b) to credit any of that time against his federal felon-in-possession sentence. Under that provision, time spent in custody before sentencing may be credited against a sentence if, among other things, that time “has not been credited against another sentence.” Id. ■ Although D’Amario could have challenged the BOP’s decision in administrative proceedings, he did not do so but instead filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the District of Rhode Island. On June 5, 2000, Judge DiClerico dismissed the petition without prejudice to re-filing in the District of New Jersey after exhaustion of administrative remedies. In an appeal, the United States Court of Appeals for the First Circuit affirmed D’Amario’s conviction and sentence and held that he could not contest the BOP’s decision concerning his sentence until he had exhausted administrative remedies. United"
},
{
"docid": "23064579",
"title": "",
"text": "the court of appeals itself”. The holding in Farrell was adhered to by the First Circuit in two cases in 1964 — Landry v. Commonwealth of Massachusetts, 336 F.2d 189, 190, and Zimmer v. Langlois, 331 F.2d 424. In Landry, the appellant had filed in the district court timely notice of appeal and a motion for leave to proceed in forma pauperis which that court granted. The appeal was dismissed for lack of jurisdiction on the ground that the appellant had not sought a certificate of probable cause for his appeal “and the time has now run for such application under the decision of this court in Ex parte Farrell * * * ” 336 F.2d 190. In Zimmer where the district court had denied a petition for a writ of habeas corpus on February 24, 1964 and an application for a certificate of probable cause on March 12, 1964, the court of appeals denied an application made to it on April 4, 1964 for a certificate of probable cause on the ground that it had been presented after the expiration of “the 30 days for appeal” from the February 24, 1964 order of the district court. In doing so the court cited Farrell. In United States ex rel. Geach v. Ragen, 231 F.2d 455 (7 Cir. 1956), it was held that a certificate of probable cause could not be issued by a federal appellate judge or court where 30 days had elapsed since the entry of the district court’s order denying a petition for a writ of habeas corpus even though notice of appeal had been filed within the 30-day period. In doing so the court said (p. 457): “The application to one of the judges of this Court * * * for a certificate of probable cause, being made after the thirty day appeal period, was made too late. This Court is without power to grant the application, even if it were otherwise thought that there had been probable cause for the appeal.” Analogous here is Poe v. Gladden, 287 F.2d 249, 250-251 (9 Cir. 1961), where the"
},
{
"docid": "21004447",
"title": "",
"text": "WOOD, District Judge. The petitioner is presently serving a life sentence in the State Correctional Institution, Philadelphia, Pennsylvania, pursuant to his conviction and sentence on March 8, 1954, for first degree murder. He never appealed this judgment, but he has exhausted his state habeas corpus remedies. The petition presents one question for our consideration, namely: Was the petitioner deprived of due process when unrepresented by counsel he entered a plea of guilty to murder at a preliminary hearing before a justice of the peace on April 1, 1953? The petitioner was arrested on March 28, 1953, for the fatal shooting of his wife. On April 1, 1953, he entered his plea of guilty to murder as aforesaid without the advice of counsel. He never requested counsel at this time. Subsequently, on May 11,1953, he was indicted on the charge of murder, and on May 25, 1953, the court appointed two lawyers to represent him. On November 30, 1953, the petitioner was arraigned before the court and in the presence of his counsel he entered a plea of guilty to the indictment. Following this proceeding, on December 17, 18 and 23, 1953, a hearing was conducted by two judges to fix the degree of his guilt and punishment. The court adjudged the petitioner guilty of murder in the first degree and fixed his punishment at life imprisonment. In his short petition, Mr. Maisen-helder, at page 5, states that he “ * * * did not know what his rights were or that he could have an attorney. Consequently, having no comprehension of what his legal rights were under the law, he entered a plea of guilty.” This brief statement sets forth his ground for setting aside his conviction as a nullity. Pennsylvania law which provides for the appointment of counsel for persons accused of murder is of ancient vintage and antedates the present state constitution (Art. I, § 9, P.S.) or the 14th Amendment to the Federal Constitution: See Act of May 31, 1718, 1 Sm.L. 105, Section 4, 19 P.S. § 783. It was not until 1907 that compensation of"
},
{
"docid": "23710513",
"title": "",
"text": "WINTER, Circuit Judge: Petitioner seeks review of the summary denial of his petition for a writ of habeas corpus. Because we conclude that, under the guiding principles of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), enunciated subsequent to the judgment of the district court, petitioner’s plea of guilty to the crime of second degree murder was demonstrably coerced, the judgment appealed from will be reversed and the district court directed to issue the writ, staying its effect for a reasonable period to enable North Carolina to retry petitioner if it be so advised. Petitioner was indicted by a grand jury of the State of North Carolina for murder in the first degree. With the approval of the state, he pleaded guilty to murder in the second degree and was sentenced on December 10, 1963, to a term of thirty years. In due course, he sought and was granted a post-conviction hearing, pursuant to N.C.Gen.Stat. §§ 15-217—15-222 (1965). The state judge who conducted the hearing rejected petitioner’s various constitutional contentions, including the claim that his guilty plea had been involuntarily induced. After the unsuccessful pursuit of various state remedies, petitioner sought a writ of habeas corpus from the district court. On September 3, 1965, the district judge denied the relief sought, expressly adopting the facts concerning the voluntariness of petitioner’s plea as previously found by the state judge in the post-conviction proceedings. After the time for appeal to this Court had expired, petitioner filed with the district court a purported notice of appeal, which was treated by the district court as a motion for a certificate of' probable cause and a motion for a new hearing. Both motions were denied, and we dismissed petitioner’s appeal on the ground that it had not been perfected within the prescribed thirty-day time limit. Alford v. North Carolina, No. 10,391 (4 Cir. August 25, 1966) (Mem.). Concurrently, a petition for a writ of habeas corpus was filed in this Court and was denied by Chief Judge Haynsworth, who also rejected petitioner’s various constitutional contentions. Again, in 1967, petitioner"
},
{
"docid": "11051919",
"title": "",
"text": "MEMORANDUM OPINION AND ORDER AND CERTIFICATE OF APPEALABILITY KANE, Senior District Judge. Before me is the petitioner’s Application for a Certificate of Probable Cause filed on April 26,1996 and signed by his counsel that same day. I denied his Petition for Writ of Habeas Corpus in a Memorandum Decision and Order on March 28,1996. The dates are important because on April 24, 1996 President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of1996. This Act contains, among other significant provisions, amendments to 28 U.S.C. §§ 2244, 2253, 2254, 2255; Rule 22 of the Federal Rules of Appellate Procedure; and 21 U.S..C. § 848(q). The amended 28 U.S.C. § 2253 provides an appeal may not be taken to the court of appeals from a district judge’s ruling on a state prisoner’s habeas corpus petition unless a “circuit justice or judge” issues a “certificate of appealability.” The only effective date provision specified in Title I of the habeas corpus amendments is located in the death penalty litigation procedures section and states that those provisions shall apply to cases pending on or after enactment. The case at bar involves convictions for first degree murder for which the Petitioner was sentenced to two consecutive life terms of imprisonment. The prosecution did not seek the death penalty and the petitioner is not “subject to a capital sentence.” Accordingly, the death penalty litigation procedures do not apply. Because the statute is silent regarding the date of its applicability to pending habeas corpus proceedings in which the death penalty is not involved, courts are left to speculate whether the expression of applicability to capital eases “pending on or after enactment” is meant to exclude applicability to non-capital habeas corpus proceedings “pending on or after enactment.” I don’t think it does, but the Act gives no guidance. Moreover, the legislative history is silent on this as well as other points considered in this opinion. I don’t think a retrospective application analysis is at all helpful since I am concerned with present, not past, application. My decision denying the Petition was given before the effective date"
},
{
"docid": "23064548",
"title": "",
"text": "appeal formally filed in the district court thereafter, on January 24, 1967, may be deemed surplusage. Since an informal but timely notice of appeal was filed within thirty days and a certificate of probable cause was issued by a judge of this court, even though more than thirty days after the decision below, the appeal was proper and we have jurisdiction to consider it on the merits. To the extent that our prior decisions such as United States ex rel. Carey v. Keeper of Montgomery County Prison, supra, and Commonwealth of Pennsylvania ex rel. Ricks v. Maroney, supra, are inconsistent with the rules and decision we have now announced they are overruled. III. We turn now to the substance of the appeal. Almost nine years ago, on February 18, 1959, after a joint trial a jury found appellant guilty of first degree murder with a recommendation of life imprisonment. Sentence was imposed on February 27, 1959. Appellant did not attack his conviction and sentence until September 16, 1965, when he filed a petition for habeas corpus in the Superior Court of New Jersey claiming illegal arrest, illegal search and seizure and the use in evidence of a coerced confession. The Superior Court denied the petition in November, 1965, on the ground that the relief sought was not cognizable on habeas corpus and that the exclusive means of challenging the conviction was under the Post-Conviction Relief Rules (N.J. Rules 3:10A-1 et seq.), but that he was barred from invoking them because more than five years had elapsed since the rendition of the judgment of conviction and he had not alleged any facts showing that the delay was due to his excusable neglect. (N.J. Rule 3:10A-13.) On January 18, 1966 the Supreme Court of New Jersey by order granted appellant’s motion for leave to proceed as an indigent and at the same time ordered his appeal dismissed “for want of merit”. The district court denied the present petition for a writ of habeas corpus on the ground that appellant had failed to exhaust the remedies available to him in the courts of"
},
{
"docid": "21924243",
"title": "",
"text": "PER CURIAM. This is an appeal from a denial of habeas corpus by Judge William H. Webster, District Judge for the Eastern District of Missouri. Petitioner, Redus, is presently serving a 20 year sentence after pleading guilty to second degree murder in the Circuit Court of the City St. Louis on November 3, 1966. On March 17, 1970, petitioner moved to have the judgment and sentence vacated in the Circuit Court of St. Louis alleging his constitutional rights had been infringed setting forth that: (1) Involuntary statements were extracted from him during questioning ; (2) Ineffective assistance of counsel; (3) His plea of guilty was involuntary since it was the product of a coerced confession. The trial court denied petitioner’s requested relief, and the Missouri Supreme Court affirmed the denial. Redus v. State (Mo.1971), 470 S.W.2d 539. Subsequently, petitioner filed a petition for writ of habeas corpus in Federal District Court which was denied by Judge Webster under date of February 29, 1972, 339 F.Supp. 571. Petitioner then sought a certificate of probable cause which the District Court denied on March 15, 1972. On April 14, 1972, we granted petitioner’s application for a certificate of probable cause. The question dispositive of this appeal is whether the record demonstrates that petitioner understandingly and voluntarily entered his plea of guilty to second degree murder on the competent advice of counsel. Even if it were assumed that petitioner’s plea was brought about by a prior coerced confession, such a plea would not be rendered invalid per se so long as when entering the guilty plea, petitioner received competent advice from counsel. McMann v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. Here, petitioner’s attorneys both sought suppression of the allegedly incriminating statements said to have been recorded by the Circuit Attorney’s office. In view of the motion’s denial and for fear that a plea of not guilty might result in the death penalty, petitioner,, upon counsel’s advice, plead guilty to 2nd degree murder — a reaction not uncommon to one harboring suspicion of the unforeseeable outcome of a trial for"
},
{
"docid": "8046272",
"title": "",
"text": "MOORE, Circuit Judge: This is an appeal from, an order denying appellant’s petition for a writ of habeas corpus, for reargument and for a certificate of probable cause without an evidentiary hearing to determine the vol-untariness of appellant’s plea of guilty of second degree murder in the Supreme Court, New York County (28 U.S.C. § 2253). On March 24, 1963, two of appellant’s relatives were found murdered in their apartment and on the same day appellant was taken into custody. He told the police that he had been in his relatives’ apartment at the time an altercation between them began and claimed that he had attempted to break it up and, in so doing, got blood on his clothes. He was later booked for homicide and shortly thereafter, signed a confession. On April 20th, appellant was indicted in New York County, New York, for murder in the first degree and two attorneys were assigned to represent him. On that date he pleaded not guilty. On July 22nd, appellant withdrew his plea of not guilty to first degree murder and entered a plea of guilty to murder in \"the second degree under the first count of the indictment to cover both counts of the two-count indictment. He was convicted on that plea and was sentenced on October 9, 1963, to a term of 30 years to life. A subsequent motion to suppress the confession was treated as an application for a writ of error comm nobis and was denied without a hearing on July 27, 1964, by the Supreme Court, New York County. The Appellate Division affirmed without opinion. People v. Richardson, 23 A.D.2d 969, 260 N.Y.S.2d 586 (1st Dep’t 1965). Leave to appeal to the New York Court of Appeals was denied on June 8, 1965. State court remedies have been exhausted. Appellant presented a petition to the district court in which he alleged in substance that his plea of guilty to a reduced charge in the State court was invalid because it was induced by the existence or threatened use of an allegedly coerced confession. Accompanying his brief to"
},
{
"docid": "23064578",
"title": "",
"text": "United States district court dismissing a petition for writ of habeas corpus, where the detention complained of arises out of process issued by a state court, may not be taken to the court of appeals for review (1) unless notice of appeal is filed within thirty days after the entry of such order, 28 U.S.C. § 2107, and (2) unless the judge who rendered the order or a circuit justice or judge issues a certificate of probable cause, or at least unless the issuance of such certificate is applied for, within the thirty-day period, 28 U.S.C. § 2253. Following the analogy of the Matton case, supra [Matton Steamboat Co., Inc. v. Murphy, 319 U.S. 412, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943)], if such application is made to the district judge and by him denied, the case cannot be got before the court of appeals for review unless within the thirty-day period another application for the issuance of a certificate is presented to a circuit judge or the circuit justice, or * * * to the court of appeals itself”. The holding in Farrell was adhered to by the First Circuit in two cases in 1964 — Landry v. Commonwealth of Massachusetts, 336 F.2d 189, 190, and Zimmer v. Langlois, 331 F.2d 424. In Landry, the appellant had filed in the district court timely notice of appeal and a motion for leave to proceed in forma pauperis which that court granted. The appeal was dismissed for lack of jurisdiction on the ground that the appellant had not sought a certificate of probable cause for his appeal “and the time has now run for such application under the decision of this court in Ex parte Farrell * * * ” 336 F.2d 190. In Zimmer where the district court had denied a petition for a writ of habeas corpus on February 24, 1964 and an application for a certificate of probable cause on March 12, 1964, the court of appeals denied an application made to it on April 4, 1964 for a certificate of probable cause on the ground that it"
},
{
"docid": "1226104",
"title": "",
"text": "February 26 in a short order which quoted the Michigan Supreme Court’s order of March 25, 1971 that “no sufficient justification appears therefor”. July 25, 1974 Petitioner filed a third habeas petition in federal court, this time in the Western District of Michigan because he was a resident at the Michigan Branch Prison in Marquette, Michigan. He alleged only ineffective assistance of counsel regarding appeal. Judge Noel Fox denied the petition on January 16, 1976 after a review of the full record which had been filed with him. A request for a certificate of probable cause to appeal to the Sixth Circuit Court of Appeals was denied on February 13. June 18, 1979 Petitioner again filed a request for all court records and transcripts at public expense in Recorder’s Court. On July 20, 1979 petitioner was finally sent (apparently for the first time) the Recorder’s Court file and transcript of his case. (See discussion in Part III(B), infra.) June 2, 1980 Petitioner filed the petition for habeas corpus now before me, his fourth federal habeas petition. B. The main focus of petitioner’s argument is on the events of May 18, 1964 when he and his trial counsel appeared for trial in Recorder’s Court. Counsel began the proceeding by indicating that petitioner elected to waive his right to a jury trial and after discussion with counsel desired to enter a guilty plea to the open charge of murder with the trial judge to take testimony on the degree of murder. The trial judge then discussed the matter with petitioner, who stated he had discussed the jury trial waiver with counsel, was signing the written jury trial waiver freely and voluntarily and had been made no promises in return for his plea. After engaging in a similar colloquy with co-defendant Hardy, who entered the same plea, the trial judge heard testimony from various police officers who attended the scene of the killing or took statements from either defendant, the deceased’s brother and both petitioner and co-defendant Hardy. At the beginning of his testimony petitioner stated he had discussed his guilty plea with"
},
{
"docid": "13526563",
"title": "",
"text": "the charge and the trial court sentenced him to an enhanced term of life imprisonment. On March 19, 1973, Johnson filed notice of appeal to the Texas Court of Criminal Appeals. On the advice of counsel this notice was withdrawn on June 22,1973. In consequence, no appeal has ever been perfected. Between 1975 and 1980 Johnson, in forma pauperis, filed four applications for a writ of habeas corpus with the Texas Court of Criminal Appeals. That court denied all four applications without written order. After exhaustion of state remedies Johnson filed a writ of habeas corpus in the United States District Court for the Southern District of Texas on October 15, 1980. The United States Magistrate recommended the petition be dismissed for failure to state a claim upon which federal habeas corpus relief could be granted. The district court adopted the magistrate’s recommendation and ordered the petition dismissed. Johnson then filed a notice of appeal to this court and requested that the district court grant a certificate of probable cause. The district court adopted the magistrate’s recommendation that the certificate be denied. Because we believed that Johnson’s petition raised colorable issues of constitutional violations we granted his application for a certificate of probable cause. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). II. THE INDICTMENT Johnson’s first contention is that there was a fatal variance between the facts alleged in the indictment and the proof adduced at trial. Specifically, he states that-the indictment alleged that, with malice aforethought, he murdered “Carol Ann Venters” when the proof at trial showed that the victim was really named “Carlyn Ann Venters.” We believe this argument to be without merit. When a defendant pleads nolo contendere he waives all non-jurisdictional defects in the proceedings against him. Williamson v. Alabama, 441 F.2d 549 (5th Cir.1971); Williams v. Wainwright, 604 F.2d 404 (5th Cir.1979). The misspelling of a victim’s name in an indictment charging murder is unquestionably a non-jurisdictional defect. In consequence, Johnson’s plea of nolo contendere is a functional bar to this argument’s success. Moreover, because Johnson did not"
},
{
"docid": "11865710",
"title": "",
"text": "LAY, Circuit Judge. Appellant appeals from the district court's denial of his petition for a writ of habeas corpus. On April 21, 1964, appellant pleaded guilty in the presence of his counsel to second degree murder of his wife, Melba Louise Roach, in Jasper County, Iowa. He was sentenced to the Iowa Penitentiary for sixty years imprisonment. Thereafter, on March 12, 1965, he petitioned for a writ of habeas corpus. This was denied after a hearing in Lee County District Court on September 8, 1965. The denal of his petition was affirmed on February 7, 1967. Roach v. Bennett, Iowa, 148 N.W.2d 488. Appellant then filed his petition in the federal district court seeking further relief. The federal district court, the Honorable Roy E. Stephenson, denied his petition without further hearing. This court granted probable cause for appeal. Appellant has sought appointment of counsel both in the state and federal courts throughout all collateral proceedings. This at all times has been denied. He has appeared pro se throughout these proceedings. Among appellant’s many contentions upon appeal he includes: (a) That he was held at the scene of the crime for three hours and forced to submit to questioning concerning said offense. (b) That he was denied the right to call, consult or have appointed an attorney on the date of his arrest and was held incommunicado for eight days and was refused the right to ad vice or appointment of counsel and was refused correspondence with members of his family. (c) That he was released from the Mental Health Hospital as unimproved and not cured and that he thereupon entered an unintelligent plea of guilty before a different district judge. (d) That no hearing was ever had to determine his sanity. The State of Iowa contends that appellant has had a full hearing, and as set forth by the Supreme Court of Iowa that there was no proferred evidence in the habeas corpus hearing which would indicate his plea to the crime of second degree murder was coerced or involuntarily entered. The opinion of the Supreme Court of Iowa reads:"
},
{
"docid": "14083757",
"title": "",
"text": "Opinion by Judge CANBY; Concurrence by Judge GOULD. CANBY, Circuit Judge: Petitioner Thomas James Welch, a prisoner of the State of California, appeals from the federal district court’s dismissal of his petition for a writ of habeas corpus. The district court determined that Welch had failed to satisfy the one-year statute of limitations for a state prisoner filing a federal habeas petition, see 28 U.S.C. § 2244(d)(1), and therefore dismissed the petition as untimely. We conclude that the period of limitations was tolled to an extent that rendered Welch’s petition timely. We accordingly reverse. Background. Welch is a California state prisoner serving a life sentence with the possibility of parole. He pled guilty to two counts of attempted murder, and his conviction became final on December 17, 1993. On January 12, 1994, Welch filed a petition for writ of habeas corpus in the California Superior Court, attacking the validity of his guilty plea. The court denied the petition on March 17, 1994. Over four years later, on August 22,1998, Welch submitted an original petition for writ of habeas corpus to the California Supreme Court. The petition raised claims that were different from the claim he raised in the Superior Court. The California Supreme Court denied this petition without comment or citation on February 24,1999. Welch then filed a petition for writ of habeas corpus with the federal district court on March 25,1999. The State filed a motion to dismiss, asserting that the petition was barred by the one-year limitation period in 28 U.S.C. § 2244(d)(1). The district court granted the motion. It reasoned that Welch had only one year after the passage of § 2244(d)(1) to file his petition, and that year expired on April 24, 1997; Welch’s 1999 federal petition was therefore untimely. The district court subsequently granted a certificate of ap-pealability, and this appeal followed. Discussion Effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, (“AEDPA”). AEDPA imposed, for the first time, a one-year statute of limitations for state prisoners filing federal petitions for habeas"
}
]
|
226397 | "produce ""[e]mails discussing potential Commission members"" pursuant to the Court's preliminary injunction. Order, ECF No. 64, at 3. Presently Defendants move for a stay of their obligation to produce those emails, while briefing of other remaining issues continues. Upon consideration of the briefing, the relevant legal authorities, and the record as a whole, the Court GRANTS Defendants' [68] Renewed Motion for a Partial Stay Pending Appeal. The Court shall continue to STAY Defendants' obligation to produce the emails discussing potential Commission members pending resolution of Defendants' appeal. I. BACKGROUND The Court's prior decisions describe the short life of the Presidential Advisory Commission on Election Integrity and most of the pertinent proceedings in this litigation. See REDACTED Dunlap v. Presidential Advisory Comm'n on Election Integrity , 319 F. Supp. 3d 70 (D.D.C. 2018) ( Dunlap II ). To briefly summarize, the Court issued a preliminary injunction compelling Defendants to produce certain documents to Plaintiff, who at that time was a member of the Commission and had not received information to which he was entitled. After the Commission was disbanded, the Court denied Defendants' request for reconsideration of the preliminary injunction. The Court also found that Defendants were not entitled to a stay of the Court's preliminary injunction pending appeal. Defendants then complied in part with the Court's preliminary injunction compelling production of certain documents. A number of sticking points remained. Defendants raised" | [
{
"docid": "19494496",
"title": "",
"text": "COLLEEN KOLLAR-KOTELLY, United States District Judge This case concerns the rights of a specific member of a specific presidential advisory commission governed by the Federal Advisory Committee Act (\"FACA\") to receive documents that he has requested in order to facilitate his full participation. Since Cummock v. Gore , it has been clear in this circuit that \"committee membership [under FACA] bestows both rights and obligations beyond those given to members of the general public.\" 180 F.3d 282, 292 (D.C. Cir. 1999). Particularly with respect to accessing information about the commission's work, a commission member has \"an even greater right than a member of the public, because, as a Commission member, [he] is entitled to fully participate in its deliberations.\" Id. Plaintiff Matthew Dunlap, Secretary of State of Maine, alleges that he has not received documents associated with the Defendant Presidential Advisory Commission on Election Integrity (the \"Commission\") that are necessary to inform his efforts to fully participate as a Commission member. In his Motion for a Preliminary Injunction, ECF No. 7 (\"Motion\"), he seeks, inter alia , an order that the Commission and co-defendant officials and entities \"promptly ... produce records requested by Secretary Dunlap,\" and that Defendants \"produce ... all future documents made available to or prepared for or by the Commission promptly and no later than two weeks in advance of any future Commission meeting.\" Pl.'s Mot. for Prelim. Inj., ECF No. 7, at 1. The urgency of Plaintiff's Motion, filed on November 16, 2017, was predicated on the belief that the Commission would convene another meeting soon, possibly in December. See Decl. of Kris W. Kobach, ECF No. 30-2, Ex. 2 ¶ 9 (\"Kobach Decl.\") (\"It is estimated the Commission will meet five times at a frequency of approximately 30-60 days between meetings, subject to members' schedules and other considerations.\"); Pl.'s Mem. of Law in Supp. of Pl.'s Mot. for Prelim. Inj., ECF No. 7-13, at 19-20 (discussing same, and noting last meeting was September 12, 2017). Defendants' counsel subsequently represented that no meeting would be held in December, which permitted this Court, with the parties' consent,"
}
]
| [
{
"docid": "9241896",
"title": "",
"text": "of the commission was spending more time responding to litigation than doing an investigation,\" Mr. Kobach said. \"Think of it as an option play; a decision was made in the middle of the day to pass the ball. The Department of Homeland Security is going to be able to move faster and more efficiently than a presidential advisory commission.\" TRO Mem. at 5 (quoting Michael Tackett and Michael Wines, Trump Disbands Commission on Voter Fraud , N.Y. Times (Jan. 3, 3018), https://www.nytimes.com/2018/01/03/us/politics/trump-voter-fraud-commission.html). At least from his perspective, Mr. Kobach evidently would serve as \"an informal adviser to homeland security,\" id. (quoting Tackett and Wines, supra ) (internal quotation marks omitted), who would be \"working closely with the White House and DHS to ensure the investigations continue,\" id. at 5-6 (quoting John Binder, Exclusive-Kris Kobach: Voter Fraud Commission 'Being Handed off' to DHS, Will No Longer Be 'Stonewalled' by Dems , Breitbart (Jan. 3, 2018), http://www.breitbart.com/big-government/2018/01/03/exclusive-kris-kobach-voter-fraud-commission-being-handed-off-to-dhs-will-no-longer-be-stonewalled-by-dems/) (internal quotation marks omitted). Confirming that the issue would remain on the agenda, President Trump tweeted, \"Push hard for Voter Identification!\" on January 4, 2018. MTR Opp'n at 10 n.18 (quoting Donald J. Trump (@realDonaldTrump), Twitter (Jan. 4, 2018) ) (internal quotation marks omitted). Nowhere did Defendants indicate that they would comply with the Court's December 22, 2017, Order compelling them to provide Plaintiff with certain documents. Defendants' correspondence with Plaintiff indicated that they would instead seek reconsideration of the Court's Order in light of the Commission's termination. TRO Mem. Ex. 2, ECF No. 35-3, at 1-2. Fearing that his final opportunity to participate in the Commission was slipping away, Plaintiff applied for a temporary restraining order (\"TRO\") seeking extensive relief, including a variety of orders regarding post-dissolution management of Commission documents and an order compelling Defendants' compliance with the Court's preliminary injunction. See Pl.'s Appl. for a TRO, ECF No. 35, at 1-2. In parallel, Defendants sought reconsideration of the Court's preliminary injunction, citing the \"changed circumstances\" of the Commission's termination without \"issu[ing] a report or mak[ing] any recommendations before its dissolution.\" MTR Mem. at 1. In an effort to handle the motion practice"
},
{
"docid": "9241891",
"title": "",
"text": "COLLEEN KOLLAR-KOTELLY, United States District Judge On December 22, 2017, the Court held that Plaintiff Matthew Dunlap was entitled to certain documents to vindicate his right, as an appointed commissioner, to fully participate in the proceedings of the Defendant Presidential Advisory Commission on Election Integrity (the \"Commission\"). See Dunlap v. Presidential Advisory Comm'n on Election Integrity , 286 F.Supp.3d 96 (D.D.C. 2017). The Commission never complied with the Court's Order. Nor did any co-Defendant officials or entities indicate an intention to do so. An Executive Order issued on January 3, 2018, terminated the Commission and triggered a series of motions seeking to clarify the path forward in this case. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, including the Court's [32] Order and [33] Memorandum Opinion of December 22, 2017, which the Court expressly incorporates herein, the Court DENIES Plaintiff's [35] Application for a Temporary Restraining Order (\"TRO Application\"), DENIES Defendants' [39] Motion to Reconsider This Court's December 22, 2017, Order (\"Motion to Reconsider\"), and, in an exercise of the Court's discretion, DENIES Plaintiff's [48] Motion for Leave to Serve a Preservation Subpoena (\"Subpoena Motion\"). Defendants have indicated that if the Court were to deny their Motion to Reconsider, they would consider seeking appellate review rather than producing the documents at issue. MTR Mem. at 12-13. They accordingly requested a stay of any adverse decision to give them time to evaluate. As the Court shall discuss in this Opinion, Defendants are not entitled to a stay either during their determination of whether to appeal or during any appeal, subject to any finding that the Court lacks jurisdiction over aspects of the case under consideration by the United States Court of Appeals for the District of Columbia Circuit (\"D.C. Circuit\" or \"Court of Appeals\"). Plaintiff is entitled under Cummock v. Gore , 180 F.3d 282 (D.C. Cir. 1999), to the preliminary relief guaranteed by the Court's [32] Order and [33] Memorandum Opinion of December 22, 2017, as further clarified in this Memorandum Opinion, but not to anything more at this time. Defendants must produce"
},
{
"docid": "9241892",
"title": "",
"text": "of the Court's discretion, DENIES Plaintiff's [48] Motion for Leave to Serve a Preservation Subpoena (\"Subpoena Motion\"). Defendants have indicated that if the Court were to deny their Motion to Reconsider, they would consider seeking appellate review rather than producing the documents at issue. MTR Mem. at 12-13. They accordingly requested a stay of any adverse decision to give them time to evaluate. As the Court shall discuss in this Opinion, Defendants are not entitled to a stay either during their determination of whether to appeal or during any appeal, subject to any finding that the Court lacks jurisdiction over aspects of the case under consideration by the United States Court of Appeals for the District of Columbia Circuit (\"D.C. Circuit\" or \"Court of Appeals\"). Plaintiff is entitled under Cummock v. Gore , 180 F.3d 282 (D.C. Cir. 1999), to the preliminary relief guaranteed by the Court's [32] Order and [33] Memorandum Opinion of December 22, 2017, as further clarified in this Memorandum Opinion, but not to anything more at this time. Defendants must produce the relevant documents by no later than JULY 18, 2018 . I. BACKGROUND The Court extensively discussed the statutory and factual background of the Commission in its decision as to Plaintiff's [7] Motion for a Preliminary Injunction. See Dunlap , 286 F.Supp.3d at 99-104. The Court shall only briefly recapitulate here the Commission's short life and Plaintiff's role therein, with emphasis on the factual and procedural developments that have occurred since the Court's decision. President Donald J. Trump launched the Commission on May 11, 2017, with a mandate to \"study the registration and voting processes used in Federal elections.\" Executive Order No. 13,799 § 3, 82 Fed. Reg. 22,389, 22,389 (May 11, 2017) (\"May 11, 2017 Exec. Order\"). Plaintiff Matthew Dunlap, Secretary of State of the State of Maine, was among the appointed commissioners. Over the following summer and early fall, the Commission held several meetings regarding election issues and collected some state voter data. Yet, despite his eagerness to contribute to the Commission's work, Plaintiff had reason to believe that Defendants and perhaps other"
},
{
"docid": "9241991",
"title": "",
"text": "Court pending its resolution. See Loumiet v. United States , Civil Action No. 12-1130 (CKK), 315 F.Supp.3d 349, 351-52, 2018 WL 2694448, at *2 (D.D.C. June 5, 2018) (Kollar-Kotelly, J.) (citing Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam); United States v. DeFries , 129 F.3d 1293, 1302 (D.C. Cir. 1997) ) (recognizing that appeal triggers stay as to claims on appeal). An answer or motion to dismiss may remain within the boundaries of proceedings that this Court still could facilitate during appeal of its preliminary injunction. And, in any event, the welter of requests that the Court decides today renders it unclear how the parties will choose to proceed. Defendants have not made out the \"clear case of hardship or inequity\" that would be required to warrant a stay. Landis , 299 U.S. at 255, 57 S.Ct. 163. IV. CONCLUSION For all of the foregoing reasons, the Court hereby DENIES Plaintiff's [35] Application for a Temporary Restraining Order; DENIES Defendants' [39] Motion to Reconsider This Court's December 22, 2017, Order, including Defendants' request for a stay of this decision pending their determination of whether to appeal, as well as during any appeal, subject to any finding that the Court lacks jurisdiction over aspects of the case under consideration by the D.C. Circuit; and, in an exercise of the Court's discretion, DENIES Plaintiff's [48] Motion for Leave to Serve a Preservation Subpoena. Plaintiff is entitled under Cummock v. Gore , 180 F.3d 282, to the preliminary relief guaranteed by the Court's December 22, 2017, Order, as further clarified in this Memorandum Opinion, but not to anything more at this time. Defendants must produce the relevant documents by no later than JULY 18, 2018 . The parties shall submit a Joint Status Report by no later than JULY 27, 2018, indicating how they propose to proceed on the merits. An appropriate Order accompanies this Memorandum Opinion. As of the filing of the [1] Complaint, Defendants consisted of the Commission; Michael R. Pence, in his official capacity as Chair of"
},
{
"docid": "10144422",
"title": "",
"text": "Opinion concurring-in part and concurring in the judgment filed by Senior Circuit Judge Williams. . KAREN LECRAFT HENDERSON, Circuit Judge: By executive, order issued in May 2017, the President established the Presidential Advisory Commission on Election Integrity (Commission). Exec. Order No. 13799, 82 Fed. Reg. 22389 (May 11, 2017). The Commission is a temporary and “solely advisory” body charged with studying the integrity of federal elections. Id. § 3. In keeping with that objective but lacking any authority to demand information, the Commission “requested” that each state and the District of Columbia provide the Commission with • certain “publicly-available voter roll data.” Joint Appendix (JA) 51. The Electronic Privacy Information Center (EPIC)—a nonprofit organization whose stated,,mission is “to focus.public attention on emerging privacy and civil liberties issues”—sued the Commission and other entities and officials, claiming violations of the Administrative Procedure Act (APA), 5 U.S.C. § 706. PL’s Second Am. Compl. (Compl.), Dkt. No. 33 at 2, 12-13. EPIC sought a preliminary injunction to prohibit the defendants from collecting voter data unless and until they.complete a privacy impact assessment as allegedly required by the E-Government Act of 2002, Pub. L. No. 107-347, § 208(b), 116 Stat. 2899, 2921-22 (Dec. 17, 2002). The district court denied preliminary injunctive relief. EPIC v. Presidential Advisory Comm’n on Election Integrity, 266 F.Supp.3d 297, 2017 WL 3141907 (D.D.C. July 24, 2017). The court concluded (inter alia) that ■EPIC has standing, id. at ⅜6-*10, 266 F.Supp.3d at 308-15, but is unlikely to succeed on the merits because under the APA neither the Commission nor any other defendant constitutes an “agency” that the court can enjoin to produce an assessment, id. at *11-*13, 266 F.Supp.3d at 315-19. On an interlocutory basis, EPIC appeals the denial of a preliminary injunction. See 28 U.S.C. § 1292(a)(1). We agree with the district court that EPIC is unlikely to succeed on its APA claims. But we reach that conclusion for a different reason from the one the district court identified. See Parsi v. Daioleslam, 778 F.3d 116, 126 (D.C. Cir. 2015) (“Ordinarily, a court of appeals can affirm a district court judgment"
},
{
"docid": "9241989",
"title": "",
"text": "\"the balance of equities[ ] cut[s] in favor of the defendants\"). And in any event, Defendants would need to succeed on more than this one prong. Defendants offer no specific analysis of the public interest factor either. See id. The public interest seems to lie in the efficient resolution of litigation concerning the now-defunct Commission. By facilitating the provision of the documents at issue, today's decision moves the Court and parties one step closer to identifying what remains to resolve via this litigation. In the end, the Court's decision to issue a stay is a matter for the Court's inherent discretion, which can be triggered only in exceptional circumstances. See Air Line Pilots Ass'n v. Miller , 523 U.S. 866, 879 n.6, 118 S.Ct. 1761, 140 L.Ed.2d 1070 (1998) (citing Landis v. N. Am. Co. , 299 U.S. 248, 254-55, 57 S.Ct. 163, 81 L.Ed. 153 (1936) ); Clinton v. Jones , 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (\"The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket.\"); Landis , 299 U.S. at 255, 57 S.Ct. 163 (requiring movant to prove \"a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one [sic] else\"). The Court shall not permit Defendants to have what amounts to a Trojan Horse for re-litigating the Court's December 22, 2017, preliminary injunction and the Court's decision herein to deny reconsideration of it. The Court granted Plaintiff a preliminary injunction-which Defendants did not appeal, whether before or after the Commission's termination-and Plaintiff is entitled now to the benefits of it. If Defendants appeal this decision, then they may seek expedited relief from the Court of Appeals. See Fed. R. App. P. 8(a)(1)(A), (2)(A)(ii) ; see also Fed. R. Civ. P. 62(g) (recognizing that appellate court may issue stay pending appeal). Moreover, depending on the scope of that appeal, it may trigger an automatic stay of certain proceedings in this"
},
{
"docid": "4529626",
"title": "",
"text": "when an opposing party is deprived of the opportunity to make such a challenge. Plaintiffs do not dispute that if the motion for reconsideration is denied, YCWA has a right to receive and respond to the requested discovery prior to resolution of the pending motion for a preliminary injunction. Plaintiffs further concede that if the Cavallo declaration is struck, the pending motion does not make a showing entitling plaintiffs to the preliminary injunction they seek. In light of the parties’ positions, the court grants YCWA’s motion to strike references to the Cavallo testimony, and therefore denies plaintiffs’ motion for a preliminary injunction without prejudice. Plaintiffs may refile this motion after YCWA has had an opportunity to review the relevant documents. IV. CONCLUSION For the reasons stated above, the court orders as follows: 1. Plaintiffs’ motion for reconsideration (Doc. No. 236) of the magistrate’s order of January 26, 2009 (Doc. No. 234) is DENIED. 2. Defendant YCWA’s motion to strike (Doc. No. 218-8) is GRANTED. 3. Plaintiffs’ motion for a preliminary injunction (Doe. No. 197) is DENIED WITHOUT PREJUDICE. 4. Plaintiffs SHALL comply with the magistrate’s order compelling discovery by no later than May 20, 2009. If plaintiffs believe that, consistent with this order, some of the emails exchanged between counsel and Cavallo concerning topics for anticipated expert testimony are protected, plaintiffs’ response MAY assert such privilege. 5. Plaintiffs SHALL NOT file a renewed motion seeking a preliminary injunction UNTIL either they have produced the documents sought by YCWA’s motion to compel or all disputes concerning such discovery have been resolved. 6. If plaintiffs file a renewed motion, this motion SHALL be noticed for hearing in accordance with the ordinary requirements of Local Rule 78-230(b). IT IS SO ORDERED. . This court is aware of only a few cases directly addressing this issue, which reached contradictory results and provide only limited discussion. Compare Plymovent Corp. v. Air Tech. Solutions, Inc., 243 F.R.D. 139, 144 (D.N.J.2007) (presentation at a preliminary injunction hearing of a document prepared by an expert renders that expert a \"testifying expert” within the purposes of Rule 26(b)(4)); with"
},
{
"docid": "9241972",
"title": "",
"text": "R. Civ. P. 26(c)(1). Whether the Court contemplates a document preservation subpoena or, in the alternative, a document production subpoena, the reasonableness inquiry is largely the same, though the Court shall differentiate as needed. First, the preliminary injunction entered on December 22, 2017, militates against a further order compelling document preservation or production. The Court's enforcement of this injunction in short order shall ensure that the documents to which Plaintiff is entitled are furnished by Defendants. Plaintiff's sprawling list of nineteen specific document categories likely would render compliance with this subpoena rather difficult, even assuming Mr. Kobach has diligently maintained the documents at issue. See List of Documents to Be Preserved and/or Produced Pursuant to Subpoena, ECF No. 48-6, at 3-5. And it is not clear that Plaintiff even would be entitled to all of the documents that he seeks to subpoena. For example, he may not be entitled to all of the \"Documents concerning ... how Documents should be treated upon the Commission's closure or termination,\" id. at 5, if some of those documents concern the President's or Vice President's document management obligations under the PRA. While Plaintiff wants this subpoena to prevent document destruction, it is not clear that he has anything substantial to fear. Plaintiff evidently presumes that some Commission documents reside with Mr. Kobach, or others, that have not been collected by the President's or Vice President's records management staff. See Subpoena Mem. at 6 (\"[T]here is a strong likelihood-undisputed by DOJ-that the White House is not in possession of all documents to which the Court's December 22 Decision applies, or which might otherwise be relevant to this litigation.\"). But see Subpoena Opp'n at 2 (describing Defendants' September 2017 records collection efforts). Plaintiff would have to believe that Mr. Kobach did not comply with PRA training in July 2017 in which the commissioners were \"instructed to copy the Commission's former Designated Federal Officer [Andrew Kossack], or the Commission's email account, on all communications.\" Subpoena Opp'n at 2. Plaintiff's motion further assumes that Mr. Kobach will not comply with litigation holds in this and related litigation. See"
},
{
"docid": "9241925",
"title": "",
"text": "that was not shared with him before it became the final work product of the Commission. In turn, Plaintiff may respond in public, if he chooses, to any such work product in what may be deemed for posterity as an informal oral or written version of any alternative findings, or an informal concurring or dissenting report. The last reason for denying reconsideration is a matter of respect for the tribunal. Shutting down the Commission due to \"endless legal battles,\" Statement, The White House, supra , and as part of an \"option play,\" TRO Mem. at 5 (quoting Tackett and Wines, supra ) (internal quotation marks omitted), suggests an effort to evade this Court's December 22, 2017, Order. Were it not so, the Court would have expected Defendants to pursue an interlocutory appeal, rather than termination of the Commission twelve days after this Court's preliminary injunction compelling a document production. They shall not be permitted to further postpone compliance with a preliminary injunction. As in Abraham discussed above, termination of the Commission should not change the ability of Defendants to comply. See Abraham , 223 F.Supp.2d at 184. Even before the Court's December 22, 2017, decision, Defendants had already reviewed and organized a number of Commission documents pursuant to court-ordered production of a Vaughn -type index in a related case before this Court involving the Commission. Dunlap , 286 F.Supp.3d at 110 (citing Vaughn -type index in Lawyers' Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity , Civil Action No. 17-1354-CKK). Moreover, Defendants already offered to make available some of those documents for Plaintiff's inspection. Mem. in Opp'n to Pl.'s Mot. for a Prelim. Inj. Ex. G, ECF No. 30-7, at 2 (extending offer to inspect certain documents related to September 12, 2017, meeting). Defendants do not assert that they are no longer able to produce those documents or that they are unable to produce documents post-dating the Vaughn -type index. As discussed above, the White House records custodian's declaration suggests that they are all preserved. Defendants have not persuaded the Court that justice requires reconsideration."
},
{
"docid": "9241927",
"title": "",
"text": "Accordingly, Defendants must produce the documents discussed in the Court's December 22, 2017, decision through the time of the Commission's termination. See Dunlap , 286 F.Supp.3d at 108 (giving guidance as to types of documents to which Plaintiff is entitled). For the avoidance of doubt, the Court makes clear that such production must include relevant documents listed on the Vaughn -type index as well as those generated or received afterwards. The covered time period includes relevant documents generated or received between the Court's December 22, 2017, decision and the Commission's termination. The Court has reason to believe that at least some such documents exist. See TRO Mem. at 8 n.11 (citing Allison Kite, Kobach Voter Integrity Commission, Stalled by Lawsuits, Will Meet in January , Topeka Capital-Journal (Dec. 29, 2017), http://cjonline.com/news/state-government/2017-12-29/kobach-voter-integrity-commissions-talled-lawsuits-will-meet). Plaintiff ultimately should receive relevant documents that any of the former commissioners generated or received. This includes material that commissioners solicited and subsequently received from third parties. See, e.g. , TRO Ancillary Issue Opp'n at 10 n.1 (attributing certain statistics to one such third-party submission, albeit allegedly supplied at one or more Commission meetings). Defendants are not obligated, however, to disclose any materials that were generated before the termination of the Commission but which exclusively concern document management after its termination. See MTR Mem. at 12. B. Application for Temporary Restraining Order & Ancillary Request In his TRO Application, Plaintiff seeks not only a further order compelling the relief granted by the Court's December 22, 2017, preliminary injunction, but also additional relief stemming directly from the Committee's dissolution. Any necessity for a TRO is much diminished, however, by the Court's denial today of Defendants' Motion to Reconsider that preliminary injunction. Plaintiff's fears, for example, that Defendants might publish a report or findings absent Court intervention simply have not materialized. None of the briefing of motions decided today-which fully ripened on February 21, 2018-identified any verifiable example of such report or findings since the Commission's January 3, 2018, termination. Nor has any party brought such publication to the Court's attention during the pendency of the motions decided today. Plaintiff's fears"
},
{
"docid": "9241914",
"title": "",
"text": "standard, applies in these circumstances). Plaintiff does not object. The Court shall now apply the Rule 54(b) standard to Defendants' motion. 2. Justice Does Not Require Reconsideration Because Defendants fail to articulate, and consequently, address, the threshold Rule 54(b) consideration of whether \"justice requires\" reconsideration, they forge ahead with a fresh analysis of whether the Court should grant a preliminary injunction under the standard four-factor test that this Court previously applied. See Dunlap , 286 F.Supp.3d at 104 (citing Aamer , 742 F.3d at 1038 ). But they are not entitled to that second bite at the apple. For the reasons that follow, the Court finds that justice does not require reconsideration of its decision to grant partial preliminary relief to Plaintiff. The dissolution of the Commission on January 3, 2018, is a relevant factual development, in the basic sense that a commission existed when the Court issued the preliminary injunction and now does not exist. But that change is not \"controlling or significant\" for purposes of compelling reconsideration of whether Plaintiff satisfies the standards for preliminary relief. See McLaughlin , 864 F.Supp.2d at 141 (contemplating reconsideration in the event of \"a controlling or significant change\" of fact (internal quotation marks omitted) ). The Commission's termination does not affect the premise of the Court's December 22, 2017, opinion: \"Plaintiff ha[d] a right, as a commissioner, to 'fully participate' in the proceedings of the Commission,\" and his ability to do so was stunted by Defendants' failure to provide him with documents during the life of the Commission. Dunlap , 286 F.Supp.3d at 106 (\"[Plaintiff] has a right to access documents that the Commission is considering relying on in the course of developing its final recommendations.\"); see also Cummock , 180 F.3d at 291 (\"[FACA] must be read to confer on a committee member the right to fully participate in the work of the committee to which he or she is appointed.\"). The Court's December 22, 2017, decision affords Plaintiff access to documents described therein that were generated before the Court's Order and those that were generated afterwards through the point of"
},
{
"docid": "9241953",
"title": "",
"text": "obligations for the sake of Plaintiff's interest, which is loosely connected to the Court's own preliminary injunction. Moreover, the Court's denial of Defendants' Motion to Reconsider the preliminary injunction should vindicate the rights that Plaintiff does have regarding Commission documents; the scope of his legitimate interest in this further relief, in light of the foregoing discussion, is minimal. The public's interest in this dispute is to ensure that pertinent documents concerning the Commission's life and work survive to see the light of day. Defendants' obligations under the PRA, coupled with their representations in this case, assure the Court that the public interest will be protected. The Court is not persuaded that the public interest will be better served by issuing a TRO that the Court does not otherwise find to be justified than by the alternative: enforcing the Court's preliminary injunction with its more limited scope and ultimately resolving the remainder of this dispute on the merits. The foregoing analysis demonstrates that Plaintiff has not carried his burden to prove that he is entitled to a TRO granting him the document management relief that he requests. 2. Plaintiff's Participation in Commission Wind-Down Activities As part of his request (2), Plaintiff seeks a Court order compelling \"Defendants to permit Secretary Dunlap to fully participate, on an equal basis as any other commissioner, in all remaining Commission activities, including but not limited to the winding down of the Commission.\" Pl.'s Appl. for a TRO, ECF No. 35, at 2. Plaintiff represents the wind-down aspect as a subcomponent of any \"remaining Commission activities.\" The Commission is no more, however, and so there are no further Commission activities as such. The Court considers only Plaintiff's request specifically to participate in wind-down activities, and only insofar as any such activities can remain after dissolution of the Commission. Setting aside decisions about documents and data, which the Court elsewhere considers, it is not clear what kind of wind-down activities remain (or remained at the time Plaintiff's TRO Application was filed). The Court shall not specifically fault Plaintiff where details of any such wind-down may reside only"
},
{
"docid": "9241979",
"title": "",
"text": "the documents at issue. Today the Court has determined that dissolution of the Commission does not entitle Defendants to reconsideration of the preliminary injunction. It follows from those two decisions that the Court views Defendants as unlikely to succeed on appeal. It is true that a \"serious legal question\" could help tip the scales on this factor when the likelihood of success on appeal is low. See Al-Anazi , 370 F.Supp.2d at 193 & n.5. But that option is available only where the movants would otherwise prevail on the harm prong, see id. , which the Court shall find below is not the case here. See also In re Special Proceedings , 840 F.Supp.2d 370, 372 (D.D.C. 2012) (citing, e.g., Holiday Tours, Inc. , 559 F.2d at 844 ) (finding that \"serious legal question\" standard replaces likelihood of success on the merits \"only when the other three factors tip sharply in the movant's favor\"). The fact that the likelihood of success and irreparable harm prongs are subject to a sliding scale, see Cuomo , 772 F.2d at 974, does not, of course, mean that the movants can avoid the conclusion that they failed to adequately prove both of them. Defendants argue that enforcement of the preliminary injunction before they could seek appellate review would work irreparable damage, MTR Mem. at 13, but their reasoning appears to apply, at most, to only a subset of the documents at issue. Of note, Defendants say nothing about any privileged, classified, or otherwise sensitive documents in the portion of their Motion to Reconsider requesting a stay pending appeal. See supra note 6 (citing Cummock , 180 F.3d at 293 (Rogers, J., concurring) ). Rather, Defendants elsewhere point to the \"sensitive and privileged information\" contained in \"forward-looking documents related to the disposition of data collected by a now-dissolved Commission.\" MTR Mem. at 12 (asserting that Plaintiff's \"request would insert a non-federal employee into sensitive internal government discussions about the proper disposition of records in compliance with federal law, and may also touch upon internal security practices and litigation-related obligations\"); see also MTR Reply at 9."
},
{
"docid": "9241894",
"title": "",
"text": "commissioners were inhibiting his ability to fully do so. Plaintiff tried to obtain certain documents from the Commission to vindicate his rights, and when he was unsuccessful, he brought this lawsuit against the Commission, Vice President Michael R. Pence in his capacity as Chair of the Commission, Kris W. Kobach in his capacity as Vice Chair, the Executive Office of the President (\"EOP\"), and the Office of the Vice President (\"OVP\"), among others. Unofficial information shortly thereafter suggested that the Commission might hold a meeting without inviting Plaintiff's involvement in the planning. This precipitated his efforts to obtain preliminary relief, which this Court granted in significant part on December 22, 2017. The Court found that Plaintiff was likely to succeed in obtaining certain relief pursuant to the Court's mandamus jurisdiction, 28 U.S.C. § 1361, and met the remaining elements for a preliminary injunction as to that relief. Defendants were required to provide Plaintiff with certain past and future documents to facilitate his meaningful participation as a commissioner. See, e.g., Dunlap , 286 F.Supp.3d at 107-08. They never did so. On January 3, 2018, Defendants abruptly notified the Court that President Trump had signed an Executive Order that terminated the Commission. Notice of Executive Order, ECF No. 34. A flurry of public statements comprised the Commission's early epitaph. That day the White House Press Secretary offered one version of the reasons for its demise: Despite substantial evidence of voter fraud, many states have refused to provide the Presidential Advisory Commission on Election Integrity with basic information relevant to its inquiry. Rather than engage in endless legal battles at taxpayer expense, today President Donald J. Trump signed an executive order to dissolve the Commission, and he has asked the Department of Homeland Security to review its initial findings and determine next courses of action. Statement, The White House, Statement by the Press Secretary on the Presidential Advisory Commission on Election Integrity (Jan. 3, 2018), ECF No. 46-1. Mr. Kobach, who had overseen much of the Commission's operations as its Vice Chair, highlighted the realpolitik: \"It got to the point where the staff"
},
{
"docid": "9241990",
"title": "",
"text": "to its power to control its own docket.\"); Landis , 299 U.S. at 255, 57 S.Ct. 163 (requiring movant to prove \"a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one [sic] else\"). The Court shall not permit Defendants to have what amounts to a Trojan Horse for re-litigating the Court's December 22, 2017, preliminary injunction and the Court's decision herein to deny reconsideration of it. The Court granted Plaintiff a preliminary injunction-which Defendants did not appeal, whether before or after the Commission's termination-and Plaintiff is entitled now to the benefits of it. If Defendants appeal this decision, then they may seek expedited relief from the Court of Appeals. See Fed. R. App. P. 8(a)(1)(A), (2)(A)(ii) ; see also Fed. R. Civ. P. 62(g) (recognizing that appellate court may issue stay pending appeal). Moreover, depending on the scope of that appeal, it may trigger an automatic stay of certain proceedings in this Court pending its resolution. See Loumiet v. United States , Civil Action No. 12-1130 (CKK), 315 F.Supp.3d 349, 351-52, 2018 WL 2694448, at *2 (D.D.C. June 5, 2018) (Kollar-Kotelly, J.) (citing Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam); United States v. DeFries , 129 F.3d 1293, 1302 (D.C. Cir. 1997) ) (recognizing that appeal triggers stay as to claims on appeal). An answer or motion to dismiss may remain within the boundaries of proceedings that this Court still could facilitate during appeal of its preliminary injunction. And, in any event, the welter of requests that the Court decides today renders it unclear how the parties will choose to proceed. Defendants have not made out the \"clear case of hardship or inequity\" that would be required to warrant a stay. Landis , 299 U.S. at 255, 57 S.Ct. 163. IV. CONCLUSION For all of the foregoing reasons, the Court hereby DENIES Plaintiff's [35] Application for a Temporary Restraining Order; DENIES Defendants' [39] Motion"
},
{
"docid": "9241956",
"title": "",
"text": "rather ambiguous. The Court supposes that the American people would be concerned more with the former Commission's documents than with any wind-down that does not in some way concern those documents. The potential caveat is decisions about who should carry the torch, as it were, of further inquiry into election integrity. If Plaintiff is any indication, the public would be interested in those decisions. But the determination of whether DHS or another agency, if any, continues to perform work that the Commission had engaged in during its existence is a decision for the President, who constituted the Commission, not for the Plaintiff. Plaintiff has not established a preliminary entitlement to participate in wind-down of the former Commission's affairs. 3. Injunction Against Dissemination or Publication of a Report or Findings Until Plaintiff Has Had an Opportunity to Respond In his request (5), Plaintiff would have the Court \"enjoin[ ] Defendants from disseminating or publishing any initial, preliminary, or final findings or report of the Commission until such time as Secretary Dunlap has been provided with all Commission documents to which he is entitled, given a meaningful opportunity to participate in deliberations that lead to the findings, and has been given a reasonable amount of time in which to draft comments, a concurrence, or dissent to the findings or report.\" Pl.'s Appl. for a TRO, ECF No. 35, at 2. Of the claims in his TRO, this one comes closest to the scenario that occurred in Cummock and was the concern of this Court in its December 22, 2017, Order. In each instance, a commission concluded without permitting a commissioner to fully participate in its proceedings along the way. But the crucial difference is that the Cummock commission had produced a final report before its doors were closed. The plaintiff commissioner had dissented from that report, but the Court of Appeals recognized a further right to amend her dissent upon receiving any information to which she was entitled but had been denied. See Cummock , 180 F.3d at 286-87, 292-93. There is no published majority report here, unlike in Cummock . And"
},
{
"docid": "9241980",
"title": "",
"text": "F.2d at 974, does not, of course, mean that the movants can avoid the conclusion that they failed to adequately prove both of them. Defendants argue that enforcement of the preliminary injunction before they could seek appellate review would work irreparable damage, MTR Mem. at 13, but their reasoning appears to apply, at most, to only a subset of the documents at issue. Of note, Defendants say nothing about any privileged, classified, or otherwise sensitive documents in the portion of their Motion to Reconsider requesting a stay pending appeal. See supra note 6 (citing Cummock , 180 F.3d at 293 (Rogers, J., concurring) ). Rather, Defendants elsewhere point to the \"sensitive and privileged information\" contained in \"forward-looking documents related to the disposition of data collected by a now-dissolved Commission.\" MTR Mem. at 12 (asserting that Plaintiff's \"request would insert a non-federal employee into sensitive internal government discussions about the proper disposition of records in compliance with federal law, and may also touch upon internal security practices and litigation-related obligations\"); see also MTR Reply at 9. But these are not the kinds of documents to which the Court found Plaintiff to be entitled in the Court's December 22, 2017, decision, nor in today's decision to deny reconsideration of it. Evidently some documents predating the Commission's termination are privileged as well. See, e.g. , TRO Ancillary Issue Opp'n at 12 n.4 (\"Some documents on the Vaughn -like index are clearly privileged (i.e. , internal discussion with counsel), but there is no indication that former Commissioners are in possession of any such documents, with the possible exception of litigation-related documents sent to Mr. Kobach in his former capacity as Vice Chair.\"). But Plaintiff appears not to seek those privileged documents. ECF No. 46-3, app. A at 12 (disclaiming Plaintiff's interest in entries on Vaughn -type index consisting of \"[l]itigation-related documents exchanged between named defendants and DOJ\"). Plaintiff is entitled only to the documents discussed in the Court's December 22, 2017, decision, which did not contemplate documents concerning post-termination records management. See Dunlap , 286 F.Supp.3d at 108. Defendants likewise should not be disturbed"
},
{
"docid": "9241893",
"title": "",
"text": "the relevant documents by no later than JULY 18, 2018 . I. BACKGROUND The Court extensively discussed the statutory and factual background of the Commission in its decision as to Plaintiff's [7] Motion for a Preliminary Injunction. See Dunlap , 286 F.Supp.3d at 99-104. The Court shall only briefly recapitulate here the Commission's short life and Plaintiff's role therein, with emphasis on the factual and procedural developments that have occurred since the Court's decision. President Donald J. Trump launched the Commission on May 11, 2017, with a mandate to \"study the registration and voting processes used in Federal elections.\" Executive Order No. 13,799 § 3, 82 Fed. Reg. 22,389, 22,389 (May 11, 2017) (\"May 11, 2017 Exec. Order\"). Plaintiff Matthew Dunlap, Secretary of State of the State of Maine, was among the appointed commissioners. Over the following summer and early fall, the Commission held several meetings regarding election issues and collected some state voter data. Yet, despite his eagerness to contribute to the Commission's work, Plaintiff had reason to believe that Defendants and perhaps other commissioners were inhibiting his ability to fully do so. Plaintiff tried to obtain certain documents from the Commission to vindicate his rights, and when he was unsuccessful, he brought this lawsuit against the Commission, Vice President Michael R. Pence in his capacity as Chair of the Commission, Kris W. Kobach in his capacity as Vice Chair, the Executive Office of the President (\"EOP\"), and the Office of the Vice President (\"OVP\"), among others. Unofficial information shortly thereafter suggested that the Commission might hold a meeting without inviting Plaintiff's involvement in the planning. This precipitated his efforts to obtain preliminary relief, which this Court granted in significant part on December 22, 2017. The Court found that Plaintiff was likely to succeed in obtaining certain relief pursuant to the Court's mandamus jurisdiction, 28 U.S.C. § 1361, and met the remaining elements for a preliminary injunction as to that relief. Defendants were required to provide Plaintiff with certain past and future documents to facilitate his meaningful participation as a commissioner. See, e.g., Dunlap , 286 F.Supp.3d at 107-08."
},
{
"docid": "9241897",
"title": "",
"text": "Identification!\" on January 4, 2018. MTR Opp'n at 10 n.18 (quoting Donald J. Trump (@realDonaldTrump), Twitter (Jan. 4, 2018) ) (internal quotation marks omitted). Nowhere did Defendants indicate that they would comply with the Court's December 22, 2017, Order compelling them to provide Plaintiff with certain documents. Defendants' correspondence with Plaintiff indicated that they would instead seek reconsideration of the Court's Order in light of the Commission's termination. TRO Mem. Ex. 2, ECF No. 35-3, at 1-2. Fearing that his final opportunity to participate in the Commission was slipping away, Plaintiff applied for a temporary restraining order (\"TRO\") seeking extensive relief, including a variety of orders regarding post-dissolution management of Commission documents and an order compelling Defendants' compliance with the Court's preliminary injunction. See Pl.'s Appl. for a TRO, ECF No. 35, at 1-2. In parallel, Defendants sought reconsideration of the Court's preliminary injunction, citing the \"changed circumstances\" of the Commission's termination without \"issu[ing] a report or mak[ing] any recommendations before its dissolution.\" MTR Mem. at 1. In an effort to handle the motion practice most efficiently, the Court held a teleconference with the parties and decided to hold the TRO Application in abeyance while the Court resolved the Motion to Reconsider. Min. Order of Jan. 10, 2018. Plaintiff did, however, request the Court's prompt attention to one issue that he had not expressly raised in the TRO Application, namely whether former Commission members-some of whom were never Defendants in this case-could be restrained from unofficially disseminating official Commission records to the Department of Homeland Security or to other third parties. Id. The parties proceeded to brief the Motion to Reconsider, as well as Plaintiff's ancillary request for some form of restraint on former Commission members. Defendants argued in their briefing that Mr. Kobach, as a Defendant sued only in his official capacity as Vice Chair of the Commission, is no longer a party to this case after the Commission's dissolution. See, e.g. , TRO Ancillary Issue Opp'n at 1. Plaintiff accordingly filed a motion for leave to serve a subpoena on Mr. Kobach to ensure that he would preserve"
},
{
"docid": "9241926",
"title": "",
"text": "ability of Defendants to comply. See Abraham , 223 F.Supp.2d at 184. Even before the Court's December 22, 2017, decision, Defendants had already reviewed and organized a number of Commission documents pursuant to court-ordered production of a Vaughn -type index in a related case before this Court involving the Commission. Dunlap , 286 F.Supp.3d at 110 (citing Vaughn -type index in Lawyers' Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity , Civil Action No. 17-1354-CKK). Moreover, Defendants already offered to make available some of those documents for Plaintiff's inspection. Mem. in Opp'n to Pl.'s Mot. for a Prelim. Inj. Ex. G, ECF No. 30-7, at 2 (extending offer to inspect certain documents related to September 12, 2017, meeting). Defendants do not assert that they are no longer able to produce those documents or that they are unable to produce documents post-dating the Vaughn -type index. As discussed above, the White House records custodian's declaration suggests that they are all preserved. Defendants have not persuaded the Court that justice requires reconsideration. Accordingly, Defendants must produce the documents discussed in the Court's December 22, 2017, decision through the time of the Commission's termination. See Dunlap , 286 F.Supp.3d at 108 (giving guidance as to types of documents to which Plaintiff is entitled). For the avoidance of doubt, the Court makes clear that such production must include relevant documents listed on the Vaughn -type index as well as those generated or received afterwards. The covered time period includes relevant documents generated or received between the Court's December 22, 2017, decision and the Commission's termination. The Court has reason to believe that at least some such documents exist. See TRO Mem. at 8 n.11 (citing Allison Kite, Kobach Voter Integrity Commission, Stalled by Lawsuits, Will Meet in January , Topeka Capital-Journal (Dec. 29, 2017), http://cjonline.com/news/state-government/2017-12-29/kobach-voter-integrity-commissions-talled-lawsuits-will-meet). Plaintiff ultimately should receive relevant documents that any of the former commissioners generated or received. This includes material that commissioners solicited and subsequently received from third parties. See, e.g. , TRO Ancillary Issue Opp'n at 10 n.1 (attributing certain statistics to one such third-party"
}
]
|
784079 | court erred by denying the motion to withdraw his guilty plea, a decision which we review for an abuse of discretion. United States v. Merriweather, 294 F.3d 930, 931 (7th Cir.2002). Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw a plea of guilty after the court accepts the plea, but prior to sentencing, if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.Crim. Pro. 11(d)(2)(B) (2003). Representations made at a Rule 11 plea colloquy are given a presumption of verity, United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002), and the defendant bears the burden of demonstrating a fair and just reason to permit withdrawal of the guilty plea, REDACTED After a thorough Rule 11 colloquy, however, the defendant.faces an uphill battle; and we review the district court’s factual findings as to whether the defendant demonstrated a fair and just reason for clear error. United States v. Hodges, 259 F.3d 655, 661 (7th Cir.2001). Bennett claims that his guilty plea should be withdrawn because it was not voluntarily, knowingly, and intelligently made, and because he is actually innocent. The voluntariness of his plea, however, was examined on two separate occasions by the district court. First, the court explicitly inquired into the voluntariness of Bennett’s plea at the original Rule 11 plea colloquy, asking specifically whether Bennett had fully read and understood the charge and the plea agreement. Bennett said that | [
{
"docid": "16138297",
"title": "",
"text": "denied Sherard’s motion. The district court then sentenced Sherard to 374 months in prison, 60 months of supervised release, and a $2000 fine. Sherard appeals the denial of his motion to withdraw his guilty plea. Rule 32(e) of the Federal Rules of Criminal Procedure authorizes a district judge to permit the withdrawal of a guilty plea “if the defendant shows any fair and just reason.” However, once a district court has accepted a guilty plea, the defendant does not have an unlimited right to withdraw the plea; rather, the burden is on the defendant to demonstrate a fair and just reason for such withdrawal. United States v. Schilling, 142 F.3d 388, 398 (7th Cir.1998). We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Pike, 211 F.3d 385, 388 (7th Cir.2000). In reviewing the district court’s decision, we will uphold factual findings as to whether the defendant has demonstrated a fair and just reason unless they are clearly erroneous. United States v. LeDonne, 21 F.3d 1418,1423 (7th Cir.1994). Sherard argues that the district court should have permitted him to withdraw his plea for two reasons. First, he claims that he was in a state of panic when he entered his guilty plea. Sherard contends that he pled guilty the day his trial was scheduled to begin only because he had just learned that all of his codefendants were going to testify against him. According to Sherard, “this information clouded his judgment” and “overwhelmed” him. Sherard told the district court that he was innocent of the crime, but that since all of his codefend-ants were going to testify against him, he was sure he would be convicted “no matter what the truth was.” As his second reason for wanting to withdraw his guilty plea, Sherard asserts that he did not fully understand the prison sentence that he faced. Sherard claims that he thought his plea agreement would give him a sentence of ten years instead of the more than thirty year sentence he received. At the hearing on Sherard’s motion"
}
]
| [
{
"docid": "11629257",
"title": "",
"text": "After a guilty plea is accepted, a defendant may withdraw it if he presents a “fair and just reason” for doing so. Fed. R.Crim.P. 11(d)(2)(B). In reviewing the decision of the district court, factual findings as to whether the defendant has presented a “fair and just reason” are reviewed for clear error. Chavers, 515 F.3d at 724. “By pleading guilty to a criminal charge, a defendant waives several fundamental constitutional guarantees. Because a defendant sacrifices these critical rights, both due process and Rule 11 require that a defendant’s guilty plea be made voluntarily and knowingly.” United States v. Fernandez, 205 F.3d 1020, 1024 (7th Cir.2000). Rule 11 sets up many requirements that are intended to assure that a defendant’s guilty plea is knowing and voluntary. One requirement is that “before the court accepts a plea of guilty or nolo contendere ... the court must address the defendant personally in open court ... [and] the court must inform the defendant of, and determine that the defendant understands, the nature of each charge to which the defendant is pleading.” Fed. R.Crim.P. 11(b)(1)(G). “Unless the defendant fully comprehends the elements of the crime to which he is confessing, his plea cannot be said to have been knowingly and voluntarily entered.” Fernandez, 205 F.3d at 1025 (quotation and citation omitted). A defendant does not have an absolute right to withdraw a plea before sentencing, but the court may allow him to do so if he has a “fair and just reason” for doing so. Fed.R.Crim.P. 11(d)(2)(B); Chavers, 515 F.3d at 724. “A guilty plea taken without attention being given to the matters set forth in Rule 11 could constitute a ‘fair and just’ reason justifying the request for withdrawal of a plea, and the denial of a motion to withdraw under such a circumstance would-be an abuse of discretion.” United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir.1994). To determine whether the defendant fully understands the nature of the charge to which he is admitting guilt, we have adopted a totality of the circumstances approach. United States v. Pineda-Buenaventura, 622 F.3d 761, 770"
},
{
"docid": "22720529",
"title": "",
"text": "Cir.2001). Because the district court considered and rejected Nolen’s departure arguments on their merits, we would lack jurisdiction to review the court’s decision. Thus, we grant counsel’s motion to withdraw and dismiss Nolen’s appeal. 2. Lane Lane’s counsel first considers a challenge to the district court’s rejection of Lane’s motion to withdraw his guilty plea. A district court may allow a defendant to withdraw his guilty plea any time before sentencing if the defendant provides a “fair and just reason.” Fed.R.Crim.P. 32(e); United States v. Shaker, 279 F.3d 494, 497 (7th Cir.2002). We would review the denial of such a motion for an abuse of discretion. United States v. Wallace, 276 F.3d 360, 366 (7th Cir.2002). At a hearing Lane testified that he was pressured into pleading guilty, thus claiming that his plea was not knowing and voluntary. Because a careful plea colloquy under Rule 11 ensures that the guilty plea is knowing and voluntary, determining whether the district court abused its discretion “depends, in large part, on what the defendant said during the Rule 11 colloquy.” See United States v. Ellison, 836 F.2d 687, 693 (7th Cir.1987). Moreover, representations made at a Rule 11 hearing are accorded a “presumption of verity.” United States v. Pike, 211 F.3d 385, 389 (7th Cir.2000). After being warned at his Rule 11 hearing that he was under oath and that his statements could later be used against him in a prosecution for perjury, Lane testified that no one forced him to plead guilty and that he was doing so of his own free will because he was indeed guilty. He also agreed with the government’s detailed factual basis for the plea. A “ ‘district court is generally justified in discrediting the proffered reasons for the motion to withdraw and holding the defendant to [his] admissions at the Rule 11 hearing.’ ” United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995) (quoting United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993)); see also United States v. Stewart, 198 F.3d 984, 987 (7th Cir.1999) (“[A] defendant has no chance of success on appeal"
},
{
"docid": "23278293",
"title": "",
"text": "repudiate the contract unless he does so pursuant to Rule 32(d) [now Rule 32(e)].”); see also United States v. Miller, 3 F.Supp.2d 376, 384-85 (W.D.N.Y.1998) (analyzing defendant’s request to withdraw from plea agreement and enter guilty plea without agreement under standards of Federal Rule of Criminal Procedure 32(e)). Federal Rule of Criminal Procedure 32(e) provides that a district court “may permit” a defendant to withdraw his guilty plea before sentencing upon a showing of “any fair and just reason.” We shall reverse a district court’s decision to hold a defendant to his plea only for an abuse of discretion. See United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir.1994), cert. denied, 513 U.S. 1020, 115 S.Ct. 584, 130 L.Ed.2d 498 (1994). “In reviewing the district court’s decision, findings regarding whether the defendant has demonstrated a ‘fair and just reason’ will be upheld unless they are clearly erroneous.” Id. In this case, Mr. Standiford asserts that he presented two “fair and just” reasons: (1) He did not knowingly and intelligently waive his right to appeal his sentence; and (2) he was denied effective assistance of counsel because his first attorney advised him to accept the plea agreement, which, in Mr. Standiford’s view, provided no benefits to him, and did not explain fully the consequences of the provision waiving Mr. Standi-ford’s right to appeal his sentence. Mr. Standiford’s first assertion is that he did not knowingly and intelligently waive his right to appeal his sentence. As an initial matter, we note that the district court conducted a careful colloquy with Mr. Standiford pursuant to Federal Rule of Criminal Procedure 11. The whole point of the Rule 11 colloquy is to establish that the plea was knowingly and voluntarily made. See United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987). Accordingly, “in a Rule 32 proceeding, when the court is asked to reevaluate the defendant’s intent at the time of the entry of a plea, that reviewing court’s ultimate determination of the defendant’s state of mind depends, in large part, on what defendant said during the Rule 11 colloquy.” Id. Moreover,"
},
{
"docid": "13520500",
"title": "",
"text": "the parties made a “mutual mistake” that his criminal history score would qualify him for safety valve treatment. White also contended that, because no one explained to him that his failure to qualify for safety valve treatment would also render the other reductions ineffective, he did not enter his plea “knowingly and intelligently.” The district judge, however, found that the “mutual mistake” did not amount to a “fair and just reason” to invalidate the guilty plea and that the plea was “knowingly and intelligently” made. The court sentenced White to the mandatory minimum of 120 months imprisonment. We review the district court’s denial of White’s motion to withdraw his guilty plea for an abuse of discretion. United States v. Silva, 122 F.3d 412, 414-15 (7th Cir.1997). After a guilty plea is accepted but before sentencing, a defendant may withdraw his plea upon showing a “fair and just reason” for doing so. Fed.R.Crim.P. 11(d)(2)(B). But if (as here) the district court conducted a thorough Rule 11 colloquy, the defendant seeking withdrawal faces an “uphill battle.” United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003). Because plea agreements are governed by ordinary contract principles, a theory of mutual mistake may provide a basis for invalidating an agreement. United States v. Barnes, 83 F.3d 934, 938 (7th Cir.1996). To provide such a basis, however, the mutual mistake must affect the “essential parameters” of the guilty plea, such as “[t]he nature of the charge to which the defendant pleads, the factual basis for the plea and the limits of the district court’s sentencing authority....” Id.; see also Cieslowski, 410 F.3d at 362 (“[T]he mistake of both parties must go to ‘a basic assumption on which the contract was made [which] has a material effect on the agreed exchange of performances.’”) (citing Restatement Second of Contracts § 152(1)). Critically, “[t]he precise nature of the punishment that will be imposed after a plea is effected is not always an essential term of the plea agreement,” although it can be, if “the guilty plea is exchanged for the imposition of a specific sentence.... ” Barnes, 83"
},
{
"docid": "2658561",
"title": "",
"text": "the past, there is no absolute right to withdraw a guilty plea, see United States v. Abdul, 75 F.3d 327, 329 (7th Cir.1996), and a defendant seeking to do so faces an “uphill battle” after a thorough Rule 11 colloquy, Bennett, 332 F.3d at 1099. Although the Government’s concession makes Mr. Bradley’s burden somewhat easier to bear, this court has an independent obligation to ensure that guilty pleas are not “lightly discarded” because of the “ ‘presumption of verity’ ” accorded the defendant’s admissions in a Rule 11 colloquy. Silva, 122 F.3d at 415 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993)). Nonetheless, we accept the Government’s confession of error as to its position in the district court proceedings, and we agree with the parties that the district court abused its discretion in denying Mr. Bradley permission to withdraw his pleas. Mr. Bradley contends that his guilty plea violated due process because it was not knowing and voluntary. It is fundamental that “a plea of guilty must be intelligent and voluntary to be valid.” Brady v. United States, 397 U.S. 742, 747 n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Moreover, a plea is not voluntary “in -the sense that it constituted an intelligent admission that he committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” Henderson v. Morgan, 426 U.S. 637, .645, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (quoting Smith v. O’Grady,. 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). To this end, Rule 11(b)(1)(G) of the Federal Rules of Criminal Procedure requires that a defendant adequately be informed of and understand .“the nature- of each charge to which the defendant is pleading.” . To determine whether the defendant fully understood the nature of the charge to which he admitted guilt, we employ a totality of the circumstances approach. See United States v. Fernandez, 205 F.3d 1020,"
},
{
"docid": "2658560",
"title": "",
"text": "Mr. Bradley’s other claims without merit. The court did not address the difference between the indictment and the plea agreement as to the predicate drug trafficking crime for the § 924(c) offense. The court later sentenced Mr. Bradley. He now appeals the district court’s denial of his motion to withdraw the pleas. The Government concedes error in originally opposing Mr. Bradley’s motion to withdraw the pleas. II DISCUSSION We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Silva, 122 F.3d 412, 414-15 (7th Cir.1997). After a guilty plea is accepted, a defendant may withdraw it upon the showing of a “fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B); see also United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003). In reviewing the decision of the district court, factual findings as to whether the defendant has presented a “fair and just reason” are upheld unless clearly erroneous. See Bennett, 332 F.3d at 1099. As we have recited in the past, there is no absolute right to withdraw a guilty plea, see United States v. Abdul, 75 F.3d 327, 329 (7th Cir.1996), and a defendant seeking to do so faces an “uphill battle” after a thorough Rule 11 colloquy, Bennett, 332 F.3d at 1099. Although the Government’s concession makes Mr. Bradley’s burden somewhat easier to bear, this court has an independent obligation to ensure that guilty pleas are not “lightly discarded” because of the “ ‘presumption of verity’ ” accorded the defendant’s admissions in a Rule 11 colloquy. Silva, 122 F.3d at 415 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993)). Nonetheless, we accept the Government’s confession of error as to its position in the district court proceedings, and we agree with the parties that the district court abused its discretion in denying Mr. Bradley permission to withdraw his pleas. Mr. Bradley contends that his guilty plea violated due process because it was not knowing and voluntary."
},
{
"docid": "11383155",
"title": "",
"text": "Woolley, 123 F.3d 627, 631-32 (7th Cir.1997). “[T]he right to appeal is a statutory right, and like other rights — even constitutional rights — which a defendant may waive, it can be waived in a plea agreement.” United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.1997). Voluntariness of a guilty plea is ensured by a court’s compliance with Federal Rule of Criminal Procedure 11. United States v. Schuh, 289 F.3d 968, 975 (7th Cir.2002). 1. Benjamin Johnson On appeal, Johnson challenges the district court’s application of the Sentencing Guidelines at the sentencing hearing. He also insists that after he made a Rule 11(d)(2)(B) motion to withdraw his guilty plea, the district court should have held an evidentiary hearing to determine whether his guilty plea was knowing and voluntary. Johnson, however, waived the right to appeal his sentence in his plea agreement. There is no indication that Johnson’s guilty plea was anything but knowing and voluntary. The trial judge addressed Johnson personally to ensure that his plea was knowing and voluntary. The judge ascertained from Johnson that he understood relevant conduct could be used to enhance the length of his sentence and that the maximum term of imprisonment he could face for his count of conviction was twenty years. The trial judge also made sure that Johnson understood he could plead not guilty and receive all the constitutional protections of a fair trial. Thus, Johnson cannot challenge the district court’s application of the Sentencing Guidelines. The government, however, appropriately concedes that the appellate waiver does not apply to the district court’s denial of an evidentiary hearing. After entering his guilty plea but before the sentencing hearing, Johnson attempted to withdraw his plea. He claimed that he had been coerced by the government and uninformed about the consequences of a guilty plea. The district judge, finding his Rule 11 colloquy with Johnson to be determinative of these issues, denied the request for an evidentiary hearing. We review the district court’s refusal to allow an evidentiary hearing for an abuse of discretion. See United States v. Winston, 34 F.3d 574, 578-79 (7th"
},
{
"docid": "20400918",
"title": "",
"text": "Schaumburg, Illinois, and men named “Steve” and “Bruce,” asking for bail money. In a conversation with the man from Schaumburg, Mays stated: “I got—they caught me with a gun. That’s it. They got me with a gun. That’s it.” The district court understood that statement to communicate that Mays had been caught with only a gun, not drugs. The court believed Mays’s phone calls corroborated the confidential informant’s prior statements that Mays was dealing drugs. Based upon its finding that Mays possessed the gun to protect his drug trafficking activities, the district court sentenced him to 30 months’ imprisonment, in excess of the 12-18 month advisory Guidelines range. Mays appeals, challenging his sentence and the denial of his motion to withdraw his guilty plea. II. A. Motion to Withdraw the Guilty Plea Mays first argues that the district court erred by denying his motion to withdraw his guilty plea. After a court has accepted a guilty plea, a defendant’s right to withdraw the plea prior to sentencing is not absolute, United States v. Bowlin, 534 F.3d 654, 659 (7th Cir.2008); he may withdraw the plea only if he “can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). When a proper Rule 11 colloquy has taken place, a guilty plea enjoys a presumption of verity and the “fair and just” Rule 11(d)(2)(B) escape hatch is narrow. United States v. Roque-Espinoza, 338 F.3d 724, 726 (7th Cir.2003). A defendant’s burden of showing the existence of a fair and just reason is heavy in such circumstances. United States v. Chavers, 515 F.3d 722, 724 (7th Cir.2008). We review the denial of a defendant’s motion to withdraw a guilty plea before sentencing for an abuse of discretion. United States v. Peleti, 576 F.3d 377, 382 (7th Cir.2009). We have recognized several fair and just reasons for withdrawing a plea, including: the plea was not made voluntarily and knowingly, United States v. Weathington, 507 F.3d 1068, 1073 (7th Cir.2007); actual innocence, United States v. Carroll, 412 F.3d 787, 792 (7th Cir.2005); and legal innocence, United States v. Rinaldi 461 F.3d 922,"
},
{
"docid": "8328287",
"title": "",
"text": "to pursue, we conclude that the district court’s denial of Patterson’s motion without an evidentiary hearing was not an abuse of discretion. However, even if Patterson had properly raised this issue through counsel, the district court would not have abused its discretion by denying the motion without an evidentiary hearing. Federal Rule of Criminal Procedure 11 allows a defendant to withdraw a guilty plea “after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). But a defendant who states at a plea colloquy that his plea was “freely and knowingly given ... faces an uphill battle” in convincing a judge that his reasons for withdrawal are “fair and just” because representations made at a plea colloquy are under oath and are given a “presumption of verity.” United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995). We have stated that district courts are “generally justified in discrediting the proffered reasons for the motion to withdraw and holding the defendant to [his] admissions at the [plea colloquy].” Id. At the hearing on defendant’s pro se motion to withdraw his plea, Patterson stated that his lawyer “promised [him] a sentence that [he] didn’t get” and that he did not have enough time to review the plea agreement. While on their face, those reasons appear compelling, we have stated that “[c]laims of involuntariness or confusion that in the abstract seem like sufficient reasons to allow a defendant to withdraw his plea, or at least look into the matter further, may be insufficient in the context of a record containing substantial indications of voluntariness and lack of confusion.” United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992); see also Messino, 55 F.3d at 1248 (citation omitted). “One especially important consideration is the defendant’s answers to the questions posed at his Rule 11 hearing.” Trussel, 961 F.2d at 689-90. Here, defendant’s reasons to withdraw his plea plainly contradicted his sworn statements during the plea colloquy. Moreover, Patterson’s attorney, who was present at the hearing, told the"
},
{
"docid": "5892926",
"title": "",
"text": "departed upwards based on Carroll’s conduct in distributing methamphetamine to minors, he decided instead to sentence at the top of the range. The court also sentenced Carroll to a consecutive five-year term on Count Five. On appeal Carroll challenges the denial of his motion to withdraw his guilty pleas. He also argues that the district court committed clear error in applying the upward adjustment for obstruction, and plain error by applying the sentencing guidelines as mandatory. A defendant does not have an absolute right to withdraw a plea before sentencing, although the court may allow him to do so if he has a “fair and just reason” for doing so; the court’s “factual findings about the existence (or not) of a fair and just reason to withdraw the plea stand unless they are clearly erroneous.” United States v. Wallace, 276 F.3d 360, 366 (7th Cir.2002). We review the district court’s ruling for abuse of discretion. Id. Carroll makes two arguments on his guilty pleas — that he is actually innocent, and that ineffective assistance of counsel rendered the pleas involuntary. We perceive no abuse of discretion in the district court’s refusal to accept either contention as a basis to set aside Carroll’s guilty pleas. As to the first, actual innocence is a valid ground for withdrawing a guilty plea. United States v. Hodges, 259 F.3d 655, 661 (7th Cir.2001). “But a defendant’s bare protestations of innocence— especially after a knowing and voluntary guilty plea in a thorough Rule 11 colloquy — will not suffice.... The defendant must proffer some credible evidence.” Id. Carroll provided no evidence other than his own denials with respect to Counts Four and Five of the superseding indictment, which not only contradicted his earlier sworn testimony during the plea colloquy, but also ignores that as to those two counts the government would have offered at trial the methamphetamine, the gun, and the associated items suggesting drug distribution that were found in Carroll’s quarters. And of course the government would have presented testimony from reservists who saw Carroll with juveniles while he was at Fort McCoy, and"
},
{
"docid": "10919441",
"title": "",
"text": "plea in a forty-five page memorandum opinion and order that addressed each of the claims raised by Loutos. IV. Sentencing On July 2, 2003, the district court entered another memorandum and order concerning Loutos’ sentence. In his opinion, the district court concluded that the $11 million investment fraud proven during the trial of Loutos’ co-defendants should be considered as relevant conduct for the bank fraud to which Loutos pleaded guilty. Based on this determination, the district court recalculated the defendant’s total offense level under the Sentencing Guidelines to reflect this relevant conduct. This resulted in a total offense level of 21. A total offense level of 21 and a criminal history category of I provided for a sentencing range of 37 to 46 months. The district court sentenced Loutos to a term of 37 months in prison. The question before this court is whether Loutos was entitled to withdraw his guilty plea. DISCUSSION Loutos argues on appeal that the district court abused its discretion when it denied his motion to withdraw his guilty plea. Federal Rule of Criminal Procedure 11(d)(2)(B) permits a defendant to withdraw a guilty plea upon showing any “fair and just reason.” United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002). It is the defendant’s burden to demonstrate a fair and just reason. United States v. Milquette, 214 F.3d 859, 861 (7th Cir.2000). We review the decision to deny a motion to withdraw for an abuse of discretion and the district court’s factual findings as to whether the defendant has demonstrated a fair and just reason for withdrawal under Rule 11(d)(2)(B) is reviewed for clear error. United States v. Wallace, 276 F.8d 360, 366 (7th Cir.2002). In a case where the defendant has filed a motion to vacate his guilty plea before the district court and has appealed the denial of that motion, we apply harmless-error analysis to determine whether any errors at the time the plea was taken justified relief under Rule 11(d)(2)(B). United States v. Driver, 242 F.3d 767, 770 (7th Cir.2001). “The harmlessness inquiry naturally should focus on ‘whether the defendant’s knowledge and"
},
{
"docid": "10919442",
"title": "",
"text": "Rule of Criminal Procedure 11(d)(2)(B) permits a defendant to withdraw a guilty plea upon showing any “fair and just reason.” United States v. Schuh, 289 F.3d 968, 974 (7th Cir.2002). It is the defendant’s burden to demonstrate a fair and just reason. United States v. Milquette, 214 F.3d 859, 861 (7th Cir.2000). We review the decision to deny a motion to withdraw for an abuse of discretion and the district court’s factual findings as to whether the defendant has demonstrated a fair and just reason for withdrawal under Rule 11(d)(2)(B) is reviewed for clear error. United States v. Wallace, 276 F.8d 360, 366 (7th Cir.2002). In a case where the defendant has filed a motion to vacate his guilty plea before the district court and has appealed the denial of that motion, we apply harmless-error analysis to determine whether any errors at the time the plea was taken justified relief under Rule 11(d)(2)(B). United States v. Driver, 242 F.3d 767, 770 (7th Cir.2001). “The harmlessness inquiry naturally should focus on ‘whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.’ ” United States v. Fernandez, 205 F.3d 1020, 1024 (7th Cir.2000) (quoting United States v. Padilla, 23 F.3d 1220, 1221 (7th Cir.1994)). Loutos argues that the court failed to provide the required Rule 11 warnings. In particular, Loutos objects to the district court’s failure to specifically discuss appellate and collateral review waivers contained in paragraph 12 of the plea agreement as required by the Rule 11(b)(1)(N). While not stated specifically, Loutos essentially argues that the district court’s failure to satisfy this subsection of Rule 11 rendered his guilty plea involuntary. The law of this circuit and the record in this case undermines Loutos’ argument. A plea of guilty is a “grave and solemn act.” United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir.1986). “Entry of a plea of guilty is not some empty ceremony, and statements made to a federal judge in open court are not trifles that defendants may elect to disregard.” United States v."
},
{
"docid": "13520503",
"title": "",
"text": "recommend that he was eligible for a two-level reduction “if my criminal history qualifies me for safety valve treatment....” And during the plea hearing, the district judge asked White if it was correct that “the Government will make a nonbinding recommendation at sentencing that you, if you qualify, receive the benefit of what’s called a safety valve ... ?” and White answered, “Yes, sir.” Thus, the mistake was not about an essential term of the agreement but rather about the possible sentence, which generally does not support the withdrawal of a guilty plea. See United States v. Bowlin, 534 F.3d 654, 660 (7th Cir.2008) (“We have repeatedly held that the fact that a defendant underestimated his sentence when entering his plea is not a fair and just reason to permit him to withdraw that guilty plea.”) (internal quotation marks omitted). White also argues that, because he was not specifically warned that ineligibility for safety valve treatment would render the government’s other recommendations ineffective, his plea was not “knowingly, voluntarily, and intelligently” made. The district court found that the record contradicted White’s assertion that he was unaware of the consequences of his plea. We agree. A defendant may withdraw his plea if it was not entered into knowingly, voluntarily, and intelligently “with sufficient awareness of the relevant circumstances and likely consequences.” See Bradshaw v. Stumpf 545 U.S. 175, 182-83, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005); United States v. Wallace, 276 F.3d 360, 366 (7th Cir.2002). Voluntary responses made by a defendant under oath before an examining judge, however, are binding. United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987). Accordingly, a guilty plea after a Rule 11 colloquy enjoys “a presumption of verity.” Bennett, 332 F.3d at 1099. Here, the plea agreement specifically stated that the government would recommend a two-level reduction if White was eligible for safety valve treatment, which depended on his criminal history. The agreement further noted that the possible penalty that could be imposed was a mandatory minimum of 10 years imprisonment and that the actual sentence would be determined by the court after an"
},
{
"docid": "8328286",
"title": "",
"text": "‘solely within the discretion of the trial court.’ ” Chavin, 316 F.3d at 671 (quoting Tutino, 883 F.2d at 1141). A defendant does not have a “right” to such an arrangement. See United States v. Gwiazdzinski, 141 F.3d 784, 787 (7th Cir.1998) (“A defendant does not have an affirmative right to submit a pro se brief when represented by counsel.”) (citation omitted); see also United States v. Singleton, 107 F.3d 1091, 1101 n. 7 (4th Cir.1997) (noting that “[t]he cases reiterating the principle that courts are not required to allow defendants to split the responsibilities of the representation with an attorney are myriad”). Indeed, this court has stated that such arrangements are disfavored. Chavin, 316 F.3d at 672. Here, the district court rejected Patterson’s attempt at self-representation and advised him that he could file a motion for substitution of counsel if he wished. In light of the district court’s wide discretion to reject pro se submissions by defendants represented by counsel, and because the district court presented Patterson with an alternative avenue that Patterson declined to pursue, we conclude that the district court’s denial of Patterson’s motion without an evidentiary hearing was not an abuse of discretion. However, even if Patterson had properly raised this issue through counsel, the district court would not have abused its discretion by denying the motion without an evidentiary hearing. Federal Rule of Criminal Procedure 11 allows a defendant to withdraw a guilty plea “after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). But a defendant who states at a plea colloquy that his plea was “freely and knowingly given ... faces an uphill battle” in convincing a judge that his reasons for withdrawal are “fair and just” because representations made at a plea colloquy are under oath and are given a “presumption of verity.” United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995). We have stated that district courts are “generally justified in discrediting the proffered reasons for the motion to withdraw and holding"
},
{
"docid": "17392156",
"title": "",
"text": "the additional time was appropriate because of Bowlin’s “abysmal” criminal record (which earned him 24 criminal history points, well above the number needed for category VI) and the danger he posed to the public. The court noted that the sentence was still below the statutory maximum of 480 months. II We first address Bowlin’s claim that the district court erred in denying his belated motion to withdraw his guilty plea. A defendant’s right to withdraw a plea of guilty before sentencing is not absolute, “although the court may allow him to do so if he has a ‘fair and just reason’ for doing so.” United States v. Carroll, 412 F.3d 787, 792 (7th Cir.2005); Fed.R.Crim.P. 11(d)(2)(B). This court reviews a district court’s denial of a motion to withdraw a plea of guilty for an abuse of discretion. We have cautioned that a “defendant seeking to [withdraw a guilty plea] faces an ‘uphill battle’ after a thorough Rule 11 colloquy” has already occurred. United States v. Bradley, 381 F.3d 641, 645 (7th Cir.2004) (quoting United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003)); see also United States v. Logan, 244 F.3d 553, 558 (7th Cir.2001) (“The presumption of verity [of a defendant’s statements in pleading guilty] is overcome only if the defendant satisfies a heavy burden of persuasion.” (brackets in Logan) (internal quotation marks omitted)). One “just and fair reason” for withdrawing a defendant’s plea of guilty is that the plea was not voluntarily made. United States v. Ellison, 835 F.2d 687, 692-93 (7th Cir.1987). As the Government points out, however, this principle does not override the presumption that the record created by a Rule 11 inquiry is true. See, e.g., United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992). The exchanges reproduced above show that the district court engaged in an extensive Rule 11 colloquy with Bow-lin, thoroughly informing him of his rights and ensuring that he understood the stakes involved in his plea. Even so, Bow-lin now urges that his plea was not “intelligent and voluntary” because, not knowing about Stone’s testimony when he pleaded, he was"
},
{
"docid": "20400919",
"title": "",
"text": "F.3d 654, 659 (7th Cir.2008); he may withdraw the plea only if he “can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). When a proper Rule 11 colloquy has taken place, a guilty plea enjoys a presumption of verity and the “fair and just” Rule 11(d)(2)(B) escape hatch is narrow. United States v. Roque-Espinoza, 338 F.3d 724, 726 (7th Cir.2003). A defendant’s burden of showing the existence of a fair and just reason is heavy in such circumstances. United States v. Chavers, 515 F.3d 722, 724 (7th Cir.2008). We review the denial of a defendant’s motion to withdraw a guilty plea before sentencing for an abuse of discretion. United States v. Peleti, 576 F.3d 377, 382 (7th Cir.2009). We have recognized several fair and just reasons for withdrawing a plea, including: the plea was not made voluntarily and knowingly, United States v. Weathington, 507 F.3d 1068, 1073 (7th Cir.2007); actual innocence, United States v. Carroll, 412 F.3d 787, 792 (7th Cir.2005); and legal innocence, United States v. Rinaldi 461 F.3d 922, 927 (7th Cir.2006). Mays characterizes his argument—the possibility that a change in Fourth Amendment law in Gant would allow him to successfully move for the exclusion of evidence obtained during the search of his vehicle—as a claim of legal innocence. There is some authority for the proposition that a post-guilty plea, presentence change in Supreme Court precedent that bears on a defendant’s legal innocence may constitute a fair and just reason for permitting the withdrawal of the plea. See, e.g., United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir.2004); United States v. Presley, 478 F.2d 163, 167-68 (5th Cir.1973). Here, however, there was no intervening change in Supreme Court precedent: Gant was not decided until after Mays was sentenced. The fact that the Supreme Court had granted the writ of certiorari and heard oral arguments in Gant was not indicative of a change in its Fourth Amendment search-incident-to-arrest precedent. At most, it signified that a change in the law was possible. Mays does not point to any authority that holds that the mere possibility of"
},
{
"docid": "17392157",
"title": "",
"text": "v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003)); see also United States v. Logan, 244 F.3d 553, 558 (7th Cir.2001) (“The presumption of verity [of a defendant’s statements in pleading guilty] is overcome only if the defendant satisfies a heavy burden of persuasion.” (brackets in Logan) (internal quotation marks omitted)). One “just and fair reason” for withdrawing a defendant’s plea of guilty is that the plea was not voluntarily made. United States v. Ellison, 835 F.2d 687, 692-93 (7th Cir.1987). As the Government points out, however, this principle does not override the presumption that the record created by a Rule 11 inquiry is true. See, e.g., United States v. Trussel, 961 F.2d 685, 689 (7th Cir.1992). The exchanges reproduced above show that the district court engaged in an extensive Rule 11 colloquy with Bow-lin, thoroughly informing him of his rights and ensuring that he understood the stakes involved in his plea. Even so, Bow-lin now urges that his plea was not “intelligent and voluntary” because, not knowing about Stone’s testimony when he pleaded, he was mistaken or misinformed about the “reasonable variables that might cause his possible sentence to fluctuate within predictable parameters.” Bowlin sees his case as falling squarely within the framework of United States v. Bradley, supra, in which we found that a guilty plea was not “intelligent and voluntary” because of a mutual mistake about the essential elements of the charged offense. As a result of the mistake, “the facts to which Mr. Bradley admitted, both in the plea agreement and at the Rule 11 colloquy, did not establish the § 924(c) offense with which he was charged.” 381 F.3d at 646. We therefore could “not say Mr. Bradley fully understood the nature of _ the charge to which he admitted guilt”; his plea was not knowing and voluntary, and the district court’s denial of his request to withdraw it was improper. Id. at 645-46. We are not persuaded by Bowlin’s effort to squeeze his case into Bradley’s, result. A mistake about the substantive offense goes to the heart of the guilty plea; a mistake about the"
},
{
"docid": "11629256",
"title": "",
"text": "Fard once again seeks to withdraw his guilty plea as unknowingly and involuntarily entered. He also challenges the district judge’s sentencing decisions regarding the obstruction of justice enhancement and the denial of an acceptance of responsibility reduction. II. ANALYSIS Fard argues that his guilty plea was not knowing and voluntary. He asserts that his plea fell short of the requirements of Federal Rule of Criminal Procedure 11 in two respects. First, his plea colloquy did not comply with Rule 11 because he never understood the nature of the charge against him, and second, the district judge did not ensure that the plea was not based upon any undisclosed promises. With respect to the first claim, Fard asserts that the district judge failed to make sure that Fard understood the nature of wire fraud and particularly that a wire fraud conviction required a specific intent to defraud. We review the district court’s denial of a defendant’s motion to withdraw a guilty plea for abuse of discretion. United States v. Chavers, 515 F.3d 722, 724 (7th Cir.2008). After a guilty plea is accepted, a defendant may withdraw it if he presents a “fair and just reason” for doing so. Fed. R.Crim.P. 11(d)(2)(B). In reviewing the decision of the district court, factual findings as to whether the defendant has presented a “fair and just reason” are reviewed for clear error. Chavers, 515 F.3d at 724. “By pleading guilty to a criminal charge, a defendant waives several fundamental constitutional guarantees. Because a defendant sacrifices these critical rights, both due process and Rule 11 require that a defendant’s guilty plea be made voluntarily and knowingly.” United States v. Fernandez, 205 F.3d 1020, 1024 (7th Cir.2000). Rule 11 sets up many requirements that are intended to assure that a defendant’s guilty plea is knowing and voluntary. One requirement is that “before the court accepts a plea of guilty or nolo contendere ... the court must address the defendant personally in open court ... [and] the court must inform the defendant of, and determine that the defendant understands, the nature of each charge to which the defendant"
},
{
"docid": "15018255",
"title": "",
"text": "we reject Hodges’ ineffective assistance of counsel claim. B Turning to the next issue, withdrawal of a guilty plea, Rule 32(e) of the Federal Rules of Criminal Procedure provides that a defendant may withdraw a guilty plea on a showing of “any fair and just reason.” Id. Rule 32(e), however, is not a free-swinging backdoor. Defendants do not have an absolute right to withdraw their guilty plea, United States v. McFarland, 839 F.2d 1239, 1241 (7th Cir.1988), and after a thorough Rule 11 colloquy, defendants face an uphill battle in demonstrating a fair and just reason. United States v. Schilling, 142 F.3d 388, 398 (7th Cir.1998); United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995). The district court has the discretion to permit the withdrawal of a guilty plea, and we review the district court’s decision for abuse of discretion. United States v. Pike, 211 F.3d 385, 388 (7th Cir.2000); United States v. Abdul, 75 F.3d 327, 329 (7th Cir.1996). We review the district court’s factual findings as to whether the defendant has demonstrated a fair and just reason for withdrawal for clear error. United States v. Milquette, 214 F.3d 859, 861 (7th Cir.2000). As the basis for withdrawing his guilty plea, Hodges claims that he is actually innocent, despite his lengthy Rule 11 colloquy to the contrary. He claims that he rushed into a plea agreement and admission of guilt in his plea hearing, without adequate assistance of counsel (a claim we have rejected) and in a state of confusion, again all contrary to his statements in his Rule 11 colloquy. Further, Hodges relies on his swift recantation (three weeks later), as evidence of his innocence. Last, he claims that all the government witnesses were lying concerning his involvement. Legal innocence has been recognized by this circuit, and rightfully so, as a fair and just reason to withdraw a guilty plea. See United States v. Gomez-Orozco, 188 F.3d 422, 425 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 (7th Cir.1993). But a defendant’s bare protestations of innocence-espeeially after a knowing and voluntary guilty plea in a"
},
{
"docid": "2658559",
"title": "",
"text": "both counts, and the court accepted and entered those pleas. Prior to sentencing, Mr. Bradley substituted his defense counsel and moved to withdraw the guilty pleas. Mr. Bradley advanced several grounds for withdrawal, among them, an argument that his plea was not knowing and voluntary because of misrepresentation or mistake as to criminal culpability on the § 924(c) offense and the void or voidable nature of the plea agreement based on this misrepresentation or mistake. The Government opposed Mr. Bradley’s motion to withdraw the pleas. With regard to the § 924(c) conviction, it argued that Mr. Bradley admitted to carrying the firearm in relation to the marijuana possession; it did not address the change in the predicate drug trafficking offense from the cocaine possession charged in the indictment to the simple marijuana possession relied upon in the plea agreement and at the change-of-plea hearing. The district court denied the motion to withdraw the pleas. It found that Mr. Bradley’s statements at the change-of-plea hearing established a factual basis for the § 924(c) offense and found Mr. Bradley’s other claims without merit. The court did not address the difference between the indictment and the plea agreement as to the predicate drug trafficking crime for the § 924(c) offense. The court later sentenced Mr. Bradley. He now appeals the district court’s denial of his motion to withdraw the pleas. The Government concedes error in originally opposing Mr. Bradley’s motion to withdraw the pleas. II DISCUSSION We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of discretion. See United States v. Silva, 122 F.3d 412, 414-15 (7th Cir.1997). After a guilty plea is accepted, a defendant may withdraw it upon the showing of a “fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B); see also United States v. Bennett, 332 F.3d 1094, 1099 (7th Cir.2003). In reviewing the decision of the district court, factual findings as to whether the defendant has presented a “fair and just reason” are upheld unless clearly erroneous. See Bennett, 332 F.3d at 1099. As we have recited in"
}
]
|
255203 | Court of Delaware. Since the matter had been briefed and only awaited decision, the Court felt the change in Mr. Sullivan’s status should not affect consideration of this appeal. . Section 522(f) provides in pertinent part: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is — (1) a judicial lien; _ 11 U.S.C. § 522(f). . While some courts have held that the better practice, in initiating an adversarial proceeding to avoid a lien, is to file a complaint, REDACTED .Bankr.P. 701(2), 703), the use of a motion to initiate the proceedings is not deemed a serious defect when adverse parties have proper notice. Id. The local procedure of the Bankruptcy Court for the District of Delaware clearly provides for avoidance of liens through motions properly served on adverse parties. See General Order # 7 (Bankr.D.Del., August 1, 1983). . The record presently before the Court does not disclose disputes as to facts that are relevant to this appeal. . The bankruptcy court’s failure to make detailed findings of law and fact, alone, precludes an affirmance by this Court because of its inability to ascertain from the record the basis for the bankruptcy court’s decision. Under the | [
{
"docid": "10195100",
"title": "",
"text": "home; (5) Debtor should be equitably estopped from seeking avoidance of the instant lien because of the doctrine of laches, and (6) a retroactive application of 11 U.S.C. § 522(f) to liens which arose prior to enactment of the Bankruptcy Code constitutes a denial of equal protection and a taking of property viola-tive of the Fifth and Fourteenth Amendments of the United States Constitution. In the alternative, it is urged that, if lien avoidance is permitted, Debtor should not be permitted to claim an exemption on behalf of his wife since she has not joined in Debtor’s Petition. The threshold question before the Court is whether Debtor has utilized the proper procedure to request avoidance of a judgment lien under 11 U.S.C. § 522(f). This Court’s notice dated 15 October 1979 informed that “Complaints to Avoid Liens under § 522(f) will be scheduled for trial or pretrial upon filing of the complaint.” It is the opinion of the Court that requests for lien avoidance are inherently adversarial in nature, (the Court notes the instant matter), and should for the sake of due process of law be properly handled through the more formal pleading processes afforded those matters deemed adversarial, as indicated in Bankruptcy Rule 701(2). Stated differently, however, the question instanter is whether this Court should nullify a proceeding initiated through a Motion, when that proceeding should properly have been initiated by a complaint filing, (Bankruptcy Rule 703), if the Court conducted a hearing identical to the hearing that would have been held had the matter been initiated by complaint, at which the would-be defendants presented full oral argument, and which was followed by the submission of written legal arguments representing both adversarial interests. It is the determination of the Court that, in the interests of expediency and equity, the Motion should not be dismissed for noncompliance with Bankruptcy Rule 703 since such dismissal would not merely result in an unjustifiable duplication of the instant proceedings. The Court further finds that Debtor should not be estopped from a post-discharge action for lien avoidance under the doctrine of laches. Estoppel by"
}
]
| [
{
"docid": "18715644",
"title": "",
"text": "of the mortgage payments and other improvements coming out of the marital assets should be awarded to her subject to a lien for one-half of the equity [acquired] by the parties together after marriage. Designated Record (D.R.) 27. The court set the amount of Robinson’s lien at $7,000. It reached this figure by first determining the amount that Boyd would have to transfer to Robinson to split the marital assets evenly (about >$5,200) and then added to this the amount of non-marital funds that Robinson had spent to add a garage and driveway to the house (about $1,800). After the divorce decree, Boyd filed a chapter 7 petition for bankruptcy, claiming her entire homestead as exempt under Minnesota law. She later instituted an adversary bankruptcy proceeding seeking to avoid Robinson’s lien on the homestead. The Bankruptcy Court, 26 B.R. 772, concluded that this lien is a “judicial lien” under the Bankruptcy Code, § 522(f)(1), and allowed Boyd to avoid the lien. The District Court reversed, holding that the lien is neither a judicial lien nor an impairment of an interest of Boyd’s. Specifically, it found that Robinson’s property interest in the homestead arose by virtue of Minn. Stat.Ann. § 518.58 (West Supp.1984), which charges the family court to make a “just and equitable division of the marital property.” II. Section 522(f)(1) of the Bankruptcy Code, 11 U.S.C. § 522(f)(1) (1982), provides: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien .... Section 101(27) defines “judicial lien” as a lien obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding. For present purposes, section 522(f)(1) establishes two requirements for avoiding a lien: (1) the lien must attach to an interest of the debtor in exempt property; (2) the lien must be a judicial lien. In applying the first requirement to this case, we hold"
},
{
"docid": "18756674",
"title": "",
"text": "MEMORANDUM OPINION JOHN P. MOORE, Bankruptcy Judge. THE MATTER before the Court arises upon the Plaintiffs’ complaint, filed pursuant to 11 U.S.C. § 522(f)(1) (1978), to avoid the Defendant’s judicial lien on the principal residence of the Plaintiffs. At issue here is the constitutionality of that section of the Bankruptcy Code as applied to the Defendant’s judicial lien which arose on February 7, 1979, upon the recording of a transcript of judgment pursuant to Colorado law. It is asserted that the avoidance of the Defendant’s lien would result in the deprivation of a substantive property right without due process of law as mandated by the Fifth Amendment. Section 522(f)(1) provides, in pertinent part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien, . It has been suggested that the Defendant’s lien does not impair the Plaintiffs’ available exemptions for their home. If this were true, it would not be necessary or proper for this Court to decide the merits of the constitutional issue, as constitutional decisions must be avoided where possible. See, Communist Party, U.S.A. v. Catherwood, 367 U.S. 389, 81 S.Ct. 1465, 6 L.Ed.2d 919 (1961). I find, however, that the Plaintiffs’ exemptions are impaired by Defendant’s lien. Pursuant to 11 U.S.C. § 522(d)(1) and (m), the Plaintiffs, as debtors, are each entitled to exempt $7,500.00 of their interest in real property used as a residence. The residence is currently listed for sale at $53,-500.00, and there is no dispute that this amount represents the fair market value of the property. From this amount, the value of two liens senior to that of the Defendant must be subtracted, as well as a seven percent sales commission ($3,745.00) which it is agreed would be an appropriate cost of sale. The first deed of trust is held by Utah Mortgage and Loan Corporation, which has filed a"
},
{
"docid": "17905202",
"title": "",
"text": "file a brief in the bankruptcy court. As a consequence, the bankruptcy judge had no choice but to determine the matter on the plaintiffs’ opening letter memorandum. Plaintiffs anticipated and addressed the timeliness issue. Doc. 2, No. 6. Accordingly, the procedural issue need not further detain one. . 11 U.S.C. § 522(f) provides in pertinent part: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien; .. . . An example of a Local Bankruptcy Rule is Local Rule 21 of the Western District of Kentucky which provides that an action to avoid a § 522 lien must be brought “... at least five business days prior to the scheduled discharge. ... Any motions filed subsequent to the specified date will not be timely and shall constitute good cause to deny the relief sought.” See In re Coomes, 20 B.R. 290, 291 (Bkrtcy.W.D.Ky.1982); In re Williams, 17 B.R. 204, 206 (Bkrtcy.W.D.Ky.1982). . Section 524(c) permits a debtor to retain property subject to a lien, provided he negotiates a reaffirmation of the debt with the creditor prior to discharge. Lien avoidance under 11 U.S.C. § 522(f) is an innovative device of the Bankruptcy Reform Act of 1978 which permits a debtor to avoid “the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled....” . 11 U.S.C. § 362(c)(2) provides in pertinent part: (c) Except as provided in subsections (d), (e), and (f) of this section— (2) the stay of any other act under subsection (a) of this section continues until the earliest of— (A) the time the case is closed; (B) the time the case is dismissed; and (C) if the case is a case under chapter 7 of this title concerning an individual or a case"
},
{
"docid": "6821225",
"title": "",
"text": "the seizure of property. Debtors took no action and on March 10, 1980, City Bank sent to Debtor’s employer, 7-Eleven Food Store, hereafter “Garnishee”, a Garnishee Order After Judgment. Thereafter, between September 26, 1980 and January 1, 1981, Garnishee made deductions and paid City Bank the amount of $652.29. On December 24, 1980, Debtor filed a Chapter 7 bankruptcy petition. Debtors assert that the garnishment order amounts to a judicial lien which can be avoided under 11 U.S.C. § 522(f). This section provides as follows: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien; ... Initially the Court finds that the fact that Debtors did not claim the garnisheed wages as an exemption is irrelevant to the application of section 522(f). Under this section the debtor may avoid the fixing of a judicial lien to the extent that the lien impairs an exemption to which the debtor is entitled to exempt. Thus, actual exemption is unnecessary. In Woodman v. L. A. Olson Co., Inc. (In re Woodman), 8 B.R. 686 (Bkrtcy.W.D.Wis.1981), the court stated: The debtor has suggested that because the lien created by service of the garnishee summons is in the nature of a judicial lien which would be voidable if in existence on the date of the order for relief in this case by operation of 11 U.S.C. § 522(f)(1), it should be deemed ineffective as a transfer. We find no merit to this contention and no basis in reason or legislative history for giving the lien avoidance provisions of 11 U.S.C. § 522(f)(1) such retrospective effect. On May 5 and May 21 when the garnishment summons and complaints were served, Olson acquired a perfected lien and the employer became liable to Olson. The employer thereby parted with “an interest in property of the debtor.” Those transfers were more than ninety days prior"
},
{
"docid": "14634892",
"title": "",
"text": "1112-1001. This language merely codifies the holdings in Johnson, Weatherspoon, and other cases as they apply to exemptions. As Judge Wed-off explained in Bates, 148 B.R. at 547, “the only possible interpretation of this phrase is to limit the application of the exemption prohibition to a wage deduction that has been confirmed by a court order.” See also Garcia, 149 B.R. 530 (reaching this same conclusion). Since no wage deduction order was obtained in this case, § 12-1001 does not prevent Debtor from claiming the withheld wages as an exemption. However, until notice to amend the exemption schedule is served on creditors, the motion to amend the exemption schedule cannot be considered. For that reason, that part of the motion will be continued to allow service of the required notice. 3. Lien Avoidance under 11 U.S.C. § 522(f)(1) Section 522(f)(1) of the Bankruptcy Code provides, Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is ... a judicial lien.... 11 U.S.C. § 522(f)(1). American has a judicial lien on the withheld wages, and those wages are potentially exempt property under Illinois law as it applies through 11 U.S.C. § 522(b). Even before treating that property as exempt, moreover, Debtor has a right to those wages subject to the judicial lien, as earlier discussed. Therefore, American’s lien impairs Debtor’s right to that property, and Debtor has a right to avoid that lien pursuant to § 522(f)(1). Bates, 148 B.R. at 548; Weatherspoon, 101 B.R. at 541-42; In re Watterson, 102 B.R. 702, 703 (Bankr.C.D.Ill.1987); Johnson, 53 B.R. at 922-24. An order granting such relief must be entered. 4. Whether the Automatic Stay was Violated Section 362(a) of the Bankruptcy Code provides that, ... a petition filed under section 301 ... of this title ... operates as a stay, applicable to all entities, of— (2) the enforcement, against the debt- or or against"
},
{
"docid": "5176694",
"title": "",
"text": "MEMORANDUM OPINION WILLIAM E. ANDERSON, Bankruptcy Judge. This case presents the question of whether a debtor may, pursuant to 11 U.S.C. § 522(f)(1), avoid the fixing of a judicial lien on property that in the absence of the lien would be exempt under state law, even though state law defines the property as nonexempt because it is encumbered by a judicial lien arising out of a claim for unpaid rent. This is a core proceeding which the court may properly hear and determine. 28 U.S.C. § 157(b)(1). BACKGROUND The facts of this case are brief and undisputed. On October 15, 1986, Richard Green (“the creditor”) obtained a state court judgment for $1,352 against the debtors, Charles and Janet Snow (“the debtors”). The judgment was based on unpaid rent due the creditor. The creditor, in an effort to satisfy his judgment, obtained a writ of fieri facias and levied against various items of the debtors’ personal property. By operation of Virginia law, this process created a lien on that property in favor of the creditor. Va. Code § 8.01-478 (1984 Repl.Vol.). The debtors recorded a homestead deed on November 1, 1986. Among other items of personal property the debtors claimed the property levied upon by the creditor as exempt pursuant to Va. Code 34-4. Subsequently, on November 12,1986, the debtors filed a joint petition under Chapter 7 of the Bankruptcy Code. The debtors seek to avoid the creditor’s judicial lien pursuant to 11 U.S.C. § 522(f)(1), asserting that the lien impairs an exemption to which they would have been entitled. The creditor seeks to enforce his lien in the property levied upon, claiming that Va. Code § 34-5(5) precludes the debtors’ use of the lien avoidance mechanism of 11 U.S.C. § 522(f)(1) here because Va. Code § 34-5(5) renders the debtors’ exemption of that property inapplicable to him. DISCUSSION Section 522(f)(1) of the Bankruptcy Code, which governs the avoidance of judicial liens, provides in pertinent part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor to the extent that such"
},
{
"docid": "17590253",
"title": "",
"text": "dispute between a debtor and a lien creditor over property which was beyond the bankruptcy court’s jurisdictional reach. We disagree because the abandonment had no effect upon the bankruptcy court’s authority to determine the § 522(f) motion or its jurisdiction of the debtor’s property. In pertinent part, § 522(f) provides: Notwithstanding any waiver of exemptions ..., the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debt- or would have been entitled under subsection (b) of this section, if such lien is ... a judicial lien.... 11 U.S.C. § 522(f)(1)(A) (emphasis added). This language shows that lien avoidance under § 522(f) relates solely to property of the debtor. Bankruptcy jurisdiction of property of the debtor emanates from 28 U.S.C. § 1334(e)(1), which provides: The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction— (1) of all the property, wherever located, of the debtor as of the commencement of such case, and of property of the estate .... 28 U.S.C. § 1334(e)(1) (emphasis provided). This precise language shows that bankruptcy jurisdiction of property extends separately to property of the debtor and property of the estate. By definition exempt property is property of the debtor. Property of the estate is not implicated under § 522(f). To avoid the fixing of a lien three factors must be present: “(1) there must be a lien fixed on an interest of the debtor in property; (2) the lien must impair an exemption to which the debtor would have been entitled; and (3) the lien must be a judicial lien.” Wilding v. CitiFinancial Consumer Fin. Servs., Inc. (In re Wilding), 475 F.3d 428, 431 (1st Cir.2007) (internal citations omitted) (permitting debtor to reopen chapter 7 case to avoid judicial lien). Because property of the estate is not implicated under § 522(f), a bankruptcy court’s juris diction to determine a request under that provision does not lapse upon the trustee’s abandonment of the affected property. See, e.g., In re"
},
{
"docid": "23290315",
"title": "",
"text": "lien is a contested matter governed by Federal Rule of Bankruptcy Procedure 9014, and the various rules incorporated therein. Fed.R.Bankr.P 4003(d). A motion that is governed by Rule 9014 \"shall be served in the manner provided for service of a summons and complaint by Rule 7004,” which provides for nationwide service by first-class mail, by publication, or pursuant to Federal Rules of Civil Procedure 4(c)(2)(C)(i) and 4(d). . The motion, in its entirety, states: To AVCO, the attorneys of record for said creditor and all other interested parties: Debtor above captioned hereby moves this court for an order avoiding the nonpurchase [sic] money non-possessory [sic] lien of AVCO upon the exempt household goods and personal effects of Debtor herein pursuant to 11 U.S.C. 522(f). . The full text of the section is: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien; or (2) a nonpossessory, nonpurchase-money security interest in any— (A) household furnishings, household goods, wearing apparel, appliances, books, animals, crops, musical instruments, or jewelry that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor; (B) implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor; or (C) professionally prescribed health aids for the debtor or a dependent of the debtor. 11 U.S.C. § 522(f). . Federal Rule of Bankruptcy Procedure 4003(d) provides: A proceeding by the debtor to avoid a lien or other transfer of property exempt under § 522(f) of the Code shall be by motion in accordance with Rule 9014. Fed.R.Bankr.P. 4003(d). . Federal Rule of Civil Procedure 43 and the Federal Rules of Evidence apply to adversary proceedings and to contested matters. Fed. R.Bankr.P. 9017. There is, however; a key difference in the manner in which evidence in a contested matter"
},
{
"docid": "17905201",
"title": "",
"text": "the undeveloped record below, the matter must be remanded. On remand, depending upon the factual matrix presented, the bankruptcy judge may wish to give consideration to the following as a nonex-haustive list of equitable factors: 1) vigor with which the judgment creditors pursued the debtors prior to the filing of the bankruptcy petition, 2) communication of positions by and between debtors and judgment creditors after filing of the petition and prior to discharge, 3) motivating cause of failure to file lien avoidance complaint prior to discharge, 4) length of time between discharge and filing of lien avoidance complaint, 5) reason for the delay in filing of lien avoidance complaint, 6) prejudice to the judgment creditors, and 7) good faith, or lack thereof, of the creditors. An order reversing judgment on the pleadings and directing remand will be entered. . The debtors attempt to assert a second issue, viz., a procedural deficiency in that defendants’ answer to the complaint did not raise the issue of timeliness. The matter is further complicated because defendants inexplicably failed to file a brief in the bankruptcy court. As a consequence, the bankruptcy judge had no choice but to determine the matter on the plaintiffs’ opening letter memorandum. Plaintiffs anticipated and addressed the timeliness issue. Doc. 2, No. 6. Accordingly, the procedural issue need not further detain one. . 11 U.S.C. § 522(f) provides in pertinent part: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien; .. . . An example of a Local Bankruptcy Rule is Local Rule 21 of the Western District of Kentucky which provides that an action to avoid a § 522 lien must be brought “... at least five business days prior to the scheduled discharge. ... Any motions filed subsequent to the specified date will not be timely and shall constitute good cause to deny"
},
{
"docid": "13780429",
"title": "",
"text": "other than the expenditure of modest court costs and attorneys’ fees, debtors should not be barred from maintaining their action. The judgment will be reversed and remanded on the condition that debtors pay $165.00 to creditors. . Section 522(f) provides in pertinent part: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that, such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien; .... . At oral argument counsel for creditors stated that creditors also attempted to garnish Mr. Noble’s wages but discovered that he was unemployed. The Court has found no record evidence to support that statement. . The Court finds it curious that debtors listed the date of the unsecured judgment against them as May, 1980 — the date of the Superior Court, not Justice of the Peace, judgment. Counsel for debtors was unable at oral argument to explain how this date came to be listed and insisted that both he and his clients did not realize the secured status of creditors. . Debtors argued in their brief on appeal that Fed.R.Civ.P. 5(a) required creditors to serve a copy of their proof of claim on the debtors or their attorney. (Doc. 7 at 6-7). At oral argument, however, debtors conceded that Fed.R. Civ.P. 5(a) cannot apply because old General Order 37, which had applied the Federal Rules of Civil Procedure to bankruptcy proceedings, was abrogated in 1973 when the Bankruptcy Rules took effect. See 1 Collier on Bankruptcy ¶ 2.81, at 390.40 (14th ed. 1976); 2 Moore’s Federal Practice ¶ 1.03[2.—0], at 151 (2d ed. 1983). Bankruptcy Rules 302(b) and 509(a), in effect at the time of the Nobles’ bankruptcy proceeding, required only that proof of claims be filed with the clerk of the district court. New Rules 3002(b) and 5005(a) have a similar requirement. Thus, although service of courtesy copies on opposing counsel may be desirable, the Bankruptcy Rules do not require it."
},
{
"docid": "13692328",
"title": "",
"text": "522(f)(2)(C). The second legal issue, raised sua sponte by this Panel, is whether the Massachusetts judgment is void ab initio as against David Hart, as it was obtained by the Bank after David Hart had filed bankruptcy without the Bank having first obtained relief from stay. III.JURISDICTION The United States Bankruptcy Appellate Panel for the First Circuit (the “Panel”) has jurisdiction over this appeal of the bankruptcy court’s order granting the Debtors’ motion to avoid the Bank’s lien. See 28 U.S.C. § 158(a)(1) and (b). IV.STANDARD OF REVIEW A bankruptcy court’s findings of fact are reviewed under the clearly erroneous standard, while its conclusions of law are reviewed de novo. See Brandt v. Repco Printers & Lithographies, Inc. (In re Healthco Int'l. Inc.), 132 F.3d 104, 107 (1st Cir.1997); Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir.1994); In re SPM Mfg. Corp., 984 F.2d 1305, 1310-11 (1st Cir.1993); see also Fed.R.Bankr.P. 8013. Since only conclusions of law are at issue in this appeal, the Panel reviews the record de novo. V.DISCUSSION The parties seek a determination of the meaning of the phrase “a judgment arising out of a mortgage foreclosure,” as used in § 522(f)(2)(C). Subsection 522(f)(1) allows a debtor to avoid certain liens to the extent the liens impair an exemption to which a debtor is entitled. Of relevance here is subparagraph (A) of § 522(f)(1) which addresses judicial liens: (f)(1) Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A) a judicial lien ... In this case, the Debtors filed a motion to avoid several judicial liens which they alleged impaired their homestead exemption and the Bank objected to avoidance of its lien. Paragraph 522(f)(2) sets forth the formula to be utilized in determining whether a particular lien impairs an exemption. It provides: (f)(2)(A) For the purposes of"
},
{
"docid": "10214274",
"title": "",
"text": "MEMORANDUM OPINION JOHN E. RYAN, Bankruptcy Judge. The issue before this court is the extent to which the debtor may avoid a judgment lien on the debtor’s residence (the “Property”). The judicial lien is held by Lionel Daniel West in the amount of $76,795 (the “West Lien”). The debtor filed a petition for relief under Chapter 7, Title 11, U.S.C., on June 18, 1985 and listed on her schedules the value of the Property at $116,840. Mr. West has not contested this valuation. Therefore, I find that the value of the Property is $116,-840. The Property is subject to a first deed of trust in the amount of $64,334, which lien has priority over the West Lien. The Property is also subject to second, third and fourth deeds of trust in the amounts of $22,500, $15,000 and $12,881, respectively. These deeds of trust follow the West Lien in priority. The debtor in her schedules listed her homestead exemption at $1,525. On May 12, 1986, the debtor filed a Motion to Avoid Judicial Lien pursuant to 11 U.S.C. § 522(f)(1). The parties stipulated to have the matter heard by motion. A hearing was held on December 2, 1986. Section 522 of the Bankruptcy Code sets forth exemptions from property of the estate. Section 522(f)(1) states in part that: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is (1) a judicial lien; .... In presenting their respective positions, the parties cite a number of cases interpreting § 522(f)(1). Judicial interpretations of § 522(f)(1) vary significantly. I begin my review with the language of § 522(f)(1). It grants the debtor the right to avoid a judicial lien on her exempt property. See In re Durham, 33 B.R. 23, 25 (Bankr.D.Tenn.1983); 3 Collier on Bankruptcy, ¶ 522.29[1] at 522-80 (15th Ed. 1985). Debtor declared a homestead exemption of $1,525. See Cal.Civ.Proc.Code (West 1983) §"
},
{
"docid": "2520918",
"title": "",
"text": "instructive and persuasive in the context of matters against Indian tribes in bankruptcy. The Avoidance Motion is a “Suit” Barred by Tribal Sovereign Immunity Before deciding whether a lien avoidance application is a “suit” for immunity purposes, we consider the nature of a lien avoidance action in bankruptcy. Ordinarily, prepetition hens pass through a bankruptcy case unaffected. In the absence of a hen avoidance action, a secured creditor may look to the property securing the claim for satisfaction of its prepetition hen, but may not look to the debtor personally for payment. Moreover, hens that are not avoided may be enforced against exempt property. Thus, absent hen avoidance, a judgment hen creditor may look to exempt property to satisfy its judgment lien. A successful hen avoidance action effectively divests a creditor of its hen to the extent that it impairs an exemption. Here, the Appellant’s Avoidance Motion is brought pursuant to § 522(f)(1), which provides in pertinent part: Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a hen on an interest of the debtor in property to the extent that such hen impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such hen is- — (A) a judicial hen.... Under the Bankruptcy Code, a hen avoidance apphcation brought pursuant to § 522(f) is a “contested matter” and not an adversary proceeding. Unlike an adversary proceeding, a contested matter is initiated by filing a motion rather than a complaint. While no summons is issued and served upon the “defendant” in a contested matter, service of a pleading initiating a contested matter is made in the same manner as service of a summons and complaint in an adversary proceeding. The different procedural treatment of § 522(f) lien avoidance actions (contested matters) from all other lien avoidance actions (adversary proceedings) is explained by one bankruptcy commentator as follows: Rule 4003(d) is a recognition that in the vast majority of cases brought under section 522(f) the proceeding is not contested, and that even if there is"
},
{
"docid": "22455153",
"title": "",
"text": "avoid the lien and Helen Owen filed a response. Argument was had before the court on August 21, 1987. On December 1, 1987, the bankruptcy court entered an order granting the motion to avoid the lien. Thereafter, Helen Owen filed a motion to amend or make additional findings of fact, pursuant to Rule 7052(b), and to alter or amend the order of December 1, 1987. On February 8, 1988, the court entered an order reversing the December 1 ruling. The order found the lien sought to be avoided was not of the type included in Section 522(f)(1) and denied debtor’s motion to avoid the lien. This is the order appealed from by Appellant. DISCUSSION The Court will address the procedural validity of the bankruptcy court’s entry of order on motion to amend, filed February 8, 1988. The order states that the cause was before the court on ex parte consideration of Helen Owen’s motion to amend. The court considered the motion to amend and the prior record in the cause. The court did not require or allow a response from debtor to the motion to amend, nor was argument or hearing allowed on the motion. Upon due consideration, the Court finds the brief of Appellee on this issue persuasive. The local rules of the bankruptcy court imbues the bankruptcy judge with the power to suspend the requirements of the rules and for proceedings in accordance with the court’s direction. Rule 101, Local Rules of the Bankruptcy Court. The Court specifically finds the order of February 8, 1988, to have been entered within the authority of Judge Paskay. The second issue is whether or not the bankruptcy court was in error in amending its previous order and finding that the lien of Helen Owen on the property in question was not avoidable. Appellant seeks to avoid the lien of Helen Owen under 11 U.S.C. § 522(f), which states in relevant part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of an lien on interest of the debtor in property to the extent that such lien impairs an exemption"
},
{
"docid": "17590252",
"title": "",
"text": "REVIEW When, as here, there are no facts in dispute, our review of an order is de novo. Stevenson v. Bankowski (In re Stevenson), 399 B.R. 289, 292 (1st Cir. BAP 2009) (citing TI Fed. Credit Union v. Del-Bonis, 72 F.3d 921, 928 (1st Cir.1995)). Generally, an order denying reconsideration is reviewed separately for abuse of discretion. See In re Garcia Matos, 478 B.R. at 511. Here, because the order denying reconsideration turned on the same error of law as the order denying § 522(f) relief, and because an error of law is always an abuse of discretion, our review of the Rule 59(e) order is plenary. See Rio Mar Assocs., LP, SE v. UHS of Puerto Rico, Inc., 522 F.3d 159, 163 (1st Cir.2008). For these reasons a single review will suffice. DISCUSSION The only question before us is whether the bankruptcy court correctly determined that it lacked jurisdiction to determine Rosado’s request for lien avoidance after the abandonment. The bankruptcy court’s decision was based upon its view that her motion presented a two-party dispute between a debtor and a lien creditor over property which was beyond the bankruptcy court’s jurisdictional reach. We disagree because the abandonment had no effect upon the bankruptcy court’s authority to determine the § 522(f) motion or its jurisdiction of the debtor’s property. In pertinent part, § 522(f) provides: Notwithstanding any waiver of exemptions ..., the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debt- or would have been entitled under subsection (b) of this section, if such lien is ... a judicial lien.... 11 U.S.C. § 522(f)(1)(A) (emphasis added). This language shows that lien avoidance under § 522(f) relates solely to property of the debtor. Bankruptcy jurisdiction of property of the debtor emanates from 28 U.S.C. § 1334(e)(1), which provides: The district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction— (1) of all the property, wherever located, of the debtor as of the commencement"
},
{
"docid": "9976659",
"title": "",
"text": "DECISION AND ORDER DENYING MOTION OF DEBTORS TO AVOID MECHANICS’ LIEN OF NATIONWIDE ROOFING AND SHEET METAL, INC. WILLIAM A. CLARK, Bankruptcy Judge. PROCEDURAL POSTURE This matter is before the court upon a motion of the debtors/movants, Shad E. and Mary E. Ramsey, to avoid under 11 U.S.C. § 522(f) a mechanics’ lien, which is held by the respondent, Nationwide Roof ing and Sheet Metal, Inc., and encumbers the debtors’ residence. This proceeding arises under title 11, is within the district court’s jurisdiction pursuant to 28 U.S.C. § 1334(b), and has been referred to this court by virtue of the district court’s standing order of reference. This matter is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(E) — determination of the validity, extent, or priority of liens — and (0) — other proceedings affecting the adjustment of the debtor-creditor relationship. At the hearing on the debtors’ motion, counsel for the debtors stated that the debtors are not contesting the validity of respondent’s mechanics’ lien or the process by which it was obtained, but only whether or not a mechanics’ lien is subject to avoidance under Section 522(f) of the Bankruptcy Code. CONCLUSIONS OF LAW Section 522(f)(1) of the Bankruptcy Code provides that, (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien. The sole issue before the court is whether a mechanics’ lien obtained in accordance with Ohio law constitutes a “judicial lien” as defined by the Bankruptcy Code and is, thereby, avoidable under 11 U.S.C. § 522(f). In general, the Bankruptcy Code divides the concept of lien into three types of liens: judicial liens, security interests, and statutory liens. These “three categories are mutually exclusive and are exhaustive except for certain common law liens.” H.R. Rep. No. 595, 95th Cong., 1st Sess. 312 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6269."
},
{
"docid": "18740445",
"title": "",
"text": "list the house for sale and upon sale both parties will divide the net proceeds from the sale.... TO [MRS. CATLI]: ... A lien against the family home for one half of the net proceeds received at the time of sale.... Instead of selling the home as ordered, Mr. Catli, on May 8,1989, filed for bankruptcy under Chapter 7 of the Bankruptcy Code and claimed a homestead exemption in the family home under 11 U.S.C. § 522(d)(1). Mr. Catli then moved pursuant to 11 U.S.C. § 522(f)(1) to avoid Mrs. Catli’s lien on the family home as a judicial lien impairing his homestead exemption. The bankruptcy court entered an order granting Mr. Catli’s Motion for an Order Avoiding Lien on Exempt Property. Mrs. Catli appealed to the Bankruptcy Appellate Panel for the Ninth Circuit (“BAP”). The BAP affirmed. Evelyn Catli timely appeals. STANDARD OF REVIEW We review de novo the decisions of the Bankruptcy Appellate Panel. In re Dewalt, 961 F.2d 848, 850 (9th Cir.1992). We also review the bankruptcy court’s conclusions of law de novo and review for clear error its findings of fact. Id. DISCUSSION I. Under 11 U.S.C. § 522(f)(1): Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien.... Thus, under § 522(f)(1), a debtor may avoid a lien if three conditions are met: (1) there was a fixing of a lien on an interest of the debtor in property; (2) such lien impairs an exemption to which the debtor would have been entitled; and (3) such lien is a judicial lien. In re Stone, 119 B.R. 222, 226 (Bankr.E.D.Wash.1990). The debtor has the burden of demonstrating that he is entitled to avoid a judicial lien under § 522(f)(1). See In re Butler, 5 B.R. 360, 361 (Bankr.D.Md.1980). Under In re Pederson, 875 F.2d 781, 782 (9th Cir.1989), disapproved on other grounds, Farrey"
},
{
"docid": "10073468",
"title": "",
"text": "section 5206 is August 24, 1977. By its terms, the state statute cannot be retroactively applied. The parties to the present motion have treated the problem as though the Federal exemption were chosen, as that is the only one which will operate retroactively upon the lien of the judgment creditor in this case. Since in the Court’s view, an amendment of the choice of exemption even at this juncture would not only be timely, but in accord with the clearly expressed legislative intent, the Court will treat the issue raised as though the amendment were an accomplished fact. II. Section 522(f) of the Bankruptcy Code provides in pertinent part: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien. 11 U.S.C. § 522(f)(1). Before reaching the issue raised by the judgment creditor, it should be determined whether the debtor here is within the provision of the subsection. Absent the judicial lien of the respondent, it is apparent that the property in question is unencumbered. It is worth $5,000. The debtor has claimed an exemption in that amount, which is within the statutory allowance. The lien in question encroaches on, or impairs the amount of the exemption otherwise allowable. Therefore, the debtor is within the section. The second threshold question requires a determination of the congressional intent with respect to the applicability of section 522(f)(1). Did Congress intend it to apply retroactively, or prospectively only? There are few reported decisions dealing with the debtor’s power to avoid a judicial lien under section 522(f)(1). With but few exceptions, those courts which have dealt with the issue, with respect to security interests under section 522(f)(2), have been of the view that retrospective application of the avoiding power was intended by Congress. The one circuit court which had the issue before it, and which held section 522(f)(2) unconstitutional, stated: If"
},
{
"docid": "23216226",
"title": "",
"text": "a dissolution proceeding to be commenced in Dakota County District Court. By the consent of Wicks and appellant, no trial was held. The court entered a judgment and decree on April 14,1980, adopting all the terms of the stipulation agreement with the exception of a provision regarding a child custody matter, which had previously been changed by mutual agreement of appellant and Wicks. After the failure of appellant to pay the lien once it had become due and the commencement of a foreclosure action by Wicks, appellant filed a petition commencing this bankruptcy case seeking to avoid Wicks’ lien. Wicks commenced an adversary proceeding in this case and filed a motion for a partial summary judgment on September 13, 1982. On December 21, 1982 Judge Owens granted debtor Boyd’s motion for summary judgment finding that the lien was avoidable as a judicial lien under section 522(f)(1) of the bankruptcy code. On the same day Judge Owens granted creditor Wicks’ motion for summary judgment finding that his lien was not avoidable as a judicial lien under section 522(f)(1). The first issue before this court is whether the lien imposed by the State District Court in the Boyd/Robinson marriage dissolution was properly avoided as a judicial lien under section 522(f)(1) by the Federal Bankruptcy Court. Section 522(f)(1) reads as follows: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is a judicial lien. In the legislative history regarding section 101(28) which defines lien the following is stated, “In general the concept of lien is divided into three kinds of liens: judicial liens, security interest, and statutory liens. Those three categories are mutually exclusive and are exhaustive except for certain common law liens.” A judicial lien is defined by 11 U.S.C. § 101(27) to be a: “lien obtained by judgment, levy sequestration or other legal or equitable process or proceeding.” Judge Owens made the"
},
{
"docid": "6617102",
"title": "",
"text": "are similar. The debtors, Robert and Rose Rosol, entered a retail installment contract with Al-onzi Acceptance Corporation. To secure the debt, the Rosols executed a wage assignment. After their default, Alonzi Acceptance served a demand notice on one of the Rosols’ employers pursuant to Illinois statute. At the time the Rosols filed for bankruptcy under Chapter 7, the employer was holding $57.59 under the prior wage assignment. During the Chapter 7 proceedings, the debtors each filed a motion to avoid their respective wage assignments under section 522(f)(1), which authorizes debtors to avoid “judicial liens.” Neither motion was contested. However, the court questioned whether the facts set forth in the motions allowed for the relief sought. See Bankruptcy Rule 9013 (requiring that motions state the grounds for relief with particularity). The court requested debtors’ counsel to brief this issue. II. CONCLUSIONS OF LAW A. Jurisdiction. The motions now before the court involve the debtors’ power to avoid liens under section 522(f)(1). Lien avoidance matters are civil proceedings arising in or related to cases under the Bankruptcy Code and so are within the jurisdiction of the district court. 28 U.S.C. § 1334(b). General Local Rule 2.33 of the Northern District of Illinois refers such matters to the bankruptcy judges of this district. Furthermore, because they concern the administration of the estate, these motions are “core matters” which, upon reference, a bankruptcy judge may determine on a final basis pursuant to 28 U.S.C. section 157(b)(2)(A). See In re Jamison, 93 B.R. 595, 596 (Bankr.S.D.Ohio 1988). B. Requirements under Section 522(f)(1). Section 522(f)(1) of the Bankruptcy Code is the sole basis on which the debtors in these cases seek relief. It provides, in relevant part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien in an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is a (1) a judicial lien; ... To obtain relief under this section, the debtors must satisfy five requirements. First, the"
}
]
|
169186 | is eligible for violent felony classification but the state criminal statute is over-inclusive — that is, the elements of the offense also encompass conduct that does not constitute a violent felony — the sentencing court must consider the facts underlying the defendant’s conviction to determine whether it was a violent felony for purposes of § 924(e)(2)(B). However, to avoid the practical difficulties and potential unfairness of retrying the prior case, this inquiry is conducted by examining a limited universe of judicial documents to determine whether the state court jury found, or the defendant admitted, that he was guilty of conduct constituting a violent felony. See McCall, 439 F.3d at 973-74, applying Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143, and REDACTED In these circumstances, if the defendant fails to object to fact statements in the presentence investigation report (PSR) establishing that a prior offense was a violent felony conviction, the government need not introduce at sentencing the documentary evidence that Taylor and Shepard otherwise require. McCall, 439 F.3d at 974; United States v. Menteer, 408 F.3d 445 (8th Cir.2005). A. The Automobile Tampering Conviction. In 1996, Reliford was convicted of first degree motor vehicle tampering, a Missouri offense defined as “knowingly receiving], possessing], selling] ... or unlawfully operating] an automobile ... without the consent of the owner.” Mo. Ann. Stat. § 569.080(1)(2). A violation of this statute is a violent felony under the “otherwise involves” provision | [
{
"docid": "22670135",
"title": "",
"text": "Justice Souter delivered the opinion of the Court, except as to Part III. Title 18 U. S. C. § 924(e) (2000 ed. and Supp. II), popularly known as the Armed Career Criminal Act (ACCA), mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior convictions for serious drug offenses or violent felonies. The Act makes burglary a vio lent felony only if committed in a building or enclosed space (“generic burglary”), not in a boat or motor vehicle. In Taylor v. United States, 495 U. S. 575 (1990), we held that a court sentencing under the ACCA could look to statutory elements, charging documents, and jury instructions to determine whether an earlier conviction after trial was for generic burglary. The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. I Petitioner Reginald Shepard was indicted under 18 U. S. C. § 922(g)(1), barring felons from possessing a firearm, and pleaded guilty. At sentencing the Government claimed that Shepard’s prior convictions raised his sentencing range from between 30 and 37 months (under the United States Sentencing Guidelines) to the 15-year minimum required by § 924(e), pointing to four prior convictions entered upon Shepard’s pleas of guilty under one of Massachusetts’s two burglary statutes. Whereas the Government said that each conviction represented a predicate ACCA offense of generic burglary, the District Court ruled that Taylor barred counting any of the prior convictions as predicates for the mandatory minimum. 125 F. Supp. 2d 562, 569 (Mass. 2000). In Taylor we read the listing of “burglary” as a predicate “violent felony” (in the ACCA) to refer to what we called “generic burglary,” an “unlawful or unprivileged entry into, or"
}
]
| [
{
"docid": "23250424",
"title": "",
"text": "1970 Ford F-350 dump truck without the consent of the owner in violation of Mo.Rev.Stat. § 569.080.1(2). After Johnson entered a plea of guilty, the Circuit Court of Jackson County, Missouri sentenced Johnson to five years’ imprisonment, but suspended the sentence pending a three-year period of probation. Johnson argues that this conviction is not a violent felony under § 924(e)(2)(B). We disagree. The Supreme Court has held that the determination of whether an offense is a violent felony requires a “categorical approach.” Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). When a sentencing court uses this categorical approach, it may look beyond the fact of conviction and the statutory definition of the offense to such sources as “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). Consequently, in determining whether the tampering charge qualifies as a violent felony, we can look to the charging document, which tells us that Johnson was convicted of knowingly operating a Ford F-350 dump truck without the consent of the owner. We conclude that the Missouri offense of “tampering by unlawful operation,” much like automobile theft, is a discrete offense which qualifies as a violent felony under § 942(e)(2)(B)(ii). In Sun Bear, we held that the Utah offense of attempted automobile theft is a crime of violence for purposes of U.S.S.G. § 4B1.1 because the attendant conduct and circumstances create a serious potential risk of physical injury to another. Sun Bear, 307 F.3d at 752-53. We subsequently applied the reasoning of Sun Bear to conclude that the Missouri offense of automobile theft is a violent felony for purposes of § 924(e)(2)(B)(ii) because it presents the same serious potential risk of physical injury to another. Sprouse, 394 F.3d at 580-81. The Missouri offenses of “tampering by operation” and “automobile theft” differ only with respect"
},
{
"docid": "22082141",
"title": "",
"text": "be committed on a particular occasion. Begay, 128 S.Ct. at 1584; see Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (adopting the \"categorical approach”). . See United States v. McCall, 439 F.3d 967, 974 (8th Cir.2006) (en banc) (analyzing an “overinclusive” state statute and remanding for the district court to determine whether the defendant’s prior convictions fell under the portion of the statute that qualified as a violent felony), rev’d on other grounds by Begay, 128 S.Ct. at 1581. Our conclusion that auto tampering, one of the two predicate offenses in this case, is not a crime of violence, means that Williams does not have two prior convictions for crimes of violence. Remand as per McCall remains necessary, however, to determine if Williams’s prior conviction for auto theft qualifies as a crime of violence. For purposes of determining Williams's base offense level, U.S.S.G. § 2K2.1(a)(4)(A) sets a base offense level of 20 if a defendant has a prior felony conviction for a crime of violence, while § 2K2.1(a)(6) sets the base offense level at 14 if he does not have a such a prior felony conviction. . Missouri courts often rely upon these comments in interpreting code provisions. See, e.g., State v. Lee Mech. Contrs., 938 S.W.2d 269, 272 (Mo. Banc. 1997); State v. Beishir, 646 S.W.2d 74, 79 (Mo. Banc 1983). . Under Missouri law, a person tampers in the first degree if he knowingly receives, possesses, sells, alters, defaces, destroys, or unlawfully operates an automobile without the owner’s consent. See Mo.Rev.Stat. § 569.080.1(2)."
},
{
"docid": "14802077",
"title": "",
"text": "a serious drug offense under 18 U.S.C. § 924(e)(2)(A). But he argues that his 1996 Missouri conviction for automobile tampering and his 1998 Kansas conviction for criminal threat were not violent felonies. That term is defined in 18 U.S.C. § 924(e)(2)(B), which provides in relevant part: (B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) ... otherwise involves conduct that presents a serious potential risk of physical injury to another. We review this issue de novo. United States v. Johnson, 417 F.3d 990, 995 (8th Cir.2005), cert. denied, — U.S. —, 127 S.Ct. 285, 166 L.Ed.2d 218 (2006). In determining whether an offense under state law is a violent felony for purposes of § 924(e)(2)(B), we apply the “formal categorical approach” adopted by the Supreme Court in Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), an analysis that focuses on the statutory elements of the offense rather than the particular facts underlying the defendant’s prior conviction. When applying § 924(e)(2)(B)(i), the issue is whether those elements included the use, attempted use, or threatened use of physical force against a person. When applying the “otherwise involves” provision in § 924(e)(2)(B)(ii), the issue is whether those elements “described conduct that necessarily entails a serious potential risk of physical injury.” United States v. McCall, 439 F.3d 967, 970 (8th Cir.2006) (en banc) (quotation omitted). An affirmative answer to either question means that the offense is eligible for the violent felony classification. When an offense is eligible for violent felony classification but the state criminal statute is over-inclusive — that is, the elements of the offense also encompass conduct that does not constitute a violent felony — the sentencing court must consider the facts underlying the defendant’s conviction to determine whether it was a violent felony for purposes of § 924(e)(2)(B). However, to avoid the practical difficulties and potential unfairness of retrying the prior case,"
},
{
"docid": "23047747",
"title": "",
"text": "LOKEN, Chief Judge. Timothy J. McCall pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court imposed the fifteen-year minimum prison sentence mandated by 18 U.S.C. § 924(e)(1) for a § 922(g)(1) offender who has three prior “violent felony” convictions. McCall appeals, arguing that the district court erred in concluding that his three prior felony convictions for driving while intoxicated in Missouri were violent felonies that trigger the § 924(e) enhancement. This issue requires us to construe and apply the definition of “violent felony” found in § 924(e)(2)(B)(ii): (B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .... (Emphasis added.) A panel of this court reversed the fifteen-year sentence, United States v. McCall, 397 F.3d 1028 (8th Cir.2005), concluding that it was bound by a prior panel’s decision that felony DWI offenses are not “crimes of violence” under an identically worded “otherwise involves” provision in U.S.S.G. § 4B 1.2(a)(2). See United States v. Walker, 393 F.3d 819 (8th Cir.2005). We granted the government’s petition for rehearing en banc to consider de novo whether a felony DWI conviction in Missouri is a violent felony under the “otherwise involves” provision in § 924(e)(2)(B)(ii). We conclude that felony driving while intoxicated is a violent felony. However, because the Missouri felony DWI offense includes non-driving conduct as well, we remand for further sentencing proceedings at which the government may seek to prove that McCall’s prior convictions were driving offenses, using the limited universe of evidence permitted by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). X. Many decisions of this court and our sister circuits have"
},
{
"docid": "2982389",
"title": "",
"text": "a high-speed chase with potential harm to innocent people, to the police, and to the thief himself.’ ” Id. at 999 (quoting Sprouse, 394 F.3d at 580-81). Because the Missouri statute is overinclusive, we applied the categorical approach developed in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine if the conduct underlying the conviction fell within the statutory category of tampering by operation. Because the charging document stated that Johnson’s conduct involved tampering by operation, we held that his conviction qualified as a crime of violence. Johnson, 417 F.3d at 997-99. After Johnson was decided, our court en banc revisited the definition of “violent felony” found in 18 U.S.C. § 924(e) (and by implication the definition of “crime of violence” in § 4B1.2) in United States v. McCall, 439 F.3d 967 (8th Cir.2006) (en banc). In McCall, we held that a finding of “serious potential risk” within the meaning of § 924(e)(2)(B)(ii) requires that, although physical injury need not be an element of the offense, “the inherent potential for harm must be present, if not in every violation, at least in a substantial portion of the circumstances made criminal by the statute.” Id. at 972. We have since affirmed that the potential for harm described in Johnson continues to qualify tampering by operation under the Missouri statute as a crime of violence after McCall. United States v. Adams, 442 F.3d 645, 646-47 (8th Cir.2006); cf. United States v. Livingston, 442 F.3d 1082, 1087 (8th Cir.2006) (following the reasoning of McCall and Johnson to hold that “breaking or entering a vehicle does not cross the line into what constitutes a violent felony” due to the “difference in the dangers inherent in operating a vehicle as opposed to merely possessing a vehicle”). In this case, the Presentence Investigation Report (“PSR”) cited the charging document underlying the 1995 tampering conviction to show that Bockes “knowingly and without consent of the owner possessed and unlawfully operated a motor vehicle.” The charging"
},
{
"docid": "14802078",
"title": "",
"text": "analysis that focuses on the statutory elements of the offense rather than the particular facts underlying the defendant’s prior conviction. When applying § 924(e)(2)(B)(i), the issue is whether those elements included the use, attempted use, or threatened use of physical force against a person. When applying the “otherwise involves” provision in § 924(e)(2)(B)(ii), the issue is whether those elements “described conduct that necessarily entails a serious potential risk of physical injury.” United States v. McCall, 439 F.3d 967, 970 (8th Cir.2006) (en banc) (quotation omitted). An affirmative answer to either question means that the offense is eligible for the violent felony classification. When an offense is eligible for violent felony classification but the state criminal statute is over-inclusive — that is, the elements of the offense also encompass conduct that does not constitute a violent felony — the sentencing court must consider the facts underlying the defendant’s conviction to determine whether it was a violent felony for purposes of § 924(e)(2)(B). However, to avoid the practical difficulties and potential unfairness of retrying the prior case, this inquiry is conducted by examining a limited universe of judicial documents to determine whether the state court jury found, or the defendant admitted, that he was guilty of conduct constituting a violent felony. See McCall, 439 F.3d at 973-74, applying Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143, and Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In these circumstances, if the defendant fails to object to fact statements in the presentence investigation report (PSR) establishing that a prior offense was a violent felony conviction, the government need not introduce at sentencing the documentary evidence that Taylor and Shepard otherwise require. McCall, 439 F.3d at 974; United States v. Menteer, 408 F.3d 445 (8th Cir.2005). A. The Automobile Tampering Conviction. In 1996, Reliford was convicted of first degree motor vehicle tampering, a Missouri offense defined as “knowingly receiving], possessing], selling] ... or unlawfully operating] an automobile ... without the consent of the owner.” Mo. Ann. Stat. § 569.080(1)(2). A violation of this statute is a violent felony"
},
{
"docid": "23047748",
"title": "",
"text": "sentence, United States v. McCall, 397 F.3d 1028 (8th Cir.2005), concluding that it was bound by a prior panel’s decision that felony DWI offenses are not “crimes of violence” under an identically worded “otherwise involves” provision in U.S.S.G. § 4B 1.2(a)(2). See United States v. Walker, 393 F.3d 819 (8th Cir.2005). We granted the government’s petition for rehearing en banc to consider de novo whether a felony DWI conviction in Missouri is a violent felony under the “otherwise involves” provision in § 924(e)(2)(B)(ii). We conclude that felony driving while intoxicated is a violent felony. However, because the Missouri felony DWI offense includes non-driving conduct as well, we remand for further sentencing proceedings at which the government may seek to prove that McCall’s prior convictions were driving offenses, using the limited universe of evidence permitted by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). X. Many decisions of this court and our sister circuits have construed the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii) since the provision was enacted as part of the Armed Career Criminal Act of 1984. The question recurs frequently and has a significant impact on an offender’s sentence. The statute was designed to implement an important principle of federal sentencing — violent career criminals who possess firearms should be severely punished. But the legislative history reviewed by the Supreme Court in Taylor, 495 U.S. at 581-90, 110 S.Ct. 2143, demonstrates that Congress struggled to define the types of violent felonies that should trigger the sentence enhancement. Subsection 924(e)(2)(B)(i) used language taken directly from the definition of a “crime of violence” in 18 U.S.C. § 16(a) — a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” But subsection 924(e)(2)(B)(ii), which added categories of violent or dangerous property crimes to the universe of violent felonies, used an odd structural amalgam — “is burglary ... or otherwise involves conduct that presents a serious potential risk"
},
{
"docid": "12681888",
"title": "",
"text": "ACCA, but he maintains his prior convictions for tampering with a motor vehicle and failure to return to confinement are not violent felonies under the ACCA. A. Tampering With a Motor Vehicle Following our recent en banc decision in United States v. McCall, 439 F.3d 967 (8th Cir.2006), when determining whether a prior conviction is a violent felony within the meaning of the “otherwise involves” provision in § 924(e)(2)(B)(ii), we “first determine whether the elements of that prior crime involved or described conduct that necessarily entails a serious potential risk of physical injury” to another. Id. at 970 (internal quotation omitted). In Missouri, a person commits the crime of tampering with a motor vehicle if “[h]e or she knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile ... without the consent of the owner thereof.” Mo.Rev.Stat. § 569.080.1(2). In United States v. Johnson, 417 F.3d 990, 997-99 (8th Cir.2005), we analyzed whether this offense is a violent felony for purposes of the ACCA. We compared the offense of tampering by possession to tampering by operation, and reasoned “tampering by operation repre sents an escalated, and more dangerous, form of tampering by possession.” Johnson, 417 F.3d at 998. Under Missouri law, “[tampering by possession ... differs from tampering by operation in that the former offense merely requires a defendant to enter an automobile in a manner consistent with possession while the latter offense requires a defendant to start the automobile’s engine.” Id. We went on to hold “the risks associated with tampering by operation are sufficient to warrant classifying it as a violent felony.” Id. at 999. Because the Missouri crime of tampering with a motor vehicle is “overinelusive” in that tampering by operation involves conduct that presents a serious potential risk of physical injury to another, while tampering by possession does not, we next look to the judicial record to determine whether Adams’s conduct involved tampering by operation. See McCall, 439 F.3d at 973-75 (noting the judicial record review is limited by Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990),"
},
{
"docid": "23047762",
"title": "",
"text": "while intoxicated. McCall’s PSR recited the fact of three prior felony convictions for “driving while intoxicated” but did not disclose whether he was convicted after trials or guilty pleas. The PSR recited underlying facts seeming to establish that in each case McCall was driving while intoxicated, but the facts were attributed to “police reports” and parole board “records,” documents that may not be used to establish a violent felony under the modified categorical ' approach mandated by Taylor and Shepard. Though McCall did not object to these PSR recitals, he did object to the § 924(e) enhancement. At sentencing, relying on our opinion in United States v. Jernigan, 257 F.3d 865, 867 (8th Cir.2001), both counsel and the district court understandably believed that the relevant inquiry was the conduct underlying the offenses. Neither counsel nor the court felt constrained by the more truncated inquiry mandated by Taylor and Shepard. Thus, the record on appeal includes no charging documents, no jury instructions, no written plea agreements, and no plea colloquies or judicial findings of the facts underlying a plea confirmed by McCall. In these circumstances, we conclude that the fact recitals in the PSR are not an adequate basis for affirming McCall’s sentence. This is not a case where the PSR described prior offense conduct without stating its documentary sources. In such cases, we have held that failure to object relieved the government of its obligation to introduce at sentencing the documentary evidence Taylor or Shepard requires. See United States v. Menteer, 408 F.3d 445, 446-47 (8th Cir.2005); United States v. Balanga, 109 F.3d 1299, 1304 & n. 7 (8th Cir.1997); accord United States v. Bregnard, 951 F.2d 457, 460 n. 3 (1st Cir.1991), cert. denied, 504 U.S. 973, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992). Nor is this a case where the PSR described conduct derived from documents Taylor or Shepard permit. Instead, the PSR expressly relied on police reports and probation records that would be inadmissible at sentencing under Taylor and Shepard. Timothy McCall objected to the § 924(e) enhancement. The minimum sentence mandated by that enhancement is severe,"
},
{
"docid": "14802079",
"title": "",
"text": "this inquiry is conducted by examining a limited universe of judicial documents to determine whether the state court jury found, or the defendant admitted, that he was guilty of conduct constituting a violent felony. See McCall, 439 F.3d at 973-74, applying Taylor, 495 U.S. at 601-02, 110 S.Ct. 2143, and Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In these circumstances, if the defendant fails to object to fact statements in the presentence investigation report (PSR) establishing that a prior offense was a violent felony conviction, the government need not introduce at sentencing the documentary evidence that Taylor and Shepard otherwise require. McCall, 439 F.3d at 974; United States v. Menteer, 408 F.3d 445 (8th Cir.2005). A. The Automobile Tampering Conviction. In 1996, Reliford was convicted of first degree motor vehicle tampering, a Missouri offense defined as “knowingly receiving], possessing], selling] ... or unlawfully operating] an automobile ... without the consent of the owner.” Mo. Ann. Stat. § 569.080(1)(2). A violation of this statute is a violent felony under the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii) if the defendant in fact operated the motor vehicle without the owner’s consent. Like vehicle theft, tampering by operation of the vehicle creates the risks of physical confrontation with the owner or police when the vehicle is taken and of a high-speed chase when the perpetrator attempts to escape. See United States v. Bockes, 447 F.3d 1090, 1092 (8th Cir.2006); Johnson, 417 F.3d at 999. However, some violations of the Missouri tampering statute are not violent felonies, such as mere possession of another person’s vehicle without consent. See United States v. Adams, 442 F.3d 645, 647 (8th Cir.2006), petition for cert. filed, Sept. 13, 2006. Therefore, a Missouri motor vehicle tampering conviction is a violent felony for purposes of 18 U.S.C. § 924(e) only if the government proves at sentencing, by means of evidence authorized by McCall, that the offense conduct included tampering by operation. In this case, Reliford argues the sentencing record is insufficient to establish that his 1996 conviction involved tampering by operation."
},
{
"docid": "23047761",
"title": "",
"text": "violent felony if “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” 495 U.S. at 602, 110 S.Ct. 2143. In Shepard, the Court extended this approach to guilty plea convictions but limited the government’s proof that the defendant pleaded guilty to a generic burglary offense to “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” 125 S.Ct. at 1263. In applying the “otherwise involves” provision in § 924(e)(2)(B)(ii), we deal with a somewhat different type of overinclusiveness. But we conclude that the analysis adopted in Taylor and Shepard should nonetheless apply. Therefore, the district court may look to the judicial record, as limited by Taylor and Shepard, to determine whether juries were required to find, or guilty pleas necessarily rested on the fact, that McCall’s three prior convictions involved driving while intoxicated. McCall’s PSR recited the fact of three prior felony convictions for “driving while intoxicated” but did not disclose whether he was convicted after trials or guilty pleas. The PSR recited underlying facts seeming to establish that in each case McCall was driving while intoxicated, but the facts were attributed to “police reports” and parole board “records,” documents that may not be used to establish a violent felony under the modified categorical ' approach mandated by Taylor and Shepard. Though McCall did not object to these PSR recitals, he did object to the § 924(e) enhancement. At sentencing, relying on our opinion in United States v. Jernigan, 257 F.3d 865, 867 (8th Cir.2001), both counsel and the district court understandably believed that the relevant inquiry was the conduct underlying the offenses. Neither counsel nor the court felt constrained by the more truncated inquiry mandated by Taylor and Shepard. Thus, the record on appeal includes no charging documents, no jury instructions, no written plea agreements, and no plea colloquies or judicial findings of the facts"
},
{
"docid": "12681887",
"title": "",
"text": "RILEY, Circuit Judge. Ronnie Delvon Adams (Adams) appeals the district court’s decision to sentence him as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). We affirm. I. DISCUSSION The ACCA provides a sentence enhancement for individuals who have at least three prior convictions for a “violent felony.” Id. The ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... that-® has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) ... otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). The district court sentenced Adams as an armed career criminal because he has pri- or convictions for (1) tampering with a motor vehicle, in violation of Mo.Rev.Stat. § 569.080.1(2); (2) failure to return to confinement, in violation of Mo.Rev.Stat. § 575.220; and (3) two second-degree assaults. Adams does not challenge that his two assault convictions constitute violent felonies under the ACCA, but he maintains his prior convictions for tampering with a motor vehicle and failure to return to confinement are not violent felonies under the ACCA. A. Tampering With a Motor Vehicle Following our recent en banc decision in United States v. McCall, 439 F.3d 967 (8th Cir.2006), when determining whether a prior conviction is a violent felony within the meaning of the “otherwise involves” provision in § 924(e)(2)(B)(ii), we “first determine whether the elements of that prior crime involved or described conduct that necessarily entails a serious potential risk of physical injury” to another. Id. at 970 (internal quotation omitted). In Missouri, a person commits the crime of tampering with a motor vehicle if “[h]e or she knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile ... without the consent of the owner thereof.” Mo.Rev.Stat. § 569.080.1(2). In United States v. Johnson, 417 F.3d 990, 997-99 (8th Cir.2005), we analyzed whether this offense is a violent felony for purposes of the ACCA. We compared the offense of tampering by possession to"
},
{
"docid": "2982390",
"title": "",
"text": "requires that, although physical injury need not be an element of the offense, “the inherent potential for harm must be present, if not in every violation, at least in a substantial portion of the circumstances made criminal by the statute.” Id. at 972. We have since affirmed that the potential for harm described in Johnson continues to qualify tampering by operation under the Missouri statute as a crime of violence after McCall. United States v. Adams, 442 F.3d 645, 646-47 (8th Cir.2006); cf. United States v. Livingston, 442 F.3d 1082, 1087 (8th Cir.2006) (following the reasoning of McCall and Johnson to hold that “breaking or entering a vehicle does not cross the line into what constitutes a violent felony” due to the “difference in the dangers inherent in operating a vehicle as opposed to merely possessing a vehicle”). In this case, the Presentence Investigation Report (“PSR”) cited the charging document underlying the 1995 tampering conviction to show that Bockes “knowingly and without consent of the owner possessed and unlawfully operated a motor vehicle.” The charging document, of course, is acceptable documentary evidence as contemplated by Shepard. See 544 U.S. at 26, 125 S.Ct. 1254. Although Bockes objected to the characterization of the conviction in the PSR as a crime of violence, he did not object to the underlying facts recited from the charging document. Because Bockes did not object and this is “a case where the PSR described conduct derived from documents Taylor or Shepard permit,” the Government was not obliged “to introduce at sentencing the documentary evidence Taylor or Shepard requires.” McCall, 439 F.3d at 974. Therefore, the district court did not err in finding that Bockes’s conviction for tampering by operation under the Missouri statute is a crime of violence for § 4B1.2 purposes. B. Use of Mandatory Sentencing Guidelines Because Bockes preserved his challenge to the use of mandatory guidelines with a timely Blakely objection to the sentencing court, we review for harmless error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc). Bockes’s sentencing guidelines range was ultimately determined solely from his"
},
{
"docid": "14802080",
"title": "",
"text": "under the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii) if the defendant in fact operated the motor vehicle without the owner’s consent. Like vehicle theft, tampering by operation of the vehicle creates the risks of physical confrontation with the owner or police when the vehicle is taken and of a high-speed chase when the perpetrator attempts to escape. See United States v. Bockes, 447 F.3d 1090, 1092 (8th Cir.2006); Johnson, 417 F.3d at 999. However, some violations of the Missouri tampering statute are not violent felonies, such as mere possession of another person’s vehicle without consent. See United States v. Adams, 442 F.3d 645, 647 (8th Cir.2006), petition for cert. filed, Sept. 13, 2006. Therefore, a Missouri motor vehicle tampering conviction is a violent felony for purposes of 18 U.S.C. § 924(e) only if the government proves at sentencing, by means of evidence authorized by McCall, that the offense conduct included tampering by operation. In this case, Reliford argues the sentencing record is insufficient to establish that his 1996 conviction involved tampering by operation. We disagree. Paragraph 33 of the PSR recited that Reliford was arrested while “driving” a stolen vehicle and that he later admitted to “driving the stolen vehicles and knowing the vehicles were stolen.” Reliford filed no objection to paragraph 33. Therefore, the district court did not err in concluding that his tampering conviction involved tampering by operation, a violent felony within the meaning of 18 U.S.C. § 924(e)(2)(B)(ii). B. The Criminal Threat Conviction. Paragraph 36 of Reliford’s PSR recited that in April 1998 he was convicted of a Kansas charge that he “did unlawfully, willfully and feloniously threaten to commit violence and communicated said threat with intent to terrorize another [person].” At sentencing, Reliford objected to the underlying facts set forth in paragraph 36 but admitted that this conviction included as an element “the making of a threat to commit violence.” On appeal, Reliford argues that this was not a violent felony conviction because a “conviction for threats ... presents neither an inherent potential for harm to others nor carries a serious risk of physical"
},
{
"docid": "14802076",
"title": "",
"text": "LOKEN, Chief Judge. Antwaen Reliford pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). At sentencing, the district court concluded that he is an armed career criminal, making him subject to a mandatory minimum fifteen-year prison sentence and an advisory guidelines base offense level of 34. See 18 U.S.C. § 924(e); U.S.S.G. § 4B1.4(b)(3)(A). The court sentenced Reliford to 188 months in prison, the bottom of his advisory guidelines range. Re-liford appeals, arguing that the government failed to prove that his prior state court convictions for tampering by operation and for criminal threat were violent felonies under § 924(e), and that his sentence is unreasonable. We affirm. I. The Armed Career Criminal Issues A person convicted of being a felon in possession of a firearm is an armed career criminal for sentencing purposes if he has three prior convictions that were either “serious drug offense[s]” or “violent felonies].” 18 U.S.C. § 924(e)(1). Reliford concedes that his prior Missouri conviction for sale of a controlled substance was a serious drug offense under 18 U.S.C. § 924(e)(2)(A). But he argues that his 1996 Missouri conviction for automobile tampering and his 1998 Kansas conviction for criminal threat were not violent felonies. That term is defined in 18 U.S.C. § 924(e)(2)(B), which provides in relevant part: (B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) ... otherwise involves conduct that presents a serious potential risk of physical injury to another. We review this issue de novo. United States v. Johnson, 417 F.3d 990, 995 (8th Cir.2005), cert. denied, — U.S. —, 127 S.Ct. 285, 166 L.Ed.2d 218 (2006). In determining whether an offense under state law is a violent felony for purposes of § 924(e)(2)(B), we apply the “formal categorical approach” adopted by the Supreme Court in Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), an"
},
{
"docid": "23250423",
"title": "",
"text": "34 if the armed career criminal used or possessed the firearm in connection with a “crime of violence.” u.S. Sentencing Guidelines Manual § 4B1.4(b)(3)(A). For purposes of § 4B1.4, the term “crime of violence” is defined in § 4B1.2(a). The statutory definition of “violent felony” is viewed as interchangeable with the guidelines definition of “crime of violence.” United States v. Johnson, 326 F.3d 934, 936 (8th Cir.2003) (“The definitions of ‘violent felony’ and ‘crime of violence’ are almost identical^]”). Therefore, in determining whether a de fendant qualifies as an armed career criminal under the ACCA, we are also bound by case law defining a crime of violence under § 4B1.2. United States v. Sprouse, 394 F.3d 578, 580 (8th Cir.2005) (“Because the definitions of crime of violence and violent felony are identical, the same analysis applies in determining whether [a defendant’s] convictions fall within the [ACCA]”.). In June 1998, the State of Missouri filed an amended information charging Johnson as a persistent offender with tampering in the first degree by knowingly and unlawfully operating a 1970 Ford F-350 dump truck without the consent of the owner in violation of Mo.Rev.Stat. § 569.080.1(2). After Johnson entered a plea of guilty, the Circuit Court of Jackson County, Missouri sentenced Johnson to five years’ imprisonment, but suspended the sentence pending a three-year period of probation. Johnson argues that this conviction is not a violent felony under § 924(e)(2)(B). We disagree. The Supreme Court has held that the determination of whether an offense is a violent felony requires a “categorical approach.” Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). When a sentencing court uses this categorical approach, it may look beyond the fact of conviction and the statutory definition of the offense to such sources as “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1263, 161"
},
{
"docid": "23047760",
"title": "",
"text": "98 S.W.3d 548, 550-51 (Mo. 2003). This makes the felony DWI offense overinclusive, for purposes of the “otherwise involves” provision in § 924(e)(2)(B)(ii), because it criminalizes non-driving conduct that does not necessarily present a serious risk of physical injury to others. For example, the inebriated car owner who recognizes his impaired condition and turns on the engine of a parked vehicle to keep warm while sobering is not risking physical harm to others but is violating the Missouri DWI statutes as construed. Thus, as the Tenth Circuit concluded in construing Nevada’s similar felony DWI statute, not every felony DWI conviction in Missouri is a violent felony under § 924(e)(2)(B)(ii). See Moore, 420 F.3d at 1224. IV. In Taylor, the Supreme Court considered how to apply § 924(e)(2)(B)(ii) to a state burglary statute that was overinclusive, that is, that defined burglary to include a broader range of conduct than generic burglary. Modifying its formal categorical approach in order to avoid excluding all convictions under such a statute, the Court held that the prior offense is a violent felony if “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” 495 U.S. at 602, 110 S.Ct. 2143. In Shepard, the Court extended this approach to guilty plea convictions but limited the government’s proof that the defendant pleaded guilty to a generic burglary offense to “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” 125 S.Ct. at 1263. In applying the “otherwise involves” provision in § 924(e)(2)(B)(ii), we deal with a somewhat different type of overinclusiveness. But we conclude that the analysis adopted in Taylor and Shepard should nonetheless apply. Therefore, the district court may look to the judicial record, as limited by Taylor and Shepard, to determine whether juries were required to find, or guilty pleas necessarily rested on the fact, that McCall’s three prior convictions involved driving"
},
{
"docid": "23188573",
"title": "",
"text": "the INA’s treatment of aggravated felonies, the ACCA defines “violent felony,” in part, by reference to a list of exemplary offenses. See id. § 924(e)(2)(B)®. For determining whether a prior conviction subsumes a violent felony (and, thus, a predicate offense for ACCA purposes), the Supreme Court devised a categorical approach. See Taylor, 495 U.S. at 600, 110 S.Ct. 2143. This categorical approach consists of two steps. See id. at 602, 110 S.Ct. 2143. Where a violation of the statute underlying the prior conviction necessarily involves every element of an offense listed in section 924(e)(2)(B)(ii), the mere fact of conviction establishes that the putative predicate crime was a violent felony. Id. Where, however, the underlying statute spans, but is broader than, the listed offense (i.e., where it encompasses some conduct that would constitute a violent felony and some conduct that would not), the putative predicate offense qualifies as a violent felony only “where a jury was actually required to find all the elements” of the listed offense. Id. In that circumstance, a sentencing court charged with determining what the jury actually was required to find cannot retry the original case but, rather, must restrict its inquiry to the record of conviction, including the charging document and jury instructions. See id. The Court later extended the categorical approach to cases in which the prior conviction results from a guilty plea rather than from a jury verdict. See Shepard v. United States, 544 U.S. 13, 19-20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In rejecting the government’s contention that a sentencing court could rest its characterization of the putative predicate offense on facts contained in a police report, the Justices reiterated that the appropriate inquiry is “confined to records of the convicting court.” Id. at 23, 125 S.Ct. 1254. That inquiry thus includes “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Id. at 16, 125 S.Ct. 1254. In other words, a sentencing court may conclude that a guilty plea subsumed a violent felony only when"
},
{
"docid": "12681889",
"title": "",
"text": "tampering by operation, and reasoned “tampering by operation repre sents an escalated, and more dangerous, form of tampering by possession.” Johnson, 417 F.3d at 998. Under Missouri law, “[tampering by possession ... differs from tampering by operation in that the former offense merely requires a defendant to enter an automobile in a manner consistent with possession while the latter offense requires a defendant to start the automobile’s engine.” Id. We went on to hold “the risks associated with tampering by operation are sufficient to warrant classifying it as a violent felony.” Id. at 999. Because the Missouri crime of tampering with a motor vehicle is “overinelusive” in that tampering by operation involves conduct that presents a serious potential risk of physical injury to another, while tampering by possession does not, we next look to the judicial record to determine whether Adams’s conduct involved tampering by operation. See McCall, 439 F.3d at 973-75 (noting the judicial record review is limited by Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005)). According to the charging document introduced with the government’s sentencing memorandum in the case at bar, Adams “knowingly and without the consent of the owner unlawfully operated an automobile.” Because Adams’s conduct involved tampering by operation, we hold the district court did not err in concluding Adams’s conviction qualified as a violent felony predicate offense under the ACCA. See Johnson, 417 F.3d at 997-99. B. Failure to Return to Confinement In Missouri, a person commits the crime of failure to return to confinement if, “while serving [a] sentence for any crime wherein he is temporarily permitted to go at large without guard, he purposely fails to return to confinement when he is required to do so.” Mo.Rev.Stat. § 575.220.1. In United States v. Abernathy, 277 F.3d 1048 (8th Cir.2002), we held “walkaway” escape constitutes a violent felony under the ACCA. Id. at 1051 (relying on United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001), which held a “walkaway”"
},
{
"docid": "2982388",
"title": "",
"text": "consent of the 'owner there- of.” Mo.Rev.Stat. § 569.080.1(2). The statute thus criminalizes both tampering by operation and tampering by possession. We have held that a subset of activity criminalized by this statute, tampering by operation, is a “violent felony” for purposes 18 U.S.C. § 924(e) and, thus, a crime of violence for purposes of § 4B1.2. United States v. Johnson, 417 F.3d 990, 997-99 (8th Cir.2005), reh’g denied, No. 04-1839 (8th Cir. May 3, 2006). In Johnson, we recognized that tampering by operation involves exactly the same risk-creating elements as theft or attempted theft of a vehicle, which we held to be crimes of violence in United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir.2002). Like vehicle theft, tampering by operation “creates the risk of a violent confrontation with the vehicle’s owner or with law enforcement, places the criminal in control of a potentially deadly or dangerous weapon, ... and makes it likely that ‘the thief may be pursued, or perceive a threat of pursuit, and drive recklessly, turning any pursuit into a high-speed chase with potential harm to innocent people, to the police, and to the thief himself.’ ” Id. at 999 (quoting Sprouse, 394 F.3d at 580-81). Because the Missouri statute is overinclusive, we applied the categorical approach developed in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine if the conduct underlying the conviction fell within the statutory category of tampering by operation. Because the charging document stated that Johnson’s conduct involved tampering by operation, we held that his conviction qualified as a crime of violence. Johnson, 417 F.3d at 997-99. After Johnson was decided, our court en banc revisited the definition of “violent felony” found in 18 U.S.C. § 924(e) (and by implication the definition of “crime of violence” in § 4B1.2) in United States v. McCall, 439 F.3d 967 (8th Cir.2006) (en banc). In McCall, we held that a finding of “serious potential risk” within the meaning of § 924(e)(2)(B)(ii)"
}
]
|
643810 | be barred by the eleventh amendment. Courts have repeatedly faced suits by Medicaid providers challenging the legal adequacy of reimbursement rates and, in examining the injuries in relation to the retroactive/prospective distinction, have reached like conclusions. See, e.g., Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 88 (2nd Cir.1991); Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093, 1098 (2nd Cir.1991); N.Y. State Ass’n for Retarded Children v. Carey, 727 F.2d 240, 243 (2nd Cir.1984); Port Chester Nursing Home v. Axelrod, 732 F.Supp. 440, 444 (S.D.N.Y.1990); Friedman v. Perales, 616 F.Supp. 1363, 1368 (S.D.N.Y.1985); see also Kansas Health Care Ass’n v. Kansas Dept. of Social and Rehabilitation Services, 754 F.Supp. 1502, 1517, n. 4; REDACTED Recently, the Second Circuit noted that Congress demonstrated its intention to bar provider suits against states for past compensation by its repeal of an amendment to the Medicaid Act penalizing states that failed to waive their eleventh amendment immunity to damage suits by Medicaid providers. See Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 88 (2nd Cir.1991). Plaintiff, however, argues that under New York law Medicaid rates are only “provisional pending the completion of an audit.” 14 N.Y.C.R.R. § 577.7(d). Since no audit of Rye Psychiatric’s reimbursement rates has been completed since 1986, plaintiff contends that its Medicaid reimbursements from January 1, 1987 through July 2,1991 represent a present, continuing injury until the rates are made “final” by an audit. | [
{
"docid": "23339183",
"title": "",
"text": "110 S.Ct. 3212, 110 L.Ed.2d 660 (1990); Nebraska Health Care Ass’n v. Dunning, 778 F.2d 1291, 1294 (8th Cir.1985) (state must conduct objective analysis or study to support its findings and assurances), cert. denied, 479 U.S. 1063, 107 S.Ct. 947, 93 L.Ed.2d 996 (1987). . Pinnacle dealt with nursing homes that challenged adjustments made by the State of New York in connection with Medicaid reimbursements. Among other things, the Court of Appeals held that the adjustments to the Medicaid reimbursement plan were invalid because no findings were made which established a nexus between the cost of operating efficient and economical nursing facilities and the proposed re imbursement rates. Pinnacle Nursing Home, 928 F.2d at 1314-15. . At oral argument, counsel for DPW insisted repeatedly that DPW had made findings in compliance with this requirement. Despite persistent questioning from the court, however, counsel failed to point to a single specific finding in the record that would satisfy DPW’s obligations. Neither have we found such a finding in the documents and testimony to which counsel referred us on this point. See, e.g., Transcript of Oral Argument of January 10, 1991 at 6-16. See also id. at 82. Counsel subsequently conceded outright that DPW had no \"written findings.” Id. at 86. . The injunctive relief ordered by the district court in its February 21, 1990 order reads as follows: AND NOW, this 21st day of February, 1990, it is ORDERED: That, pending final revision of its Medicaid plan in conformity with this court’s Memorandum and Order of January 24, 1990, the defendants shall, with respect to all of plaintiffs bills paid on or after January 25, 1990, utilize a payment rate of $3,643.09. IT IS FURTHER ORDERED that if it is later finally determined, either in this litigation or in the implementation of an acceptable revised medical assistance plan, that the amounts received by plaintiff pursuant to this Order are excessive, plaintiff shall promptly refund the excess, either by payment or by credit against future entitlement. (App. 31). . The order which the district court entered in each of the Hospitals’ pending cases"
}
]
| [
{
"docid": "7852782",
"title": "",
"text": "were provided with sufficient notice of potential exposure to personal liability. The following aspects of the present case attest to defendants’ notice of individual capacity claims: Yorktown’s complaint sought punitive damages, which are only available in individual capacity suits, see Smith v. Wade, 461 U.S. 30, 35-36 & n. 5, 103 S.Ct. 1625, 1629-30 & n. 5, 75 L.Ed.2d 632 (1983); Shabazz, 852 F.2d at 700, and defendants claimed qualified immunity, a defense unavailable to officials in their official capacity, Kentucky v. Graham, 473 U.S. at 167, 105 S.Ct. at 3106. Although Yorktown’s individual capacity claims survive the Eleventh Amendment bar, they fail for other reasons. Plaintiff’s first claim — that the Commissioner denied its due process right to payment for services rendered — fails for lack of a cognizable property interest. Yorktown has not demonstrated a legitimate claim of entitlement to the payments withheld. See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54, 58-59 (2d Cir. 1985). Property interests in Medicaid payment of the sort necessary to sustain Yorktown’s claim must derive from federal or state law. Federal law, however, requires that state Medicaid plans “provide for procedures of prepayment and postpayment claims review, including review of appropriate data with respect to the ... provider of service.” 42 U.S.C. § 1396a(a)(37)(B) (1988). In compliance with this requirement, DSS promulgated regulations authorizing it to audit, verify, and withhold payment for claims submitted by Medicaid providers pending a DSS final determination. See 18 N.Y.C.R.R. §§ 515.6, 540.8(a)(1), 540.11 (1988) & § 515.7 (1983) (repealed effective June 6, 1988 and replaced in part by § 518.7 (1988)). Thus, Yorktown has no property interest grounded in either the Medicaid Act or New York regulations to payment for claims pending investigation to determine illegality. See Tekkno Laboratories, 933 F.2d at 1098; see also S & D Maintenance Co. v. Goldin, 844 F.2d 962, 968-70 (2d Cir.1988). But see Tekkno Laboratories, 933 F.2d at 1099-1100 (Oakes, C.J., concurring). DSS, however, may not withhold payment indefinitely without some"
},
{
"docid": "9916316",
"title": "",
"text": "jurisdiction to grant in light of the Eleventh Amendment. Finally, we note that the Injunctive Order prohibits the State from withholding payment of Tekkno’s claims “pending the resolution of this lawsuit.” Though that provision could have had some prospective effect if Tekkno had submitted new claims after November 14, it appears to have had no such effect since (a) the record does not indicate that any new claims were submitted, and (b) the record reveals that Tek-kno was terminated as a Medicaid provider as of December 1,1990. To the extent that the injunction was intended to have, or may have had, prospective effect, we note two difficulties with the assessment of Tek-kno’s likelihood of success on the merits. First, in making its assessment, the district court stated that it was persuaded by Patchogue Nursing Center v. Bowen, 797 F.2d 1137, 1144-45 (2d Cir.1986), cert. denied, 479 U.S. 1030, 107 S.Ct. 873, 93 L.Ed.2d 828 (1987), and Oberlander v. Perales, 740 F.2d 116, 120 (2d Cir.1984), that “plaintiffs like Tekkno have a constitutionally protected property interest in reimbursement for Medicaid services already performed.” January 7 Opinion at 11. Neither of those cases, however, involved the State’s withholding of payments pending investigation. Rather, Oberlander involved changes in Medicaid reimbursement rates, and we ruled that under state law the provider has no property interest in future reimbursements; and Patchogue involved the termination of the providers’ participation in the program. See also Kelly Rare, Ltd. v. O’Rourke, 930 F.2d 170, 175 (2d Cir.1991) (Medicaid providers in New York have no property interest in continuous participation in Medicaid programs). Second, neither of these authorities stands for the proposition that, where the State gives notice that it is withholding payment pending an investigation of billings it has reason to suspect, provision of a hearing to be held after that notice would not suffice to satisfy the Due Process Clause. See, e.g., FDIC v. Mallen, 486 U.S. 230, 240-47, 108 S.Ct. 1780, 1787-91, 100 L.Ed.2d 265 (1988); id. at 240, 108 S.Ct. at 1787 (“An important government interest, accompanied by a substantial assurance that the deprivation is"
},
{
"docid": "9645782",
"title": "",
"text": "to condition receipt of Medicaid funds on a waiver of state sovereign immunity. Indeed, Congress has rejected the inclusion of such a statement in the Act. In 1975 Congress amended the Act to require states to waive any Eleventh Amendment immunity from suit for violations of the Act. See Pub.L. 94-182, § 111, 89 Stat. 1054; H.R.Rep. No. 94-1122, at 4. The provision generated tremendous opposition from the states, however, and was repealed during the next session of Congress. Pub.L. 94-522, 90 Stat. 2540. Plaintiffs direct us to no language in the Act that represents an unequivocal indication by Congress that states accepting federal Medicaid funds do so on condition that they have knowingly waived their Eleventh Amendment protection. The Supreme Court's 1990 decision in Wilder does not affect that analysis. See Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 88 (2d Cir.1991) (noting that even after Wilder the Boren Amendment \"does not authorize retroactive suits for the recovery of compensation due\"). In Wilder, as noted above, the Supreme Court held that \"the Boren Amendment imposes a binding obligation on States participating in the Medicaid program to adopt reasonable and adequate rates and that this obligation is enforceable under § 1983 by health care providers.” 496 U.S. at 512, 110 S.Ct. at 2518-19. The Court did not address any Eleventh Amendment issue, and certainly did not hold that by accepting funds under the Medicaid Act a state waives its immunity. Moreover, the plaintiffs in Wilder were only seeking prospective injunctive relief against state officials, see id. at 505, 110 S.Ct. at 2515, and thus no Eleventh Amendment issue was presented (unlike here, where the district court awarded plainly retrospective relief). Wilder did not hold that a provider can sue under section 1983 in federal court to obtain an order imposing retrospective relief that otherwise would be barred by the Eleventh Amendment. Accordingly, Wilder does not dictate the outcome here. . Deferring resolution of this potentially unnecessary issue is consistent with the longstanding rule that constitutional questions should not be resolved unless necessary to the decision. See, e.g., I A."
},
{
"docid": "9645781",
"title": "",
"text": "health care providers under section 1983. Plaintiffs do not meaningfully contest either contention. We agree with Defendants’ view on these issues. Under the Spending Clause waiver theory, a state may waive its sovereign immunity by accepting federal funds. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1, 87 L.Ed.2d 171 (1985) (\"a State may effectuate a waiver of its constitutional immunity by ... waiving its immunity to suit in the context of a particular federal program”); Sandoval, 197 F.3d at 492-93. But a Spending Clause waiver requires an “unequivocal indication” by Congress that a State accepting funds thereby waives its claim to immunity' — either \" ‘by the most express language or by such overwhelming implication from the text as (will) leave no room for any other reasonable construction.' ” Edelman, 415 U.S. at 673, 94 S.Ct. at 1347 (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)). The Medicaid Act contains no clear statement of intent to condition receipt of Medicaid funds on a waiver of state sovereign immunity. Indeed, Congress has rejected the inclusion of such a statement in the Act. In 1975 Congress amended the Act to require states to waive any Eleventh Amendment immunity from suit for violations of the Act. See Pub.L. 94-182, § 111, 89 Stat. 1054; H.R.Rep. No. 94-1122, at 4. The provision generated tremendous opposition from the states, however, and was repealed during the next session of Congress. Pub.L. 94-522, 90 Stat. 2540. Plaintiffs direct us to no language in the Act that represents an unequivocal indication by Congress that states accepting federal Medicaid funds do so on condition that they have knowingly waived their Eleventh Amendment protection. The Supreme Court's 1990 decision in Wilder does not affect that analysis. See Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 88 (2d Cir.1991) (noting that even after Wilder the Boren Amendment \"does not authorize retroactive suits for the recovery of compensation due\"). In Wilder, as noted above, the Supreme Court held that \"the Boren"
},
{
"docid": "6406615",
"title": "",
"text": "federal courts have “approved of the use of statistical sampling as a means for auditing records and establishing adjudicative facts.” Defs.’ Prop. Findings and Conclusions at 142. But none of these cases provide support for the use of sampling methods in the performance of an accounting, which is the issue presently before the Court. Three of the cases cited by Interior involved challenges to sampling methods used by federal or state health officials in auditing Medicaid payment claims. In Georgia v. Califano, 446 F.Supp. 404 (N.D.Ga.1977), the U.S. Department of Health, Education and Welfare (HEW) conducted an audit of Medicaid reimbursements it had made to the Georgia Department of Human Services (DHR). The audit, which was conducted on the basis of random statistical samples of claims made by DHR, revealed that Georgia had overpaid some Medicaid claims. Extrapolating from the sample results, HEW demanded a refund of some of the reimbursements it had made to DHR. DHR filed suit under the APA, claiming that HEW’s actions were arbitrary and capricious. The district court granted summary judgment for HEW, finding that HEW had utilized a “valid audit technique” in its audit of DHR’s payment claims. Id. at 409. In Illinois Physicians Union v. Miller, 675 F.2d 151 (7th Cir.1982), the state department of public aid conducted an audit, involving the use of statistical sampling, of a physician participating in the state Medicaid program. Having determined that it had overpaid the physician, the state filed a claim for recoupment. The physician mounted a due process challenge to the use of statistical sampling in the performance of a Medicaid audit. Citing the Califano decision, the Seventh Circuit affirmed the district court’s judgment in favor of the state. Id. at 155. Finally, in Yorktown Medical Laboratory v. Perales, 948 F.2d 84 (2d Cir.1991), a clinical laboratory mounted a due process challenge to the state’s use of sampling in an audit of the laboratory’s Medicaid payment claims. Citing Miller, the Second Circuit affirmed the district court’s award of summary judgment to the state, finding that the sampling technique used satisfied the balancing test set forth"
},
{
"docid": "7852774",
"title": "",
"text": "OAKES, Chief Judge: Yorktown Medical Laboratory, Inc. (“Yorktown”), a Medicaid provider, brought an action pursuant to 42 U.S.C. § 1983 against the New York State Department of Social Services (“DSS”) and the DSS Commissioner, Cesar A. Perales, alleging that DSS’s withholding of payment for claims constituted a violation of the Due Process Clause of the Fourteenth Amendment. The defendants filed a summary judgment motion arguing that the plaintiff had failed to demonstrate a constitutionally protected property interest, the Eleventh Amendment barred recovery, and the Commissioner was protected by qualified immunity. Chief Judge Charles L. Brieant of the United States District Court for the Southern District of New York granted the motion on the grounds that Yorktown had not established that it had a constitutionally protected property interest. On appeal, Yorktown contends that (1) it has a constitutionally protected property interest in payment for services rendered; (2) the statistical sampling techniques employed by DSS for calculating overcharging in Yorktown’s Medicaid claims violated its rights under the Due Process Clause; and (3) the delays in according it a post-deprivation hearing violated its due process rights. We affirm the district court ruling for the following reasons. To the extent that Yorktown’s suit is against DSS and Commissioner Perales in his official capacity, we find, as we did in Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093, 1097-98 (2d Cir.1991), that the Eleventh Amendment bars the federal courts from granting a retroactive award to a Medicaid provider that requires payment from the state treasury. To the extent that this suit seeks to impose personal liability on Cesar A. Pe-rales, we find, as did the district court, that Yorktown has failed to establish that it had a cognizable property interest. I. BACKGROUND Yorktown, a clinical laboratory, served as a Medicaid provider until May 1988. In a March 4, 1986 letter, DSS informed Yorktown that payment for current and future claims would be withheld pending an investigation and verification of past claims. Yorktown inquired as to the basis of the investigation; and, in a May 20,1986 letter, DSS replied that evidence existed that Yorktown had misused"
},
{
"docid": "17371541",
"title": "",
"text": "for services provided before the date of the court’s injunction was beyond its authority because of the limitation of its power under the Eleventh Amendment. Id. We agree with the reasoning of the Fourth and Seventh Circuits in the cases cited. Finally, we address plaintiffs’ misplaced reliance on our decision in Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093 (2d Cir.1991). In Tekkno Laboratories, the Commissioner withheld payment of claims to Tekkno pending a review and verification of their propriety. Id. at 1094. The district court granted Tekkno’s motion for a preliminary injunction prohibiting the withholding of payment. Id. at 1095. In overturning the grant of an injunction, we held that the order to the Commissioner to repay funds withheld prior to the date of the injunction was an exercise of power violative of the Eleventh Amendment. Id. at 1098. Seizing on our comment that the district court’s order “could have had some prospective effect if Tekkno had submitted new claims after” the date of the order, the instant plaintiffs contend that Tekkno Laboratories stands for the proposition that the proper boundary between retroactive and prospective relief is the date of claim submission. This contention ignores the difference in Tekkno’s underlying claim from the claim before us now. We held there that the Eleventh Amendment barred the district court from directing the state to release moneys subject to withholding. Although the injunction could have required payment on future claims, it had no such effect because no new claims were submitted and Tekkno had been later terminated as a Medicaid provider. There claim submission was the dividing line between retroactive and prospective relief because the issue was the propriety of DSS withholding payments pending review not, as here, whether a particular service underlying a claim was reimbursable at a particular rate. Moreover, that the Department can delay making payment while a claim is verified does not change the underlying fact that the verification must consider the facts and reimbursement regulations in existence when the service was provided. The fact that administrative requirements must be satisfied before the amount of reimbursement is"
},
{
"docid": "1398351",
"title": "",
"text": "fiscal year 1992 has ended, any relief Plaintiffs • could recover is necessarily retrospective in nature. Both sides agree that the Eleventh Amendment deprives federal courts of jurisdiction to adjudicate claims for retrospective, monetary relief from a state governmental entity, and claims for declaratory relief which would have the same effect. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Claims for purely prospective, injunctive relief may be adjudicated' without running afoul of the Eleventh Amendment.. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). A. Possible Outstanding Claims 1 Plaintiffs offer affidavits averring that the Defendant state officials have not received or paid all Medicaid reimbursement claims for fiscal year 1992. The Affidavits do not identify specific claims by provider, date or amount. Plaintiffs’ evidence shows, at best, that some claims for services rendered by some unidentified providers in fiscal year 1992 may not have been submitted. Such claims may be submitted as late as qne year after the service is provided. Plaintiffs have shown further that there are ongoing eligibility disputes, so that at any given time it is likely that there are unpaid claims several months old. The Plaintiffs have not identified any specific claims owing to the six named Plaintiff nursing facilities, or to any members of the Plaintiff Association. The Defendants have offered affidavits averring that all submitted claims for fiscal year 1992 have been reimbursed or otherwise resolved. The Eleventh Amendment prohibits awarding injunctive relief for past injuries (“retroactive” relief) if the relief would require expenditures from a state treasury. In determining on which side of the prospective/retroactive line a claim for relief falls, courts generally have focused upon the time at which the injuries occurred. Rye Psychiatric Hospital Center, Inc. v. Surles, 777 F.Supp. 1142, 1147 (S.D.N.Y.1991), citing Port Chester Nursing Home v. Axelrod, 732 F.Supp. 440, 444 (S.D.N.Y.1990); Friedman v. Perales, 616 F.Supp. 1363, 1369 (S.D.N.Y.1985). See' also West Virginia University Hospitals, Inc. v. Casey, 701 F.Supp. 496, 523 (M.D.Pa.1988), aff'd in part, rev’d in part, 885 F.2d.ll (3d Cir.1989) (reversed in part on"
},
{
"docid": "7852779",
"title": "",
"text": "651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). In Tekkno Laboratories, an analogous Medicaid-provider suit, we labeled this argument a specious “attempt[ ] to parry the Eleventh Amendment defense.” 933 F.2d at 1098. Yorktown’s argument fails, as did Tekkno Laboratories’ claim, because it seeks to craft a distinction between monetary damages and money in which plaintiff has a property interest — a distinction irrelevant to Elev enth Amendment analysis. See Edelman, 415 U.S. at 668, 94 S.Ct. at 1358. Second, Yorktown argues that, through participation in the Medicaid program, states have waived their Eleventh Amendment immunity to compensation claims from Medicaid providers. State participation in a federal program, however, does not in itself constitute waiver; rather waiver will be found only if stated in “express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Florida Dep’t of Health and Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (per curiam) (quoting Edelman, 415 U.S. at 673, 94 S.Ct. at 1361). Yorktown cites to the Boren Amendment to the Medicaid Act in support of its waiver claim. Although the Boren Amendment imposes on the states an obligation to adopt “reasonable and adequate [payment rates] to meet the [providers’] costs,” 42 U.S.C. § 1396a(a)(13)(A) (1988); see also Wilder v. Virginia Hosp. Ass’n, — U.S. -, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990), it does not authorize retroactive suits for the recovery of compensation due. The history of amendments to the Medicaid Act also tends to undermine Yorktown’s argument. In 1975, Congress did indeed enact waiver legislation penalizing those states that failed to waive their immunity to damage suits by Medicaid providers. Pub.L. 94-182, § 111, 89 Stat. 1054 (1975). The states opposed the waiver provision and, during the following session, Congress repealed it. Pub.L. 94-552, 90 Stat. 2540 (1976). The legislative history of the waiver repeal indicates that it was intended to return the Medicaid Act to its status quo ante: the Eleventh Amendment once again would bar provider suits"
},
{
"docid": "9645758",
"title": "",
"text": "reports ... to calculate rate reductions,” delete “[t]he cap on rates for new facilities with six beds or less,” set rates for providers at small facilities based on “an average (or collectively) for all six bed ICF/DDs operated by that provider,” and “rebase whenever actual costs exceed actual expenditures for 50% or more of providers in any rate period as shown on KM Schedules of cost reports maintained by Defendants.” Regardless of whether a “relation back” theory comports with current Eleventh Amendment doctrine, the final judgment plainly cannot relate back to an altogether different and far less precise injunction. In short, the relief ordered by the district court’s final injunction did not become validly prospective simply because it was intended to redress past violations of the earlier preliminary injunction. For its conclusion the district court relied primarily on Rye Psychiatric Hospital Center,. Inc. v. Surles, 777 F.Supp. 1142 (S.D.N.Y.1991). The court also cited Libby v. Marshall, 653 F.Supp. 359 (D.Mass.1986) and Bennett v. White, 865 F.2d 1395 (3d Cir.1989). Plaintiffs likewise rely on these opinions, as well as an unpublished ruling, Kansas Health Care Association, Inc. v. Kansas Department of Social and Rehabilitation Services, No. 93-4045-RDR, 2000 WL 728954 (D.Kan. May 31, 2000). None of these decisions is binding precedent in this Circuit and none alters our conclusion. In Rye, the court issued a partial summary judgment ruling finding that the defendants were providing inadequate reimbursement to the plaintiff Medicaid provider. The plaintiff later sought a show cause order compelling the defendants to use the proper formula to reimburse it for services rendered subsequent to the ■ summary judgment ruling as well as for the four years preceding that ruling. The court began its analysis of the show cause request by highlighting the longstanding principles we apply here. 777 F.Supp. at 1146 (“Simply put, the eleventh amendment bars the award of retroactive relief for violations of federal law which would require the payment of funds from a state treasury.... [T]he amendment’s immunity is triggered when relief amounts to the payment of state funds as a form of compensation for past"
},
{
"docid": "7852778",
"title": "",
"text": "II. DISCUSSION At the outset, this appeal requires us to distinguish between official and individual capacity suits. The distinction hinges upon from whom the plaintiff seeks a remedy. Official capacity suits seek, in all aspects other than the party named as defendant, to impose liability on the government. Personal capacity suits, in contrast, aim to impose liability directly on officials for actions taken under color of state law. Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Shabazz v. Coughlin, 852 F.2d 697, 700 (2d Cir.1988). Yorktown’s suit comprises both official and individual capacity claims. A. Official Capacity Claims Official capacity suits brought in federal court against a state, state agencies, or state officials must overcome the immunity accorded the states under the Eleventh Amendment. In an attempt to overcome this hurdle, Yorktown sets forth two arguments. First, Yorktown attempts to recast the relief requested as prospective injunctive relief — the return of property — to which the Eleventh Amendment is no barrier. See Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). In Tekkno Laboratories, an analogous Medicaid-provider suit, we labeled this argument a specious “attempt[ ] to parry the Eleventh Amendment defense.” 933 F.2d at 1098. Yorktown’s argument fails, as did Tekkno Laboratories’ claim, because it seeks to craft a distinction between monetary damages and money in which plaintiff has a property interest — a distinction irrelevant to Elev enth Amendment analysis. See Edelman, 415 U.S. at 668, 94 S.Ct. at 1358. Second, Yorktown argues that, through participation in the Medicaid program, states have waived their Eleventh Amendment immunity to compensation claims from Medicaid providers. State participation in a federal program, however, does not in itself constitute waiver; rather waiver will be found only if stated in “express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Florida Dep’t of Health and Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (per curiam) (quoting Edelman, 415"
},
{
"docid": "3334529",
"title": "",
"text": "in these cases the Administrator's review is the final Department review of MGCRB decisions provided for in section 1886(d)(10)(C)(iii)(II) of the Act.”); see also 57 Fed.Reg. 39,826 (1992). . Jordan also alleges that it is entitled to judicial review of its claim under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (“APA”). \"In the absence of a contrary statutory provision, the APA entitles a person aggrieved by a final agency action to judicial review....” Conservation Law Found., Inc. v. Busey, 79 F.3d 1250, 1260-61 (1st Cir. 1996) (citing inter alia 5 U.S.C. § 702). The APA does not, however, provide “an independent source of subject matter jurisdiction.” Id. In this case, § 1395ww clearly precludes judicial review of these types of administrative decisions, and the regulations are consistent with that mandate. Therefore, the APA does nothing to bolster Jordan's position. . To date, no federal court has decided whether a physician who provides Medicare services has any type of property interest in receiving payment for those services. The Second Circuit has suggested, in cases involving state Medicaid providers, that some form of property interest may exist under these circumstances. See Tekkno Labs. v. Perales, 933 F.2d 1093, 1099-1100 (2d Cir.1991) (Oakes, C.J., concurring) (suggesting that Medicaid provider has a property interest in reimbursement for Medicaid services already performed) (quoting Oberlander v. Perales, 740 F.2d 116, 120 (2d Cir.1984)); but see Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84, 89 (2d Cir.1991) (holding Medicaid provider did not have property interest in payments under Medicaid Act or New York Department of Social Service regulations for claims that were pending investigation). . But see Painter v. Shalala, 97 F.3d 1351, 1358 (10th Cir.1996) (\"Although [a physician] may have a recognizable property interest in receiving payment in accordance with the fee schedule ... there is nothing in the Medicare Act which would have led a reasonable physician to believe that he might be entitled to a greater payment than was outlined in the Secretary’s fee schedule.”). . We note that Cape Cod Hospital's reporting mistakes may, in fact, have erroneously rendered"
},
{
"docid": "17371540",
"title": "",
"text": "Id. at 605. In Wisconsin Hospital Ass’n v. Reivitz, 820 F.2d 863 (7th Cir.1987), the Seventh Circuit dealt with a Wisconsin statute imposing a Medicaid reimbursement rate freeze. Id. at 865. Wisconsin’s Medicaid plan called for reimbursement to hospitals at the end of the year based on certain calculations. To ease the hospitals’ financial burden, reimbursement was provided for at interim rates throughout the year, subject to later adjustment. The Wisconsin statute in question reimbursed hospitals for the first three months of their fiscal year at the rate applicable to the hospital’s previous fiscal year. Id. at 865. Analogously to plaintiffs’ contention in the case before us, the plaintiffs in Reivitz contended that the relief they sought — a direction to the defendants to ignore the invalid statute in deciding how much money to pay the hospitals — was prospective, because no final settling up for the year had yet been made. Id. at 867. The Seventh Circuit rejected this argument, stating that to order funds paid from the state treasury to provide higher payment for services provided before the date of the court’s injunction was beyond its authority because of the limitation of its power under the Eleventh Amendment. Id. We agree with the reasoning of the Fourth and Seventh Circuits in the cases cited. Finally, we address plaintiffs’ misplaced reliance on our decision in Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093 (2d Cir.1991). In Tekkno Laboratories, the Commissioner withheld payment of claims to Tekkno pending a review and verification of their propriety. Id. at 1094. The district court granted Tekkno’s motion for a preliminary injunction prohibiting the withholding of payment. Id. at 1095. In overturning the grant of an injunction, we held that the order to the Commissioner to repay funds withheld prior to the date of the injunction was an exercise of power violative of the Eleventh Amendment. Id. at 1098. Seizing on our comment that the district court’s order “could have had some prospective effect if Tekkno had submitted new claims after” the date of the order, the instant plaintiffs contend that Tekkno Laboratories stands"
},
{
"docid": "7852783",
"title": "",
"text": "1985). Property interests in Medicaid payment of the sort necessary to sustain Yorktown’s claim must derive from federal or state law. Federal law, however, requires that state Medicaid plans “provide for procedures of prepayment and postpayment claims review, including review of appropriate data with respect to the ... provider of service.” 42 U.S.C. § 1396a(a)(37)(B) (1988). In compliance with this requirement, DSS promulgated regulations authorizing it to audit, verify, and withhold payment for claims submitted by Medicaid providers pending a DSS final determination. See 18 N.Y.C.R.R. §§ 515.6, 540.8(a)(1), 540.11 (1988) & § 515.7 (1983) (repealed effective June 6, 1988 and replaced in part by § 518.7 (1988)). Thus, Yorktown has no property interest grounded in either the Medicaid Act or New York regulations to payment for claims pending investigation to determine illegality. See Tekkno Laboratories, 933 F.2d at 1098; see also S & D Maintenance Co. v. Goldin, 844 F.2d 962, 968-70 (2d Cir.1988). But see Tekkno Laboratories, 933 F.2d at 1099-1100 (Oakes, C.J., concurring). DSS, however, may not withhold payment indefinitely without some findings as to unacceptable practices. DSS, in effect, may only refuse to pay for services “for cause.” Rockland Medilabs, Inc. v. Perales, 719 F.Supp. 1191, 1199 (S.D.N.Y.1989). If DSS finds an unacceptable practice, it may, among other sanctions, withhold payment or require repayment. 18 N.Y.C.R.R. §§ 515.3, 515.4 (1988). DSS’s findings as to Yorktown’s abuse of billing codes, performance of unlicensed procedures, and billing for tests provided by another laboratory constitute cause. Thus, Yorktown has no property interest in the withheld payments: to hold otherwise would be to recognize a property interest in services Yorktown knew or should have known contravened state regulations. For Yorktown’s due process claims to succeed, it must challenge the findings of unacceptable practices. Yorktown, however, does not contest directly these findings with respect to the sample claims audited by DSS. Instead, Yorktown, in its second and third claims, objects to procedural aspects related to the findings. Yorktown’s second claim focuses on the statistical extrapolation by which DSS calculated the amount of overpayment. Plaintiff does not challenge any specific statistical methods"
},
{
"docid": "7852775",
"title": "",
"text": "a post-deprivation hearing violated its due process rights. We affirm the district court ruling for the following reasons. To the extent that Yorktown’s suit is against DSS and Commissioner Perales in his official capacity, we find, as we did in Tekkno Laboratories, Inc. v. Perales, 933 F.2d 1093, 1097-98 (2d Cir.1991), that the Eleventh Amendment bars the federal courts from granting a retroactive award to a Medicaid provider that requires payment from the state treasury. To the extent that this suit seeks to impose personal liability on Cesar A. Pe-rales, we find, as did the district court, that Yorktown has failed to establish that it had a cognizable property interest. I. BACKGROUND Yorktown, a clinical laboratory, served as a Medicaid provider until May 1988. In a March 4, 1986 letter, DSS informed Yorktown that payment for current and future claims would be withheld pending an investigation and verification of past claims. Yorktown inquired as to the basis of the investigation; and, in a May 20,1986 letter, DSS replied that evidence existed that Yorktown had misused Medicaid billing codes. On June 10, 1986, DSS issued interim findings based on an audit of Yorktown’s books for January 1, 1983 to December 31, 1985. DSS selected a random sample of 100 recipients of Yorktown’s testing, from which 1,290 claims arose totaling $24,751. Of these claims, DSS found fault with 498 for a total of $20,655 in overcharges. Extrapolating from the sample to the total number of claims for the audited period, DSS calculated that Yorktown owed Medicaid $2,175,591. Yorktown was informed of DSS’s findings and provided with an opportunity to rebut them. On July 17, 1986, DSS issued a Notice of Proposed Agency Action to inform Yorktown that it had engaged in unacceptable practices, as specified by 18 N.Y.C.R.R. § 515.2, including abuse of billing codes, billing for tests provided by another laboratory, and engaging in unnecessary and unlicensed procedures. The notice further informed Yorktown of DSS’s intent to seek restitution, to disqualify Yorktown from participation in the Medicaid program, as permitted by 18 N.Y.C.R.R. § 515.3, and, under 18 N.Y.C.R.R. § 515.7,"
},
{
"docid": "1398352",
"title": "",
"text": "that there are ongoing eligibility disputes, so that at any given time it is likely that there are unpaid claims several months old. The Plaintiffs have not identified any specific claims owing to the six named Plaintiff nursing facilities, or to any members of the Plaintiff Association. The Defendants have offered affidavits averring that all submitted claims for fiscal year 1992 have been reimbursed or otherwise resolved. The Eleventh Amendment prohibits awarding injunctive relief for past injuries (“retroactive” relief) if the relief would require expenditures from a state treasury. In determining on which side of the prospective/retroactive line a claim for relief falls, courts generally have focused upon the time at which the injuries occurred. Rye Psychiatric Hospital Center, Inc. v. Surles, 777 F.Supp. 1142, 1147 (S.D.N.Y.1991), citing Port Chester Nursing Home v. Axelrod, 732 F.Supp. 440, 444 (S.D.N.Y.1990); Friedman v. Perales, 616 F.Supp. 1363, 1369 (S.D.N.Y.1985). See' also West Virginia University Hospitals, Inc. v. Casey, 701 F.Supp. 496, 523 (M.D.Pa.1988), aff'd in part, rev’d in part, 885 F.2d.ll (3d Cir.1989) (reversed in part on other grounds), cert. denied, 496 U.S. 936, 110. S.Ct. 3213, 110 L.Ed.2d 661 (1990). If relief is sought for past harms, it must be considered retroactive; if the harms alleged may .be considered present harms, injunctive 'relief may be granted to remedy any further harm. Rye Psychiatric Hospital Center, Inc. v. Surles, 777 F.Supp. 1142 (S.D.N.Y.1991). Some .courts in similar circumstances have reasoned that any injuries a participating nursing home may have sustained would have occurred at the time the nursing home was reimbursed according to rates legally improper under the Boren Amendment. Rye, supra. Any relief which a plaintiff nursing facility might be granted would be prospective with respect to any reimbursement claims remaining unpaid at that time, because the injury will, have arisen after the court reaches its decision. Rye Psychiatric Hospital Center, Inc. v. Surles, 777 F.Supp. 1142 (S.D.N.Y.1991). The evidence before the Court at this stage shows merely that there may be some fiscal year 1992 claims for reimbursement owing to some unidentified nursing homes, either pending or not yet submitted."
},
{
"docid": "9952359",
"title": "",
"text": "the evidence before the court at this time, the court makes the following findings of fact. 1.Kansas Health Care Association, Inc. and Kansas Association of Homes for the Aging, Inc. are nonprofit trade associations representing both nonprofit and for-profit Kansas nursing facilities. The combined membership of the two associations includes 335 nursing facilities or 88% of all licensed nursing facilities in Kansas. 2. Members of the plaintiff associations are participants in the Kansas Medicaid program who receive reimbursement from the state and federal government for health care services provided to eligible Medicaid recipients. 3. Kansas has elected by statute, namely K.S.A. 39-708c, to participate in the Medicaid program contained in Title XIX of the Social Security Act, 42 U.S.C. §§ 1396, et seq. 4. The Department of Social and Rehabilitation Services is responsible for the administration of the Kansas Medicaid Plan. See K.S.A. 39-708c. 5. On August 30, 1990, the Department of Social and Rehabilitation Services published notices in the Kansas Register of proposed amendments to the Kansas state plan for reimbursement rates for Medicaid providers. 29 Kan.Reg. at 1296-97. 6. On October 1, 1990, the Department of Social and Rehabilitation Services (hereafter “SRS”) implemented a Medicaid reimbursement rate freeze. This rate freeze, titled State Plan Amendment TN-90-44, is to be maintained until September 30, 1991. In addition to the rate freeze, SRS also implemented a plan, TN-90-06 under which health care providers would be reimbursed on a pass through basis as they come into compliance with federal mandates. 7. Under these amendments, Medicaid providers are reimbursed for costs incurred while providing for Medicaid recipients based upon information taken from the most recent cost reports on file with SRS as of August 31, 1990. A cost report is a report submitted by a provider at the end of its fiscal year. In a cost report, all costs of a provider are recorded on an SRS form referred to as a MS-2004. This report is then subject to a desk review and a full field audit by SRS. Upon completion of the review and audit, a prospective rate of reimbursement for"
},
{
"docid": "9916320",
"title": "",
"text": "of November 8, 1990, as amended on November 14, 1990, that this was only the latest in a series of cases before the same judge brought by providers of Medicaid services involving the same defendant, the same underlying set of facts and the same issue — whether payment of claims approved subject to audit may be withheld for up to six months pursuant to the state agency’s authority to review and verify payments, without prior hearing or notification to the provider. See, e.g., Medecorp Labs., Inc. v. Perales, 89 Civ. 7320, 1990 WL 55703 (S.D.N.Y. Dec. 11, 1989); Quantum Lab., Inc. v. Perales, 88 Civ. 8487 (S.D.N.Y. Dec. 15, 1988); Eastwick Medical Labs. v. Perales, 88 Civ. 7685 (S.D. N.Y. Nov. 29, 1988); Franklin Medical Lab., Inc. v. Perales, 88 Civ. 7520 (S.D.N.Y. Nov. 7, 1988); Continental Lab., Inc. v. Perales, 88 Civ. 6649 (S.D.N.Y. Nov. 7, 1988); Modern Medical Lab., Inc. v. Perales, 88 Civ. 6648 (S.D.N.Y. Nov. 7, 1988); Plaza Health Labs., Inc. v. Perales, 88 Civ. 6647 (S.D.N.Y. Nov. 7, 1988); ADL, Inc. v. Perales, 88 Civ. 4749, 1989 WL 83390 (S.D. N.Y. Aug. 2, 1988). I note also that the state thought that the courts’ prior cases were distinguishable only on the basis that this case involved “substantiated evidence of threats to Medicaid recipients’ health.” Affidavit of Robert J. Schack, Assistant Attorney General (Nov. 23, 1990). I am confident that the district court had these other cases in mind, particularly since a lengthy opinion in the ADL case is included in the record before us. Nevertheless, facts such as the amounts of payments due and withheld as well as the evidence relating to threats to Medicaid recipients’ health could have bearing on any review. I also do not think the majority opinion’s discussion of the likelihood of success on the merits gives sufficient weight to our observation in Oberlander v. Perales, 740 F.2d 116 (2d Cir.1984), that “[i]n contrast to the refusal to recognize a property interest in future Medicaid reimbursement, New York acknowledges a property interest m money paid for services already performed in reliance"
},
{
"docid": "3334530",
"title": "",
"text": "cases involving state Medicaid providers, that some form of property interest may exist under these circumstances. See Tekkno Labs. v. Perales, 933 F.2d 1093, 1099-1100 (2d Cir.1991) (Oakes, C.J., concurring) (suggesting that Medicaid provider has a property interest in reimbursement for Medicaid services already performed) (quoting Oberlander v. Perales, 740 F.2d 116, 120 (2d Cir.1984)); but see Yorktown Med. Lab., Inc. v. Perales, 948 F.2d 84, 89 (2d Cir.1991) (holding Medicaid provider did not have property interest in payments under Medicaid Act or New York Department of Social Service regulations for claims that were pending investigation). . But see Painter v. Shalala, 97 F.3d 1351, 1358 (10th Cir.1996) (\"Although [a physician] may have a recognizable property interest in receiving payment in accordance with the fee schedule ... there is nothing in the Medicare Act which would have led a reasonable physician to believe that he might be entitled to a greater payment than was outlined in the Secretary’s fee schedule.”). . We note that Cape Cod Hospital's reporting mistakes may, in fact, have erroneously rendered Jordan eligible for reclassification in FY 1999. Consistent with its interest in finality, however, HCFA has apparently not attempted to recover any excessive reimbursements paid to Jordan for that year. Jordan’s underpayment in FY 2000 would seem to compensate somewhat for any windfall it enjoyed in FY 1999. . The Court ultimately ruled, however, that equitable tolling was inappropriate in Irwin’s case because his late filing was caused by \"what [was] at best a garden variety claim of excusable neglect.” Irwin, 498 U.S. at 96, 111 S.Ct. 453."
},
{
"docid": "12759485",
"title": "",
"text": "the claims submitted by Dr. Cabrera and Arbona to Triple S (Medicare) in 1994 and 1995 were audited. In this case, Triple S selected a statistical valid random sample (SVRS), following Medicare methodology and guidelines, which take into account the adequate size of the sample, stratifies the sample, and provides for the random selection of the claims by strata. Following the aforementioned method, a statistical valid random sample of 230 claims filed by CABRERA for the year 1994 and 231 claims for the year 1995 were selected. The results were then extrapolated from the sample to calculate he amount of the Medicare overpayment. Numerous cases involving Medicaid and Medicare overpayments have endorsed proof of damages through the use of statistics and statistical sampling. In Ratanasen v. State of California, 11 F.3d 1467 (9th Cir.1993), and Yorktown Medical Laboratory, Inc. v. Perales, 948 F.2d 84, 89-90 (2d Cir.1991), the Ninth and Second Circuits rejected plaintiffs’ due process challenges to the use of statistical extrapolation from a sample to calculate the amount of Medicaid overpayments. Likewise, the District of Columbia Circuit upheld HHS’ disallowance of claims based on extrapolations from audits from a random selection of Medicare claims. Chaves County Home Health Service v. Sullivan, 931 F.2d 914 (D.C.Cir.1991), cert. denied, 502 U.S. 1091, 112 S.Ct. 1160, 117 L.Ed.2d 408 (1992). The Seventh Circuit, in a recoupment case, agreed that “the use of statistical samples had been recognized as a valid basis for findings of fact in the context of Medicaid reimbursement.” Illinois Physicians Union v. Miller, 675 F.2d 151, 155 (7th Cir. 1982). In Illinois Physicians Union, the court emphasized an important consideration at issue in the matter: The Department processes an enormous number of claims and must adopt realistic and practical auditing procedures. We agree with the district court’s conclusion that, in view of the enormous logistical problem of Medicaid enforcement, statistical sampling is the only feasible method available. 675 F.2d at 157 (emphasis added). See also Mile High Therapy Centers, Inc. v. Bowen, 735 F.Supp. 984 (D.Colo.1988) (Health Care Financing Administration could adopt statistical sampling method for conducting audits"
}
]
|
115286 | "Brick Church Property was preserved for the benefit of the estate. (Id. at 55.) Owen Bell, Marla Bell, and the Family Partnership then filed a notice of appeal, opting to have this Court, rather than a Bankruptcy Appellate Panel, hear the appeal. (Id. at 75-76.) II. Standard of Review ""The district courts of the United States shall have jurisdiction to hear appeals ... from final judgments, orders, and decrees ... of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title."" 28 U.S.C. § 158(a). On appeal, the district court reviews the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. REDACTED In re Rembert, 141 F.3d 277, 280 (6th Cir. 1998) ; see also Matter of New Ctr. Hosp., 187 B.R. 560, 566 (E.D. Mich. 1995) (""The standard of review for a bankruptcy court's grant of summary judgment is de novo. ""). III. Issue on Appeal Debtors-Appellants' sole issue on appeal is whether there was a genuine issue of material fact regarding the Trustee's authority to sell the Brick Church Property pursuant to § 363(h). (Doc. No. 13 at 7.) Debtors-Appellants do not challenge the Bankruptcy Court's determinations that the transfers at issue were actually and constructively fraudulent. (Id. ) Rather, they argue that the Trustee failed in his motion for summary judgment to establish the requirements of §" | [
{
"docid": "5153258",
"title": "",
"text": "the Bankruptcy Code. On August 25, 2006, the trustee commenced an adversary proceeding against MBNA to avoid and recover, among other transfers, the amount of the two $5,000 convenience checks Wells wrote from her Chase Bank account to her MBNA account. The trustee filed a motion for summary judgment arguing that these were preferential transfers within the provisions of § 547(b). The bankruptcy court granted the trustee’s motion and on April 19, 2007, entered a judgment against MBNA in the amount of $10,816.00, which included other transfers that are not at issue in this appeal. MBNA then appealed the bankruptcy court’s judgment to the Bankruptcy Appellate Panel which in turn affirmed the bankruptcy court’s decision. MBNA now appeals to this court. II. On appeal from a bankruptcy court’s decision granting summary judgment, we review the bankruptcy court’s factual findings for clear error and its legal conclusions de novo. In re Cannon, 277 F.3d 838, 849 (6th Cir.2002). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials and affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The section of the Bankruptcy Code that grants a bankruptcy trustee the authority to initiate proceedings seeking to set aside preferential transfers is 11 U.S.C. § 547(b). Specifically, § 547(b) states: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables"
}
]
| [
{
"docid": "18017765",
"title": "",
"text": "HAINES, Bankruptcy Judge. Educational Credit Management Corporation (“ECMC”) appeals from an order of the United States Bankruptcy Court for the District of Massachusetts discharging all but $3,120 of the debtor’s student loan obligations to ECMC under 11 U.S.C. § 523(a)(8). Because we conclude that the Debtor did not sustain her burden of establishing that excepting the debt from discharge would impose an undue hardship, we REVERSE the decision of the bankruptcy court. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1) ] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3) ].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). The bankruptcy court’s order determining the discharge-ability of the Debtor’s student loan obligations is such a final order. See id. at 646-47; see generally T I Fed. Credit Union v. DelBonis, 72 F.3d 921 (1st Cir. BAP 1995). STANDARD OF REVIEW We evaluate the bankruptcy court’s findings of fact under the “clearly erroneous” standard and its conclusions of law de novo. See Grella v. Salem Five Cent Savings Bank, 42 F.3d 26, 30 (1st Cir.1994); see also Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st Cir.1997). Several circuits have concluded that § 523(a)(8)’s “undue hardship” determination is a question of law that triggers de novo review. Neither the First Circuit nor this appellate panel has addressed the point. Here, both parties agree to de novo review of the bankruptcy court’s undue hardship conclusion, so we will provide it without further inquiry. Of course, we will review the underlying factual findings for clear error. BACKGROUND On February 10, 2003, Brenda Savage filed a voluntary petition under Chapter 13 of the United States Bankruptcy Code. The case was subsequently converted to Chapter 7. Thereafter, Ms. Savage initiated an adversary proceeding"
},
{
"docid": "3684435",
"title": "",
"text": "at the Property. The Bankruptcy Court held a nonevi-dentiary hearing and took the matter under advisement. Thereafter, the Bankruptcy Court issued the Order, accompanied by a memorandum of decision in which it concluded that Premier’s lien impaired the Debtor’s homestead exemption. The Bankruptcy Court noted that the cases Premier cited in support of its argument that the 2009 Homestead did not extend to Sullivan’s interest in the Property were inapposite because they “dealt with situations where the debtor was not the declarant of the homestead and attempted to invoke the protection of the other resident’s homestead.” This appeal followed. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An order granting a motion to avoid a judicial lien is a final order. Mountain Peaks Fin. Servs., Inc. v. Shepard (In re Shepard), 328 B.R. 601, 603 (1st Cir. BAP 2005); Bruin Portfolio, LLC v. Leicht (In re Leicht), 222 B.R. 670, 671 (1st Cir. BAP 1998). STANDARD OF REVIEW The Panel reviews the Bankruptcy Court’s findings of fact for clear error and conclusions of law de novo. See Lessard v. Wilton-Lyndeborough Coop. School Dist., 592 F.3d 267, 269 (1st Cir.2010). As there are no facts in dispute, the issue is one of statutory construction, which the Panel reviews de novo. See Antognoni v. Basso (In re Basso), 397 B.R. 556, 562 (1st Cir. BAP 2008). DISCUSSION A debtor may exempt from the bankruptcy estate a homestead recognized as exempt under state law. See 11 U.S.C. § 522(b)(3); In re Basso, 397 B.R. 556. Here, the Debtor filed the 2009 Homestead pursuant to Mass. Gen. Laws ch. 188, § 1, and elected"
},
{
"docid": "1313217",
"title": "",
"text": "OPINION ARTHUR I. HARRIS, Bankruptcy Judge. In this appeal, Maureen Perfect, Executor of the Estate of Veronica O’Keefe (“O’Keefe”) appeals the bankruptcy court’s order granting summary judgment on the Trustee’s complaint to avoid her lien on the vehicle of chapter 7 debtor, Evonne Giaimo (“Debtor”). For the reasons that follow, we REVERSE the order of the bankruptcy court. I. ISSUE ON APPEAL The issue presented by this appeal is whether an application for certificate of title to a motor vehicle and a certificate of title, both identifying the lienholder, are sufficient under Ohio law to create a security interest in a vehicle. II. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Southern District of Ohio has authorized appeals to the Panel, and neither party has timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ends the litigation on the merits and leaves nothing for the court to do but. execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497 (1989) (citations omitted). The bankruptcy court’s grant of summary judgment to the Trustee is a final appealable order which we review de novo. See Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (6th Cir. BAP 2007). “Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court’s determination.” Id. (citation omitted). III. FACTS On June 11, 2009, Evonne M. Giaimo (“Debtor”) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. Listed on the Debtor’s schedules of assets was a 2008 Toyota RAV 4. The Debtor purchased the vehicle in February 2008, with an interest free loan from her grandmother, Veronica O’Keefe (“O’Keefe”). The Debtor and O’Keefe did not execute any formal"
},
{
"docid": "23534302",
"title": "",
"text": "OPINION WILLIAM HOUSTON BROWN, Bankruptcy Appellate Panel Judge. The Chapter 7 trustee appeals the bankruptcy court’s order granting summary judgment to Norwest Bank Minnesota, N.A. (“Norwest”) based on Ohio’s lis pen-dens statute, Ohio Rev.Code § 2703.26. The bankruptcy court’s order assumes that the Chapter 7 trustee could not obtain the status of a bona fide purchaser under Ohio law in order to avoid Norwest’s mortgage under 11 U.S.C. § 544(a)(3) due to the constructive notice provided by Norwest’s foreclosure action that was pending in state court when the bankruptcy petition was filed. For the reasons stated below, we AFFIRM the decision of the bankruptcy court. I.Issue on Appeal The issue on appeal is whether Nor-west’s pending state court foreclosure action provided constructive notice to the Chapter 7 bankruptcy trustee pursuant to Ohio’s lis pendens statute so as to prevent the trustee from obtaining the status of a bona fide purchaser under 11 U.S.C. § 544(a)(3). II.Jurisdiction and Standard of Review The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the appellate panel. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). The bankruptcy court’s order granting summary judgment, which is a final order, presents a conclusion of law that is reviewed de novo. Myers v. IRS (In re Myers), 216 B.R. 402, 403 (6th Cir. BAP 1998), aff'd, 196 F.3d 622 (6th Cir.1999). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Id. (quoting Corzin v. Fordu (In re Fordu), 209 B.R. 854, 857 (6th Cir. BAP 1997)). “No deference is given to the trial court’s conclusions of law.” Booher Enters. v. Eastown Auto Co. (In re Eastown Auto Co.), 215 B.R. 960, 964 (6th Cir. BAP 1998) (citation omitted). III.Facts Norwest is the holder of a first mortgage on Mr. Periandri’s (“Debtor”) residence. The mortgage was executed by the Debtor on March 31, 1997. On February 13, 1998, Norwest commenced a foreclosure action against"
},
{
"docid": "11238643",
"title": "",
"text": "ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLANT ARMSTRONG, District Judge. BACKGROUND This is an appeal from a grant of summary judgment by the Bankruptcy Court in favor of Appellee MBNA America (“MBNA”). The facts are undisputed. The debtor tendered a check, in the amount of $21,998.71, to MBNA on February 29, 1996. The debtor’s check cleared the debtor’s bank account on Friday, March 8, 1996. Thereafter, on Friday, June 7, 1996, the debtor filed a petition for relief under Title 11, Chapter 7 of the United States Code. On August 29, 1996, the Trustee filed a Complaint seeking to avoid the March 8, 1996 transfer under Title 11 section 547(b), which provides that a transfer may be avoided if it was made within 90 days before the filing of the bankruptcy petition. Because the 90th day before the filing of the bankruptcy petition fell on a Saturday, the Trustee claimed that Bankruptcy Rule 9006(a), which is patterned after Federal Rule of Civil Procedure 6(a), applied to extend the § 547 preference period to the 91st day before the filing of the petition. Thereafter, MBNA filed a Motion for Summary Judgment with respect to the Trustee’s claim for avoidance, alleging that the transfer occurred outside the ninety-day preference period proscribed by § 547. On February 5, 1997, the Bankruptcy Court entered judgment in favor of MBNA ruling that In re Bergel, 185 B.R. 338, 341 (9th Cir. BAP 1995) was binding on the Court. In Bergel, the bankruptcy appellate panel held that Rule 9006(a) did not apply to calculating the preference period under § 547. The Trustee has timely appealed the Bankruptcy Court’s decision. STANDARD OF REVIEW District courts have jurisdiction to hear appeals from final judgments, orders and decrees of bankruptcy judges. 28 U.S.C. § 158. A grant of summary judgment is reviewed de novo. Halverson v. Skagit County, 42 F.3d 1257, 1259 (9th Cir.1994). As an appellate court, this court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the trial court"
},
{
"docid": "8615306",
"title": "",
"text": "this amount as being Mr. Lee’s “pro-rata share” and to “Debtor’s portion (50%).” It is undisputed that the Bankruptcy Court applied the 50/50 rule advocated by the Trustee; however, the Bankruptcy Court did not explain its reasoning for applying this rule in its order. Dkt. 10-4. At the hearing, however, the Bankruptcy Court expressed preference for the minority approach because it is a “bright-line rule.” Dkt. 12 at 5 (under seal). On May 9, 2013, Mr. Lee filed his Motion for Leave to Appeal with the bankruptcy clerk, which was transmitted to this Court on June 25, 2013. II. BANKRUPTCY APPEAL STANDARD This Court has jurisdiction of this appeal under 28 U.S.C. § 158(a), which grants the district court jurisdiction to hear appeals from final judgments and orders, as well as from interlocutory orders of the bankruptcy court. “When a party appeals a bankruptcy court’s decision under 28 U.S.C. § 158(a), district courts review a bankruptcy court’s factual findings for clear error, and legal conclusions and the legal significance accorded to facts de novo.” In re Brown, 444 B.R. 173, 175 (S.D.Ind.2011) (citing Ojeda v. Goldberg, 599 F.3d 712, 716 (7th Cir.2010); Matter of Sheridan, 57 F.3d 627, 633 (7th Cir.1995)). De novo review requires an independent examination of the applicable law without deference to the bankruptcy court’s conclusions. Id. III. DISCUSSION The sole issue on appeal in this case is the appropriate legal standard to be applied in allocating the Refund resulting from jointly filed tax returns as between the Debtor and the Non-Debtor. Being that this is purely a matter of law and the parties have stipulated to the pertinent facts, the Court reviews the Bankruptcy Court’s ruling de novo. Under the United States Bankruptcy Code, the property of a debtor’s estate includes “all legal or equitable interest of the debtor in property as of the commencement of the [bankruptcy] case.” 11 U.S.C. § 541(a)(1). “Although § 541 defines ‘property of the estate’, state law defines the nature and extent of those property interests.” In re Hill, No. 11-10213-AJM-7, 2012 WL 5199171, at *1 (Bankr.S.D.Ind. Oct. 22, 2012)"
},
{
"docid": "15930565",
"title": "",
"text": "issued a series of separate orders with respect to each Appellant entering judgment as to a specific amount ordered as judgment in favor of the Trustee. The Appellants seek review of the March 30, 2000 Opinion and Order, together with the individual judgment entries issued on April 18, 2000. II. By the terms of 28 U.S.C. § 158(a), this Court has jurisdiction to hear appeals from final judgments of a Bankruptcy Court entered in cases referred to the bankruptcy judge under 28 U.S.C. § 157. The scope of review to be conducted by this Court is set forth in Fed. R. Bankr.P. 8013 which provides: On appeal the District Court or Bankruptcy Appellate Panel may affirm, modify, or reverse a Bankruptcy Court’s judgment order or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the Bankruptcy Court to judge the credibility of witnesses. While findings of fact made by a Bankruptcy Court are not to be set aside unless clearly erroneous, particularly with regard to the opportunity of the Bankruptcy Court to judge the credibility of witnesses, such considerations are not applicable to a review of a Bankruptcy Court’s order granting summary judgment. A District Court reviewing a decision of a Bankruptcy Court functions as an appellate court and therefore applies the same standards used in appeals from the District Court. Harbour Lights Marina, Inc. v. Wandstrat, 153 B.R. 781 (S.D.Ohio 1993). Consequently, a finding by a Bankruptcy Court that a movant is entitled to summary judgment, given the absence of genuine issues of material fact, is a matter of law determined by the Bankruptcy Court and reviewed de novo by a District Court. See In re Constr. Alternatives, 2 F.3d 670, 674 (6th Cir.1993). III. The Appellants raise three issues on appeal. In their first issue, the Appellants claim that the Bankruptcy Court erroneously applied the two year statute of limitations set forth in 11 U.S.C. § 546 and that the claims"
},
{
"docid": "19882709",
"title": "",
"text": "§ 544(b) and California law to pursue the asserted fraudulent conveyance claim against the Debtor. II. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Eastern District of Kentucky has authorized appeals to this Panel and a final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations and internal quotation marks omitted). The bankruptcy court’s judgment resolved the underlying adversary proceeding on its merits and is a final, appealable order. See In re FBN Food Servs., Inc., 82 F.3d 1387, 1392 (7th Cir.1996) (order setting aside fraudulent conveyance under 11 U.S.C. § 548(a) is a final order); see generally Geberegeorgis v. Gammarino (In re Geberegeorgis), 310 B.R. 61, 63 (6th Cir. BAP 2004) (“[A]n order that concludes a particular adversarial matter within the larger case should be deemed final and reviewable in a bankruptcy setting.”) (citations omitted). The bankruptcy court’s legal conclusion that the transfer at issue constituted an avoidable fraudulent conveyance is reviewed de novo. See Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d 838, 849 (6th Cir.2002) (citations omitted). “Questions of standing ... are [also] reviewed de novo.” SPC Plastics Corp. v. Griffith (In re Structurlite Plastics Corp.), 224 B.R. 27, 29 (6th Cir. BAP 1998). “De novo means that the appellate court determines the law independently of the trial court’s determination.” Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001) (citation omitted). The bankruptcy court’s determination that the challenged transfer involved property of the Debtor is a factual finding that must be upheld on appeal unless it is clearly erroneous. Westgate Vacation Villas, Ltd. v. Tabas (In re Int’l Pharmacy & Discount II, Inc.),"
},
{
"docid": "5028797",
"title": "",
"text": "as the material facts entitling plaintiff to the relief requested pursuant to 11 U.S.C. 544(a, b) [sic] are not contested. Insolvency is not an issue under section 544. Judgment entered on August 24, 2006, and a timely Notice of Appeal was filed on September 4, 2006. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). A bankruptcy appellate panel is duty-bound to determine its jurisdiction before proceeding to the merits even if not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). A bankruptcy court’s order granting summary judgment is a final order. Abboud v. Ground Round, Inc. (In re Ground Round, Inc.), 335 B.R. 253, 258 (1st Cir. BAP 2005); Jones v. Sureck (In re Jones), 300 B.R. 133, 137 (1st Cir. BAP 2003); Weiss v. Blue Cross/Blue Shield of Delaware (In re Head Injury Recovery Ctr. at Newark, L.P.), 206 B.R. 622 (1st Cir. BAP 1997). STANDARD OF REVIEW On appeal, both the grant of summary judgment and the determination that there are no issues of material fact in dispute are reviewed de novo. See Guz-man-Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 9 (1st Cir.2005); Canzano v. Ragosa (In re Colarusso), 382 F.3d 51, 57-58 (1st Cir.2004). DISCUSSION I. Applicable Law A. The Summary Judgment Standard Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on filed,' 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.”"
},
{
"docid": "12344284",
"title": "",
"text": "order denying the Levy Motion pending this appeal. On November 7, 2002, after a hearing, the bankruptcy court granted the motion for a stay pending appeal, ordering the Trustee to deposit the subject funds in an interest bearing account pending further court order. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An interlocutory order “ ‘only decides some intervening matter pertaining to the cause, and requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). The instant appeals arise from final orders of the bankruptcy court. STANDARD OF REVIEW Appellate courts reviewing an appeal from the bankruptcy court generally apply the clearly erroneous standard to findings of fact and de novo review to conclusions of law. See T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20, n. 8 (1st Cir.1994). Where the issue on appeal is essentially one of statutory construction, the Panel reviews the issue de novo. In the present case, the bankruptcy court rendered its decision based upon its interpretation of § 1326(a)(2). Therefore, the only question presented on appeal is one of law and we review the bankruptcy court’s conclusions de novo. See Jeffrey v. Desmond, 70 F.3d 183, 185 (1st Cir.1995); In re SPM Mfg. Corp., 984 F.2d 1305, 1311 (1st Cir.1993). DISCUSSION MDOR appeals from the bankruptcy court’s finding that (1) the funds held by the Trustee were in custodia"
},
{
"docid": "14908009",
"title": "",
"text": "OPINION BELL, District Judge. Defendant/Appellant Huntington National Bank, successor in interest to FMB-First Michigan Bank (“FMB”) appeals the Bankruptcy Court’s November 30, 1998, order granting the Trustee’s motion for summary judgment. The bankruptcy court held that FMB’s security interest in the Debtor’s semi-tractor truck was subordinated to the rights of the Trustee and avoided in accordance with 11 U.S.C. § 544(a)(1). I. The property at issue in this case is a 1989 Peterbuilt Tractor, VIN 1XP5DB9X2KN277825 (the “Tractor”). The Tractor was previously owned by Patricia Beebe, a resident of Indiana. Beebe had granted a lien to FMB which was recorded on her Indiana title. In September 1997 Beebe sold the Tractor to Debtor Mark Randall Fasick. Beebe signed the title as Seller. Fasick received financing through FMB and granted FMB a security interest in the Tractor to secure the “indebtedness.” FMB signed the “LIEN RELEASES” portion of Beebe’s title and stamped its name on the “PURCHASER’S INFORMATION” portion of Beebe’s title as the new lienholder. Fasick never surrendered the Indiana title to the Michigan Secretary of State or the Indiana Bureau of Motor Vehicles, and was never issued a Certificate of Title to the Tractor. Fasick filed a Chapter 7 bankruptcy proceeding on November 17, 1997. He surrendered the Indiana title to the Tractor to the Trustee at the 341 meeting. The Trustee initiated an adversary proceeding in accordance with 11 U.S.C. § 544(a) seeking to avoid FMB’s lien on the Tractor. The parties filed cross-motions for summary judgment and the bankruptcy court entered summary judgment in favor of the Trustee. FMB filed this appeal. II. This Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(a) which permits district courts of the United States to hear appeals from the bankruptcy courts of final judgments, orders and decrees. This Court is bound by the clearly erroneous standard of review for factual determinations and the de novo standard of review for legal determinations. In re Caldwell, 851 F.2d 852, 857 (6th Cir.1988). The bankruptcy court’s decision to grant summary judgment in this case is purely a question of"
},
{
"docid": "15822077",
"title": "",
"text": "in credit card debt by taking cash advances on May 24, 2003, and May 26, 2003, without intending to repay the debt. See Record on Appeal (Complaint to Determine Dischargeability of Debt U.S.C. § 523(a)(2)(A)). On September 12, 2003, Wan filed a counterclaim that Greenwood violated the FDCPA because Greenwood failed to disclose the amount of the debt, unlawfully required Wan to dispute the debt and failed to verify the debt. See Record on Appeal (Answer of Danny Wan and Class Action, Counterclaim). On November 26, 2003, Greenwood moved to dismiss Wan’s counterclaims under Federal Rule of Civil Procedure 12(b)(6) and by summary judgment. Doc # 7 at 4 — 5. On January 16, 2004, Judge Montali held a hearing and determined orally that the Letter was not subject to the FDCPA. Id at 5. On February 3, Judge Montali issued his written decision in the case granting summary judgment to defendant and dismissing the case. See Doc # 17 at 3. On January 21, 2004, Wan filed a notice of appeal electing to transfer this appeal to district court instead of the Bankruptcy Appellate Panel. Doc # 7 at 5. II The court has jurisdiction to hear this appeal under 28 U.S.C. § 158(a), which grants district courts jurisdiction to “hear appeals from ‘final judgments, orders, and decrees’ of bankruptcy judges” entered in cases and proceedings referred to the bankruptcy judges under 28 U.S.C. § 157. In re Lewis, 113 F.3d 1040, 1043 (9th Cir.1997). Appellant elected to have his appeal heard by this court rather than the Bankruptcy Appellate Panel. See 28 U.S.C. § 157. In reviewing the bankruptcy court’s decision, this court reviews its findings of fact under a clearly erroneous standard and its conclusions of law de novo. In re Carroll, 903 F.2d 1266, 1269 (9th Cir.1990). III Wan contends that Greenwood violated the FDCPA by not disclosing the amount of the debt, by requiring the debt- or to furnish the basis of the dispute and by failing to respond to the request for verification. Greenwood contends that the FDCPA does not apply to the bankruptcy-related"
},
{
"docid": "14615841",
"title": "",
"text": "OPINION The bankruptcy court granted summary judgment denying the Debtor’s discharge pursuant to 11 U.S.C. § 727(a)(3) for failing to maintain adequate records. The Panel AFFIRMS the judgment. I.ISSUE ON APPEAL The issue on appeal is whether Turoczy Bonding was entitled to summary judgment on its adversary complaint seeking a denial of the Debtor’s discharge under 11 U.S.C. § 727(a)(3). II.JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. 28 U.S.C. § 158(b)(1) and (c). The United States District Court for the Northern District of Ohio has authorized appeals to the BAP. A “final order” of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). “A bankruptcy court’s order granting summary judgment to the [Plaintiff] is a final appealable order reviewed de novo.” Gibson v. Gibson (In re Gibson), 219 B.R. 195, 197 (6th Cir. BAP 1998). “Under the de novo standard, the Panel will resolve issues of law independently of the bankruptcy court’s determinations.” Id. III.FACTS In November, 1995, the Debtor obtained a bond from Turoczy Bonding to secure the release of his son from custody. The Debtor agreed to indemnify Turoczy Bonding for any losses incurred in connection with the bond. The Debtor’s son did not appear in court as required and the bond was forfeited. As a result of the forfeiture, on August 19,1997, Turoczy Bonding obtained a judgment against the Debtor for $100,000 plus interest. On December 15, 1997, the Debtor filed a chapter 7 bankruptcy petition. Turoczy Bonding filed an adversary proceeding seeking denial of the Debtor’s discharge under 11 U.S.C. § 727 and, later, a motion for summary judgment. The bankruptcy court granted the motion and denied the Debtor’s discharge under § 727(a)(3). IV.DISCUSSION Turoczy Bonding claims that the Debtor should be denied a discharge under § 727(a)(3), which provides: (a) The court shall grant the debtor a discharge, unless— (3) The debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books, documents, records, and papers, from which the debtor’s financial condition or"
},
{
"docid": "657481",
"title": "",
"text": "acting as debtors-in-possession. The court denied the Fursmans’ motion by order entered on March 31, 2010, finding that the trustee’s avoiding power under § 549 was not affected by the conversion of their case. On March 29, 2010, the Defendants filed a timely Notice of Appeal (“NOA”), which was not signed by Thompson. They subsequently moved for a stay pending appeal which the bankruptcy court denied. II. JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. § 1334 over this core proceeding under § 157(b)(2)(A) and (E). We have jurisdiction under 28 U.S.C. § 158(a). III. ISSUES A. Whether the Fursmans have standing to appeal the bankruptcy court’s judgment; B. Whether the NOA and appellate briefs filed and signed by the Fursmans on behalf of all Defendants was effective as to Thompson; and C. Whether the bankruptcy court erred in granting the trustee’s motion for summary judgment. IY. STANDARDS OF REVIEW We review questions of law that involve jurisdiction and standing de novo. United States v. Garrett, 253 F.3d 443, 446 (9th Cir.2001); Menk v. LaPaglia (In re Menk), 241 B.R. 896, 903 (9th Cir. BAP 1999). We review de novo the bankruptcy court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists and whether the bankruptcy court correctly applied the relevant substantive law. Christensen v. Yolo Cnty. Bd. of Supervisors, 995 F.2d 161, 163 (9th Cir.1993). We also review de novo whether property is property of the estate. Cisneros v. Kim (In re Kim), 257 B.R. 680, 684 (9th Cir. BAP 2000). V. DISCUSSION A. Preliminary Issues Before addressing the merits, the trustee presents threshold issues concerning the propriety of this appeal. The trustee maintains that the Furs-mans lack standing to appeal the judgment avoiding the transfer because Thompson, as the transferee, is the “person aggrieved.” See Debbie Reynolds Hotel & Casino, Inc. v. Calstar Corp. (In re Debbie Reynolds Hotel & Casino, Inc.), 255 F.3d 1061, 1066 (9th Cir.2001) (“Only a party who is ‘directly and adversely affected pe-cuniarily’ by an"
},
{
"docid": "10719071",
"title": "",
"text": "ORDER JOHN ANTOON II, District Judge. Bank of America, N.A. (“Appellant”) challenges the denial by the bankruptcy court of a motion to dismiss fraudulent transfer claims brought by the Chapter 11 Trustee, appellee Soneet Kapila (“the Trustee”), in adversary proceedings relating to the bankruptcy estates of Louis J. Pearlman (“Pearlman”) and several of Pearlman’s companies. The transfers at issue are payments made by Pearlman entities to Appellant and other banks to repay loans during the time period that Pearlman was operating Ponzi schemes— crimes for which he has been sentenced to twenty-five years in federal prison. As set forth below, the bankruptcy court’s ruling is affirmed. I. Jurisdiction and Standard of Review “The district courts of the United States shall have jurisdiction to hear appeals ... from final judgments, orders, and decrees ... and, with leave of the court, from interlocutory orders and decrees, of bankruptcy judges .... ” 28 U.S.C. § 158(a). The orders at issue here are interlocutory, and leave to appeal them was granted on March 9, 2011. (Doc.14). The bankruptcy’s court’s decision on the motion to dismiss turned on a question of law and is therefore to be reviewed de novo. See, e.g., Schlein v. Mills (In re Schlein), 8 F.3d 745, 747 (11th Cir.1993). Under de novo review, an appellate court “ ‘freely examines the applicable principles of law to see if they were properly applied.’ ” Club Assocs. v. Consol. Capital Realty Investors (In re Club Assocs.), 951 F.2d 1223, 1228-29 (11th Cir.1992) (quoting Southtrust Bank of Ala., N.A. v. Thomas (In re Thomas), 883 F.2d 991, 994 (11th Cir.1989)). II. Background In the jointly administered bankruptcy cases of Pearlman and his companies, the Trustee has filed more than 700 adversary proceedings to attempt to recover allegedly fraudulent transfers. The Trustee has asserted actual fraudulent transfer claims under 11 U.S.C. § 548(a)(1)(A) as well as constructive fraudulent transfer claims under 11 U.S.C. § 548(a)(1)(B). On April 16, 2010, the bankruptcy court entered a Bank Test Case Order (“BTCO”) (B.R. 2953) that established two test cases to help resolve many of the adversary proceedings involving"
},
{
"docid": "14691668",
"title": "",
"text": "PER CURIAM. INTRODUCTION Luis R. Gonzalez-Ruiz and Doris Gabriel-De Gonzalez (jointly, the “Debtors”) appeal from two orders of the United States Bankruptcy Court for the District of Puerto Rico (the “bankruptcy court”): 1) an order, dated February 9, 2004, granting the emergency motion of Doral Financial Corporation (“Doral”) for authority to proceed with a foreclosure sale of the Debtors’ residence, granting Doral’s motion to dismiss the Debtors’ fourth Chapter 13 bankruptcy case, granting Doral in rem relief from the automatic stay imposed by 11 U.S.C. § 362(a), and barring the Debtors from filing another bankruptcy petition for one year; and 2) an order, dated March 9, 2005, denying in major part, the Debtors’ motion for reconsideration of the February 9, 2004 order (the “order denying reconsideration”). For the reasons set forth below, the Panel AFFIRMS the orders of the bankruptcy court. JURISDICTION A bankruptcy appellate panel is bound to determine its jurisdiction before proceeding to the merits of an appeal even if the issue of its jurisdiction is not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). The panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An order dismissing a Chapter 13 case is a final, appealable order. See Vicenty v. San Miguel Sandoval (In re San Miguel Sandoval), 327 B.R. 493, 505 (1st Cir. BAP 2005). STANDARD OF REVIEW Appellate courts generally apply the clearly erroneous standard to findings of fact and apply the de novo standard of review to conclusions of law. See T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western Auto Supply Co."
},
{
"docid": "5723320",
"title": "",
"text": "1930(a)(6) (“The fee shall be $250 for each quarter in which the disbursements total less than $15,000.”). The bankruptcy court entered an order (“bankruptcy order”) in accordance with its Memorandum Decision on April 2,1997. The United States Trustee filed an Ex Parte Motion to Reconsider the bankruptcy court’s decision. On April 16, 1997, the bankruptcy court entered an order denying the motion for reconsideration. .Thereafter, the Trustee filed a timely Notice of Appeal. The appellee filed an opposition brief on October 16, 1997 (“Opposition”). On October 29, 1997, the appellant filed its reply brief (“Reply”). Pursuant to Federal Rule of Bankruptcy Procedure 8012(3), the court hereby waives oral argument given that the material facts in this case are not in dispute. The resolution of this appeal rests on a question of law, which the court may resolve on the basis of the briefs and supporting documents submitted. II. STANDARD OF REVIEW The district courts of the United States have jurisdiction to hear appeals of final orders or decrees of the bankruptcy court pursuant to 28 U.S.C. § 158(a)(1). The district court reviews a bankruptcy court’s findings of fact for clear error, and the court reviews its conclusions of law de novo. See In re DAK Indus., Inc., 66 F.3d 1091, 1094 (9th Cir.1995). Questions of statutory construction are conclusions of law subject to de novo review. See In re MacIntyre, 74 F.3d 186, 187 (9th Cir.1996). In this ease, the parties do not dispute the relevant facts; therefore, the court will analyze the bankruptcy court’s interpretation' of the law de novo. III. BANKRUPTCY COURT’S ORDER The bankruptcy court framed the issue as follows: “What is Maruko’s post-confirmation obligation to the U.S. trustee pursuant to 28 U.S.C. § 1930(a)(6)?” Maruko, 206 B.R. at 227. The bankruptcy court made two critical rulings in answering that question: 1) the application of § 1930(a)(6) does not change or modify the confirmation status of Maruko’s Plan and accordingly, is not unconstitutional as asserted by the debtor; and 2) the term “disbursement” under this section is defined as “coming from the bankruptcy estate.” Therefore, the bankruptcy"
},
{
"docid": "11238644",
"title": "",
"text": "91st day before the filing of the petition. Thereafter, MBNA filed a Motion for Summary Judgment with respect to the Trustee’s claim for avoidance, alleging that the transfer occurred outside the ninety-day preference period proscribed by § 547. On February 5, 1997, the Bankruptcy Court entered judgment in favor of MBNA ruling that In re Bergel, 185 B.R. 338, 341 (9th Cir. BAP 1995) was binding on the Court. In Bergel, the bankruptcy appellate panel held that Rule 9006(a) did not apply to calculating the preference period under § 547. The Trustee has timely appealed the Bankruptcy Court’s decision. STANDARD OF REVIEW District courts have jurisdiction to hear appeals from final judgments, orders and decrees of bankruptcy judges. 28 U.S.C. § 158. A grant of summary judgment is reviewed de novo. Halverson v. Skagit County, 42 F.3d 1257, 1259 (9th Cir.1994). As an appellate court, this court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the trial court correctly applied the relevant substantive law. Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). Decisions promulgated by the Ninth Circuit bankruptcy appellate panel (“BAP”), like In re Bergel, are not binding on district courts. Bank of Maui v. Estate Analysis, Inc., 904 F.2d 470, 472 (9th Cir.1990). Indeed, “district courts must always be free to decline to follow BAP decisions and to formulate their own rules within their jurisdiction.” Id. DISCUSSION A. Application of Rule 9006(a) to § 547 At issue is whether the 90-day “reach back” period of § 547 may be extended by application of Rule 9006(a). Section 547(b)(4) provides, in pertinent part: “[T]he trustee may avoid any transfer of an interest of the debtor in property ... made ... on or within 90 days before the date of the filing of the [bankruptcy] petition.” 11 U.S.C. § 547(b)(4)(A). Rule 9006(a) provides: In computing any period of time prescribed or allowed by these rules ..., the day of the act, event, or default from which the designated period of"
},
{
"docid": "15941063",
"title": "",
"text": "United States District Court for the Eastern District of Michigan, and Waterman filed a Motion to Dismiss the Appeal. II. The district court received briefs and heard oral argument on both Barlow’s appeal and Waterman’s Motion to Dismiss the Appeal. On March 19, 1999, the district court issued a Memorandum and Order vacating and remanding the bankruptcy court’s decisions, finding that the bankruptcy court had abused its discretion in failing to treat Barlow’s pre-bar date filings as an informal proof of claim and in failing to treat his objections to Waterman’s Plan as an informal ballot. Waterman filed a timely Notice of Appeal with this Court. III. This Court has jurisdiction pursuant to 28 U.S.C. §§ 158 and 1291. We note that our review process is slightly different from our normal standard of review when reviewing appeals which originated in the bankruptcy courts. First, we directly review the bankruptcy court’s decision rather than the district court’s review of the bankruptcy court’s decision. See In re Trident Assocs. Ltd. Partnership, 52 F.3d 127, 130 (6th Cir.1995). As explained in In re Omegas Group, Inc., this Court accords discretion in reviewing only the original bankruptcy court findings, not those included in the decision rendered by the district court, since “[tjhis court is ‘in as good a position to review the bankruptcy court’s decision as is the district court.’ ” 16 F.3d 1443, 1447 (6th Cir.1994) (quoting In re Sambo’s Restaurants, Inc., 754 F.2d 811, 814 (9th Cir.1985)). As always, we review the bankruptcy court’s conclusions of law de novo, while we review its factual findings for clear error. See In re Rembert, 141 F.3d 277, 280 (6th Cir.1998). Whether an informal proof of claim should be allowed is an equitable determination by the bankruptcy court. See In re Houbigant, Inc. 190 B.R. 185, 187 (Bankr.S.D.N.Y.1995). Equitable determinations are within the sound discretion of the bankruptcy judge and will not be disturbed absent abuse of discretion. See In re Zick, 931 F.2d 1124, 1126 (6th Cir.1991). An abuse of discretion is defined as a “definite and firm conviction that the [court below] committed"
},
{
"docid": "10868767",
"title": "",
"text": "estopped from claiming she received distributions in violation of her partnership agreement. II. Standard of Review This case comes to us via a relatively unusual route. The bankruptcy court heard Mr. Sender’s state law partnership claim as a non-core proceeding under 28 U.S.C. § 157(c). Ms. Buchanan did not consent, under § 157(c)(2), to having the bankruptcy court enter a final judgment with respect to the partnership claim; therefore, the bankruptcy court heard the claim pursuant to § 157(c)(1), which provides: A bankruptcy judge may hear a proceeding that is not a core proceeding but that is otherwise related to a case under title 11. In such proceeding, the bankruptcy judge shall submit proposed findings of fact and conclusions of law to the district court, and any final order or judgment shall be entered by the district judge after considering the bankruptcy judge’s proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. Thus, the district court entered final judgment in this case pursuant to § 157(c)(1). It did not hear the case in its appellate capacity under 28 U.S.C. § 158(a). Therefore, our jurisdiction over Mr. Sender’s appeal is based on 28 U.S.C. § 1291, not 28 U.S.C. § 158(d). Teton Exploration Drilling, Inc. v. Bokum Resources Corp., 818 F.2d 1521, 1524 (10th Cir.1987). Since we are reviewing a final judgment of the district court under § 1291, we are limited in our review to the normally applicable standards. We review the district court’s findings of fact for clear error, Church Mut. Ins. Co. v. Mount Calvary Baptist Church (In re Mount Calvary Baptist Church), 70 F.3d 51, 53 (7th Cir. 1995); see Exxon Corp. v. Gann, 21 F.3d 1002, 1005 (10th Cir.1994), and its conclusions of law, including determinations of state law, de novo. Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 1224-25, 113 L.Ed.2d 190 (1991); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir.1988). III. Analysis Mr. Sender’s claim against Ms. Buchanan is based solely on a provision of"
}
]
|
177606 | "the power to determine fitness for military duty. The court has no jurisdiction to upset his actions absent a violation of law or regulation, or a showing that substantial evidence was lacking to support those actions, and absent any cogent, convincing proof whatever of arbitrary, capricious action on his part. ""* * * [Jjudges are not given the task of running the Army.” Orloff v. Willoughby, 345 U.S. 83, 93 (1953); Wesolowski v. United States, 174 Ct. Cl. 682 (1966). Further, the fact that plaintiff has obtained a compensable disability rating from the Veterans Administration is alone no basis for military disability retirement which is based upon other grounds and upon other statutes and regulations. AR 635-40, para. 4-25 (1970); REDACTED d 340 (1977); Storey v. United States, 209 Ct. Cl. 174, 531 F.2d 985 (1976); Wood v. United States, 176 Ct. Cl. 737 (1966); Johnson v. United States, 138 Ct. Cl. 81, 85, 149 F.Supp. 648, cert. denied, 355 U.S. 850 (1957); Wales v. United States, 132 Ct. Cl. 765, 769, 130 F.Supp. 900, 903 (1955). ""For the foregoing reasons we find it unnecessary to address other defenses raised by the motion. ""it is therefore ordered, upon consideration of the pleadings and motion, without oral argument, that defendant’s motion for summary judgment is granted. The petition is dismissed.”" | [
{
"docid": "11908548",
"title": "",
"text": "Dr. Dickson. The formal PEB also found plaintiff to be 30 percent disabled and also recommended permanent retirement. This was affirmed by the PRC on June 19, 1975, and on July 18, 1975, the Secretary of the Navy ordered plaintiff’s name removed from the TDRL and further ordered that plaintiff be permanently retired with a 30 percent disability rating. On September 2,1975, without having applied to the Board for the Correction of Naval Records, plaintiff filed this suit demanding that bis 30 percent disability rating be changed to a 60 percent rating. The case is before ns on defendant’s motion for summary judgment and plaintiff’s cross-motion for summary judgment. The Secretaries of the various military departments have been granted discretion to determine whether a member of the armed forces is fit for duty and, if not, what percentage of disability the member may have. 10 U.S.C. § 1201 (1970). In view of this discretion, this court has often described the applicable standard of review relative to military disability retirement: This court has held on many occasions that it has no power to review the decisions of the Secretary of one of the military departments or his authorized representatives in such a case unless the petitioner shows by cogent and clearly convincing evidence that such determinations are arbitrary, capricious, or not supported by substantial evidence. * * * [Stephens v. United States, 174 Ct. Cl. 365, 371-72, 358 F. 2d 951, 954 (1966).] See also, Unterberg v. United States, 188 Ct. Cl. 994, 412 F. 2d 1341 (1969); Merson v. United States, 173 Ct. Cl. 92 (1965); Furlong v. United States, 153 Ct. Cl. 557 (1961); Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900 (1955). Thus, a determination by the Secretary that a plaintiff is entitled to a particular percentage disability or is fit for duty will not be overturned unless it was arbitrary or capricious or not supported by substantial evidence. Plaintiff here has failed to produce clear and convincing evidence to show that the military reviewing authorities’ decisions were arbitrary or capricious or unsupported by"
}
]
| [
{
"docid": "7760682",
"title": "",
"text": "scope of review in this case has been established by repeated pronouncements of this court requiring a showing of clear and convincing evidence of arbitrary or capricious action before the court will interfere with the findings by the Secretary of the military service or by a correction board that a person was erroneously or unjustly discharged from the service. Unterberg v. United States, 188 Ct. Cl. 994, 412 F. 2d 1341 (1969) ; Ward v. United States, 178 Ct. Cl. 210 (1967) ; Furlong v. United States, 153 Ct. Cl. 557 (1961). In the absence of the required showing of arbitrary and capricious action by the BOMR, its determinations are final and binding. Hoffman v. United States, 175 Ct. Cl. 457 (1966). We find that in this case plaintiff has failed to meet his burden of producing “cogent and clearly convincing evidence to warrant the substitution by this court of its judgment” for that of the military reviewing authorities, and. to prove that the authorities’ decision was arbitrary, capricious or erroneous in law. Wood v. United States, 176 Ct. Cl. 737, 743 (1966) ; Stephens v. United States, 174 Ct. Cl. 365, 374, 358 F. 2d 951 (1966) ; Wales v. United States, 132 Ct. Cl. 765, 130 F.Supp. 900 (1955). Plaintiff makes numerous allegations of racial discrimination. However, exclusive of several minor social incidents at the Officers’ Club, about which there is also more opinion than fact, there is no evidence of racial bias. This is particularly true on the part of those responsible for evaluating plaintiff, via., bis immediate colleagues and superiors. A finding of racial prejudice in this case would have to be irrationally imputed, based entirely on allegations, to a conspiracy against plaintiff at every level of the Air Force. The failure to prove these allegations makes such a finding impossible. The allegation that plaintiff was conspiratorially denied promotion by his superior officers’ wrongful placement of a reference to an AFE 36-2 proceeding before the first promotion Selection Board is also without foundation. The records an Air Force Selection Board may consider are set out in"
},
{
"docid": "3778140",
"title": "",
"text": "General submitted an additional opinion in which he reached the same conclusion as in his original findings quoted above. Reconsideration was denied by the Correction Board on January 8, 1964, and plaintiff eventually filed this suit. From the foregoing, it is readily apparent that plaintiff’s claims were given thorough and proper review by the administrative boards involved. It has long been the rule that in the absence of a clear showing that a board determination is arbitrary, capricious, unsupported by substantial evidence, or in noncompliance with applicable laws and regulations, this court will not interfere with determinations by the military concerning fitness for duty. Stephens v. United States, 174 Ct. Cl. 365, 358 F. 2d 951 (1966); Wesolowski v. United States, 174 Ct. Cl. 682 (1966); Furlong v. United States, 153 Ct. Cl. 557 (1961). Plaintiff offers no evidence of arbitrary or capricious action by the military boards involved, and shows no violation of a relevant law or regulation. Plaintiff’s claim that the Navy acted arbitrarily when it failed to adopt the disability rating given him by the Veterans Administration as a basis for retiring him for physical disability cannot be sustained. It is well established that such a rating by the Veterans Administration is not binding on the Navy, which operates under separate statutory authority. The fact that plaintiff suffered from an ailment for which he received compensation from the Veterans Administration did not entitle him to disability retirement pay. Johnson v. United States, 138 Ct. Cl. 81, 149 F. Supp. 648, cert. denied 355 U.S. 850 (1957) and cases cited therein. Moreover, the opinion of the Surgeon General quoted above provided a reasonable explanation as to why the rating plaintiff received under the Veterans Administration Schedule for Rating Disabilities had no bearing on plaintiff’s ability to perform his duties. Therefore, we cannot find that the action taken on his applications was arbitrary or capricious. Plaintiff also contends that the Secretary of the Navy acted arbitrarily in issuing plaintiff’s general discharge, but plain tiff offers no support for this claim. Furthermore, plaintiff has not shown nor have we found"
},
{
"docid": "18192520",
"title": "",
"text": "to dispute the administrative findings. Here there are no experts in disagreement on complex medical evidence. Service connection is conceded. There is only one reasonable conclusion which the Board could have reached upon the record and the Board acted in good faith. It is understandable that plaintiff would rather have a more detailed statement by the Surgeon General or the Board. But the Surgeon General in his several reports noted plaintiff’s disabilities, stated that his claim had been carefully reviewed in accordance with the provisions of AFM 35-4 and other regulations, manuals, and the statute; and concluded that upon the basis of “all available records” the disabilities were not of sufficient severity at the time of his retirement to disqualify him for physical reasons pursuant to the statute and regulations. Under the circumstances of the case nothing more was required. In summary, plaintiff has not met his substantial burden of proving that his disabilities at the time of his retirement were clearly sufficient to have rendered him unfit for full military duty within the meaning of AFM 35-4. The court cannot under the circumstances here say that the action of the Collection Board was arbitrary, unreasonable, in bad faith, without adequate support by the evidence, or in conflict with the statute and regulations. All the evidence submitted to the Board and all the evidence adduced at trial, having been carefully weighed, lead to the conclusion that plaintiff has not made his case. There are no grounds, therefore, to substitute judicial judgment for that of the Air Force in determining plaintiff’s fitness for military duty, Unterberg v. United States, 188 Ct. Cl. 994, 412 F. 2d 1341 (1969); Ward v. United States, 178 Ct. Cl. 210 (1967); Wesolowski v. United States, 174 Ct. Cl. 682 (1966); McEaddy v. United States, 152 Ct. Cl. 311 (1961). FINDINGS ob Fact 1. Plaintiff made military service his career. He was a member of his high school ROTC for approximately 2½ years prior to 1937. He attended citizen’s military training camps in 1937, 1938 and 1939 and joined the California National Guard in January 1941."
},
{
"docid": "21297581",
"title": "",
"text": "was paid the monies that flowed from this decision. By letter dated April 1, 1976, plaintiff requested that the Board reconsider its decision and take corrective action to \"indicate that [plaintiffs] disability was at least 30% effective August lá, 1964.” This request was denied by the Board. Plaintiff then filed his petition in this court. In challenging the correctness of the Secretary of the Navy’s determination concerning the percentage of disability, plaintiff assumes a difficult task. This court has stated * * * on many occasions that it has no power to review the decisions of the Secretary of one of the military departments or his authorized representatives in such a case unless the petitioner shows by cogent and clearly convincing evidence that such determinations are arbitrary, capricious, or not supported by substantial evidence. * * * [Stephens v. United States, 174 Ct. Cl. 365, 371-72, 358 F. 2d 951, 954 (1966).] [Cited with approval in Finn v. United States, 212 Ct. Cl. 353, 356, 548 F. 2d 340, 342 (1977).] See also Unterberg v. United States, 188 Ct. Cl. 994, 412 F. 2d 1341 (1969); Merson v. United States, 173 Ct. Cl. 92 (1965); Furlong v. United States, 153 Ct. Cl. 557 (1961); Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900 (1955). To prevail, plaintiff must demonstrate \"that the [service] personnel involved ignored relevant and competent evidence, that they unreasonably construed the significant body of medical documents before them, or that in [some] other manner they failed to discharge their designated duties.” Stephens v. United States, supra, at 373, 358 F. 2d at 955. Thus, a percentage disability determination of the Secretary of the Navy will not be overturned by this court unless it is arbitrary or capricious or not supported by substantial evidence. Finn v. United States, supra, at 356, 548 F. 2d at 342. Plaintiff does not contend that the Navy officials who reviewed his case ignored relevant and competent evidence. Nor does the plaintiff allege that there were procedural irregularities in the review of his case. Plaintiffs contention is that when all"
},
{
"docid": "21329116",
"title": "",
"text": "personnel. It is not the business of the court to run the Army. Orloff v. Willoughby, 345 U.S. 83 (1953). Promotions are discretionary and we are not vested with that discretion. Dorl v. United States, 200 Ct. Cl. 626, cert. denied, 414 U.S. 1032 (1973). To afford relief to plaintiff, he must show us a legal error or legal entitlement to a promotion and plaintiff has not done this. There is a presumption that the administrative officials acted lawfully, in good faith, and without bias in determining that plaintiff did not merit promotion. Boyd v. United States, 207 Ct. Cl. 1, 9 (1975), cert. denied, 424 U.S. 911 (1976). Further, it is essential that plaintiff present a claim for a money judgment presently due. This is not plaintiffs case, since he would not be entitled to money unless promoted. Our precedents in this matter are many and all adverse to plaintiffs position. Compare Roseman v. United States, 207 Ct. Cl. 998 (1975); Rengstorff v. United States, 206 Ct. Cl. 860 (1975). We deny Count I for lack of jurisdiction. Count II of the petition challenges action of the ABCMR in refusing to correct plaintiffs medical records to show him entitled to physical disability retirement pay. Plaintiff also has argued that defendant violated certain regulations in evaluating his physical condition and promotion potential. We do not consider that he has established that the board’s action in denying his application is arbitrary, capricious, or contrary to law. We have examined the record and cannot find that the board decision was unlawful, without a rational basis, or was unsupported by substantial evidence. Accepting at face value plaintiffs allegations that he did indeed suffer an injury, it is clear that the board considered this and found that the numerous physical evaluations of his condition would not support a finding that he could not perform his military duties as, in fact, he did for some 13 years after the injury with no credible evidence that his condition was aggravated by further service. From 1967 to 1972 he was rated on a form which required his"
},
{
"docid": "13456986",
"title": "",
"text": "decision and those cited therein. Plaintiff has failed to produce cogent and clearly convincing evidence to warrant the substitution by this court of its judgment for that of either the doctors of the Air Force or the Correction Board concerning his unfitness for service at the time of his separation. See Stephens v. United States, supra, Furlong v. United States, 153 Ct. Cl. 557, 563 (1961) ; Boland v. United States, 169 Ct. Cl. 145 (1965). In his brief, plaintiff Wood asserts that he was not fit for “full military duty,” but he has not established that the Correction Board was arbitrary, capricious, or erroneous in law. Absent convincing proof, we will not impute bad faith or arbitrariness to that board. Furlong v. United States, supra. Plaintiff contends that standards prescribed by Army Regulations, adopted by the Air Force (particularly AR 40-100 and AR 40-105), were not applied. We cannot agree that any applicable provisions were violated. This court lias held that, in cases like this, the regulations specified above are not wholly apposite “in that they apply either to original appointment or retention rather than standards for physical disability retirement.” Towell v. United States, 150 Ct. Cl. 422, 436 (1960). We have been referred to no regulation which declared that the plaintiff’s ailments were disqualifying per se, nor does it appear that those infirmities were sufficiently permanent or severe to require retirement. In support of his position, plaintiff cites and relies primarily upon this court’s decisions in the cases of Woodard v. United States, 167 Ct. Cl. 306 (1964), and Harper v. United States, 159 Ct. Cl. 135, 310 F. 2d 405 (1962). The facts and circumstances in those cases, and the proof submitted, warranted findings of arbitrary, capricious, and erroneous action by the Correction Boards, but the facts are clearly distinguishable from this case. Finally, plaintiff urges that he should have been retired “with a 60% disability rating because the uncontroverted evidence shows that he was rated at 60% by the Veterans Administration * * This court has many times held that, in making their determinations as to"
},
{
"docid": "17746730",
"title": "",
"text": "to doubt the findings that his illness was not such as to require extensive treatment, hospitalization, or disability retirement, notwithstanding the contra dictory reports referred to above on the degree of his disability. \"Plaintiff has not responded to defendant’s motion for summary judgment. Notwithstanding his failure to respond we have carefully examined all the records submitted for our attention and find that they are substantial evidence for the ultimate determination reached through the multiple Army medical reviews and by the Correction Board in plaintiffs case. Plaintiff has the burden of proof. He has not met this burden and has not overcome the presumption which attaches to the correctness of administrative actions. Under the relevant statute (10 U.S.C. §§ 1201-1221), regulations, and authorities, the Secretary has the power to determine fitness for military duty. The court has no jurisdiction to upset his actions absent a violation of law or regulation, or a showing that substantial evidence was lacking to support those actions, and absent any cogent, convincing proof whatever of arbitrary, capricious action on his part. \"* * * [Jjudges are not given the task of running the Army.” Orloff v. Willoughby, 345 U.S. 83, 93 (1953); Wesolowski v. United States, 174 Ct. Cl. 682 (1966). Further, the fact that plaintiff has obtained a compensable disability rating from the Veterans Administration is alone no basis for military disability retirement which is based upon other grounds and upon other statutes and regulations. AR 635-40, para. 4-25 (1970); Finn v. United States, 212 Ct. Cl. 353, 548 F.2d 340 (1977); Storey v. United States, 209 Ct. Cl. 174, 531 F.2d 985 (1976); Wood v. United States, 176 Ct. Cl. 737 (1966); Johnson v. United States, 138 Ct. Cl. 81, 85, 149 F.Supp. 648, cert. denied, 355 U.S. 850 (1957); Wales v. United States, 132 Ct. Cl. 765, 769, 130 F.Supp. 900, 903 (1955). \"For the foregoing reasons we find it unnecessary to address other defenses raised by the motion. \"it is therefore ordered, upon consideration of the pleadings and motion, without oral argument, that defendant’s motion for summary judgment is granted. The petition"
},
{
"docid": "22955265",
"title": "",
"text": "the relief requested. Plaintiff, of course, attacks the decisions of the Army as arbitrary and unjustified by the medical records and evidence in the case, and asserts that if a physical evaluation board had been convened upon his oral request and had competently and comprehensively examined him just prior to his release from active duty, it would have found him physically disqualified to perform general military service at that time. This court has held on many occasions that it has no power to review the decisions of the Secretary of one of the military departments or his authorized representatives in such a case unless the petitioner shows by .cogent and clearly convincing evidence that such determinations are arbitrary, capricious, or not supported by substantial evidence, Furlong v. United States, 153 Ct. Cl. 557 (1961); Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900 (1955); Boland v. United States, 169 Ct. Cl. 145 (1965). The court will not substitute its judgment for that of the armed services in determining general fitness for military duty. Furlong v. United States, supra; Johnson v. United States, 138 Ct. Cl. 81, 149 F. Supp. 648 (1957), cert. denied, 355 U.S. 850 (1957); Woodford v. United States, 138 Ct. Cl. 228, 151 F. Supp. 925 (1957), cert. denied, 355 U.S. 861 (1957). In the case at hand, plaintiff on three occasions requested the Army Board for Correction of Military Records to alter his records to reflect physical disability as of May 31, 1954. In considering each of these applications, that body had before it plaintiff’s entire relevant military medical history, including his various hospital clinical records and the report of his separation physical examination. Also before the Board’s attention were numerous affidavits and records relating to plaintiff’s post-separation illnesses and discomfort. After reviewing all the evidence presented and taking into account the memorandum opinion prepared upon request by the Surgeon General’s Office, the Board reached the considered opinion that plaintiff had not established sufficient basis to justify a formal hearing or further action in the case. Plaintiff attacks the decision of the Board"
},
{
"docid": "2281486",
"title": "",
"text": "right eye. In February 1962 plaintiff applied to tbe Veterans Administration for compensation and, in April 1963, was awarded a 10 percent disability rating (retroactive to the day after his discharge) for hypertrophic arthritis, dorsal-lumbar spine, with X-ray evidence of discogenic disease. He then applied to the Army to give him disability retirement for an arthritic condition of his back. The Surgeon General’s Office reported that during his service plaintiff complained of back pain, that “X-rays of the spine revealed mild degenerative changes with a slight scoliosis,” and that “a lack of motivation and inadequate personality was the main problem rather than any back pathology. The absence of back pathology is confirmed by the VA examination and rating which showed only minimal disability.” Without ordering a hearing, the Correction Board denied the plaintiff’s application summarily in January 1964. Plaintiff does not present sufficient additional evidence or materials to support his claim for disability retirement pay. No affidavits have been filed, only unsupported statements. Clearly his motion for summary judgment must be denied since, on the present record, the Correction Board’s determination cannot be characterized as arbitrary, capricious, unsupported by substantial evidence, or erroneous in law. The Board could properly find on that record that, as of the time of. separation, plaintiff’s back disability was mild, minor, less than the critical 30% on the VA scale, and not enough to be disabling. See, e.g., Wales v. United States, 132 Ct. Cl. 765, 769, 130 F. Supp. 900, 903 (1955); Wesolowski v. United States, 174 Ct. Cl. 682, 688-90, 693-94 (1966). As for defendant’s motion, we have to decide whether a trial is warranted. We think not. As already noted, plaintiff does not recite any further or new evidence or testimony— which is relevant — that he wishes to present. He contents himself with broad generalities, imprecise accusations, and irrelevant details, and he offers only meritless legal arguments. It is very unlikely that anything substantial will be added by a trial. In such circumstances, the court has indicated that it is appropriate to dispose of the case on the exist ing administrative"
},
{
"docid": "17815598",
"title": "",
"text": "to assign even a 30 percent disability rating in a situation where the VA assigns a 50 percent rating, with both agencies being required by statute to use the same rating schedule, may appear to be somewhat anomalous, nevertheless, as the court has often held, a disability compensation rating by the VA is not determinative of the issues involved in a disability retirement determination by the military. Unterberg v. United States, 188 Ct. Cl. 994, 1003, 412 F.2d 1341, 1346 (1969); Furlong v. United States, 153 Ct. Cl. 557, 565 (1961); Wales v. United States, 132 Ct. Cl. 765, 769, 130 F. Supp. 900, 903 (1955); Holliday v. United States, 128 Ct. Cl. 647, 649 (1954). In Unterberg too the court held that the determination of the Secretary of the Navy and the Board for Correction of Naval Records that plaintiff was fit for duty would not be upset despite a determination by the YA of a 50 percent service-connected disability. VA disability ratings are made under different statutes and for different purposes. They are based upon “average impairments of earning capacity resulting from such injuries in civil occupations.” While the disability rating assigned by the VA for its purposes is a proper item of evidence to be weighed by the military together with all other evidence, Wesolowski v. United States, 174 Ct. Cl. 682, 693 (1966), the military’s determination is, nevertheless, directed to the sole question of whether the particular member of the armed forces “is unfit to perform the duties of his office, grade, rank, or rating * * Plaintiff was an operations officer of an air control squadron. Such a squadron controls airplanes by radar. The operations officer is responsible for supervising the controllers. His duties are primarily administrative. The determination by the VA that plaintiff’s disability would materially impair his earning capacity in his civilian occupation was not inconsistent with the determination by the Secretary of the Navy, in view of the substantial medical evidence, that plaintiff could, despite his disability, satisfactorily perform “the duties of his office, grade, rank, or rating.” Absent “a clear showing”"
},
{
"docid": "23676825",
"title": "",
"text": "findings were contrary to the evidence. He says that at the time he appeared before the Retiring Board he was disabled on account of an injury to the anterior crural nerve caused by the bullet in his thigh, and was also disabled by arthritis, and by a peptic ulcer of the duodenum, and that he suffered from recurrent fevers of undetermined origin. We do not think that plaintiff has sustained his burden of showing by cogent and clearly convincing evidence that the Retiring Board was arbitrary or capricious in finding that he was not incapacitated for active service. There is, of course, a strong presumption that the Retiring Board and the Secretary faithfully discharged the duties imposed upon them by law. Only clearly convincing proof can induce us to hold that a retiring board or the Secretary had arbitrarily or capriciously denied an officer retired pay to which he was entitled. Bad faith will not be attributed to them, unless we are clearly convinced of it. Absent a showing of arbitrary or capricious action, we have no jurisdiction to review the action of the Retiring Board and the Secretary. We cannot substitute our judgment for theirs as to who is fit to serve in the Army. Bowman v. United States, 142 Ct. Cl. 367; Johnson v. United States, 138 Ct. Cl. 81, cert. denied, 355 U.S. 850; Woodford v. United States, 138 Ct. Cl. 228, cert. denied, 355 U.S. 861; Uhley v. United States, 137 Ct. Cl. 275; Girault v. United States, 133 Ct. Cl. 135,; Prichard v. United States, 133 Ct. Cl. 212; Beamish v. United States, 130 Ct. Cl. 767; Holliday v. United States, 128 Ct. Cl. 647; Spencer v. United States, 121 Ct. Cl. 558, cert. denied, 344 U.S. 828. It is only where the decision of the board is clearly unsupported by substantial evidence or when there was a noncompliance with applicable laws and regulations that this court may interfere with the findings of the board. Towell v. United States, 150 Ct. Cl. 422. In the present case plaintiff’s proof falls far short of convincing us"
},
{
"docid": "16307561",
"title": "",
"text": "that plaintiff’s disability was ratable at 40 percent at the time of removal from the NTDEL in 1961. Defendant’s witnesses, both Navy doctors, were of the opinion that plaintiff was fit for duty at that time. Before discussing plaintiff’s allegations of error, it is pertinent to state once again that the function of this court in reviewing boards for correction of military records is to determine whether the board’s action is arbitrary, capricious, and not supported by substantial evidence. Nichols v. United States, 158 Ct. Cl. 412 (1962) ; Snell v. United States, 168 Ct. Cl. 219 (1964). It is not the function of this court to substitute its own judgment for that of the board. Plaintiff has the burden of proving by clearly convincing proof that the board or the Secretary acted arbitrarily or capriciously. Wesolowski v. United States, 174 Ct. Cl. 682 (1966). Plaintiff’s allegation of procedural error is based on (1) the BCNR’s refusal to grant a hearing and on (2) alleged failure by the BCNR. to consider certain medical documents. The BCNR is not required to grant a hearing to all applicants. Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900 (1955) ; Boland v. United States, 169 Ct. Cl. 145 (1965). A hearing is required only when review of applicant’s available military records indicates “probable material error or injustice.” This court said in Harris v. United States, 177 Ct. Cl. 538, 548 (1966), that a hearing should be granted when lower boards “differ in their submitted conclusions, or if the procedures in certain of them are so substantially defective as to preclude reliance on their advice * * Plaintiff was accorded all procedural safeguards by every lower board. He does not contend otherwise. As for differing conclusions reached by lower boards, no board found plaintiff 40 percent disabled after 1956. Nor did' the VA until 1965, when it concluded that plaintiff’s back condition “has increased in severity,” a conclusion reached on the basis of medical reports showing disc degeneration, narrowing of the disc space between vertebrae, and some straightening of the spine,"
},
{
"docid": "22885392",
"title": "",
"text": "August 1967 to 3 November 1967, be declared void and removed from his records. 2. So much of the application of EOLAND DOEL, FV 3062630, before the Air Force Board for the Correction of Military Records, as relates to his request for setting aside his pass over for permanent promotion to the Reserve grade of Major by the FY 1968 Selection Board, and the setting aside of his discharge on lé June 1968 from the United States Air Force Reserve and concurrent reinstatement therein with proper rank, responsibilities and earned benefits, be denied. The majority decision was approved by the Assistant Secretary of the Air Force on March 29,1971. On May 17,1971, plaintiff filed an amended petition in this court alleging that the decision of the Board was arbitrary, capricious, illegal, void and wrong. There is no allegation or contention in the amended petition or in plaintiff’s briefs or motion for summary judgment that the decision of the Board is not supported by substantial evidence. The case is before us on the plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment. The plaintiff has not shown by cogent and clearly convincing evidence that the Board’s decision was arbitrary, capricious or unlawful. Neither has he shown nor even alleged that the decision is not supported by substantial evidence. This court will not overturn the decision of a Correction Board without such allegations and proof. See Wood v. United States, 176 Ct. Cl. 737 (1966); and Stephens v. United States, 174 Ct. Cl. 365, 358 F. 2d 951 (1966). Furthermore, under such circumstances courts will not review or set aside discretionary denials of promotion in the military services such as that involved in the present case. Clinton v. United States, 191 Ct. Cl. 604,423 F. 2d 1367 (1970); and Arnheiter v. Ignatius, 292 F. Supp. 911 (N.D. Cal. 1968), aff'd 435 F. 2d 691 (9th Cir. 1970); and Orloff v. Willoughby, 345 U.S. 83 (1953). The plaintiff contends that his resignation was not voluntary because it was required by Air Force Manual 45-2 when he asked for an exemption from"
},
{
"docid": "14693313",
"title": "",
"text": "be considered along with other evidence and are in no way ultimately determinative of claims for military disability retirement. The awards of the Veterans Administration are in the nature of gratuities by a grateful nation and extend to nonservice-connected disabilities as well as to those believed to be service-connected. The Veterans Administration does not determine fitness for military duty, which is the responsibility of the Secretary and military authorities. Rutherford v. United States, 216 Ct. Cl. 163, 573 F.2d 1224 (1978); Diggs v. United States, supra; Finn v. United States, 212 Ct. Cl. 353, 548 F.2d 340 (1977); Unterberg v. United States, 188 Ct. Cl. 994, 412 F.2d 1341 (1969); Williams v. United States, 186 Ct. Cl. 611, 405 F.2d 890, cert. denied, 396 U.S. 966 (1969); Wood v. United States, 176 Ct. Cl. 737 (1966). Plaintiff has also given the court the benefit of the views of a highly competent private physician who formerly was a neurologist in the Air Force medical service. He examined plaintiff and gave it as his view that plaintiff suffers from a psychomotor seizure disorder and is totally disabled, requiring medication. Plaintiffs affidavit shows that he is employed 3 days per week in a clerical position in Boston. Nevertheless, with full respect for this opinion, it does not disprove that the Correction Board and the Air Force medical officers reached their decision on substantial evidence as to the degree of plaintiffs disability and fitness for duty. Where reasonable and competent men can reach different conclusions, the decision of the Correction Board is not arbitrary and capricious and is entitled to finality. Knightly v. United States, 227 Ct.Cl. 767 (1981); Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979); Wesolowski v. United States, 174 C. Cl. 682 (1966). Plaintiffs claim that he was entitled to be placed on the temporary disability retired list by the Air Force is misplaced. A serviceman can be placed on that status only after it is determined that his medical condition renders him unfit for duty, i.e., unable to perform the duties of his rank, grade and"
},
{
"docid": "13456987",
"title": "",
"text": "that they apply either to original appointment or retention rather than standards for physical disability retirement.” Towell v. United States, 150 Ct. Cl. 422, 436 (1960). We have been referred to no regulation which declared that the plaintiff’s ailments were disqualifying per se, nor does it appear that those infirmities were sufficiently permanent or severe to require retirement. In support of his position, plaintiff cites and relies primarily upon this court’s decisions in the cases of Woodard v. United States, 167 Ct. Cl. 306 (1964), and Harper v. United States, 159 Ct. Cl. 135, 310 F. 2d 405 (1962). The facts and circumstances in those cases, and the proof submitted, warranted findings of arbitrary, capricious, and erroneous action by the Correction Boards, but the facts are clearly distinguishable from this case. Finally, plaintiff urges that he should have been retired “with a 60% disability rating because the uncontroverted evidence shows that he was rated at 60% by the Veterans Administration * * This court has many times held that, in making their determinations as to whether an officer is entitled to disability retirement pay, the armed services boards are not bound by action taken by the Veterans Administration boards. Stephens v. United States, supra, 174 Ct. Cl. at 373 ; Furlong v. United States, supra, 153 Ct. Cl. at 563 ; Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900 (1955). In view of our determinations stated above, the court concludes that plaintiff is not entitled to recover, and his petition is dismissed. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Eichard Arens, and the briefs and argument of counsel, makes findings of fact as follows: 1. (a) Plaintiff, a citizen of the United States and a resident of the State of California, was born on October 9,1912. (b) In this suit, plaintiff seeks to recover disability retirement pay from April 14, 1950, the day following his relief from active duty for the convenience of the Government and not by reason of physical disability, while serving in the rank of Lieutenant"
},
{
"docid": "17746731",
"title": "",
"text": "\"* * * [Jjudges are not given the task of running the Army.” Orloff v. Willoughby, 345 U.S. 83, 93 (1953); Wesolowski v. United States, 174 Ct. Cl. 682 (1966). Further, the fact that plaintiff has obtained a compensable disability rating from the Veterans Administration is alone no basis for military disability retirement which is based upon other grounds and upon other statutes and regulations. AR 635-40, para. 4-25 (1970); Finn v. United States, 212 Ct. Cl. 353, 548 F.2d 340 (1977); Storey v. United States, 209 Ct. Cl. 174, 531 F.2d 985 (1976); Wood v. United States, 176 Ct. Cl. 737 (1966); Johnson v. United States, 138 Ct. Cl. 81, 85, 149 F.Supp. 648, cert. denied, 355 U.S. 850 (1957); Wales v. United States, 132 Ct. Cl. 765, 769, 130 F.Supp. 900, 903 (1955). \"For the foregoing reasons we find it unnecessary to address other defenses raised by the motion. \"it is therefore ordered, upon consideration of the pleadings and motion, without oral argument, that defendant’s motion for summary judgment is granted. The petition is dismissed.”"
},
{
"docid": "2281487",
"title": "",
"text": "present record, the Correction Board’s determination cannot be characterized as arbitrary, capricious, unsupported by substantial evidence, or erroneous in law. The Board could properly find on that record that, as of the time of. separation, plaintiff’s back disability was mild, minor, less than the critical 30% on the VA scale, and not enough to be disabling. See, e.g., Wales v. United States, 132 Ct. Cl. 765, 769, 130 F. Supp. 900, 903 (1955); Wesolowski v. United States, 174 Ct. Cl. 682, 688-90, 693-94 (1966). As for defendant’s motion, we have to decide whether a trial is warranted. We think not. As already noted, plaintiff does not recite any further or new evidence or testimony— which is relevant — that he wishes to present. He contents himself with broad generalities, imprecise accusations, and irrelevant details, and he offers only meritless legal arguments. It is very unlikely that anything substantial will be added by a trial. In such circumstances, the court has indicated that it is appropriate to dispose of the case on the exist ing administrative record. Brown v. United States, 184 Ct. Cl. 501, 516, 396 F. 2d 989, 999 (1968). We take that course and grant defendant’s motion because, as already said, the Board’s decision must be upheld on the existing record. Finally, we note, and strongly disapprove, the inclusion in plaintiff’s briefs of profanities, vulgarities, and obscenities which have no place in court papers. We shall treat them as stricken and we admonish plaintiff not to repeat this practice. The defendant’s motion for summary judgment is granted and the plaintiff’s motion is denied. The portion of the petition which has not already been dismissed is now dismissed. He says, for instance, that at one point in his service he was given a “U-2” profile rating. This would not, in itself, show disability. See McEaddy v. United States, 152 Ct. Cl. 311, 327-29 (1961) ; Stephens v. United States, 174 Ct. Cl. 365, 369, 358 F. 2d 951, 952 (1966). He also recites a couple of other instances in which Army doctors refused to consider his illnesses as serious"
},
{
"docid": "22955264",
"title": "",
"text": "in conjunction with the second count of plaintiff’s claim.) On September 28, 1957, while a patient at the Walter Reed Army Hospital, plaintiff filed a third application with the Board for Correction of Military Records, again alleging his physical disqualification as of May 31,1954. All of plaintiff’s major illnesses were listed in the request, with particular emphasis laid on his 1951 gall bladder removal, his 1955 pancreatitis, and his 1957 myocardial infarction. On April 28,1958, plaintiff was notified that his request for reconsideration had been denied because the Board, after again considering the records of the case, including those relevant to his hospitalization following the myocardial infarction, had found no basis for a formal hearing or for an alteration of the records. Thus, three times plaintiff applied to the Army Board for Correction of Military Records, requesting that his records be changed to show his physical disability and consequent entitlement to disability retirement pay as of May 31,1954, the date of his separation from active military service. Three times that administrative body refused to grant the relief requested. Plaintiff, of course, attacks the decisions of the Army as arbitrary and unjustified by the medical records and evidence in the case, and asserts that if a physical evaluation board had been convened upon his oral request and had competently and comprehensively examined him just prior to his release from active duty, it would have found him physically disqualified to perform general military service at that time. This court has held on many occasions that it has no power to review the decisions of the Secretary of one of the military departments or his authorized representatives in such a case unless the petitioner shows by .cogent and clearly convincing evidence that such determinations are arbitrary, capricious, or not supported by substantial evidence, Furlong v. United States, 153 Ct. Cl. 557 (1961); Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900 (1955); Boland v. United States, 169 Ct. Cl. 145 (1965). The court will not substitute its judgment for that of the armed services in determining general fitness for military"
},
{
"docid": "22885393",
"title": "",
"text": "summary judgment and defendant’s cross-motion for summary judgment. The plaintiff has not shown by cogent and clearly convincing evidence that the Board’s decision was arbitrary, capricious or unlawful. Neither has he shown nor even alleged that the decision is not supported by substantial evidence. This court will not overturn the decision of a Correction Board without such allegations and proof. See Wood v. United States, 176 Ct. Cl. 737 (1966); and Stephens v. United States, 174 Ct. Cl. 365, 358 F. 2d 951 (1966). Furthermore, under such circumstances courts will not review or set aside discretionary denials of promotion in the military services such as that involved in the present case. Clinton v. United States, 191 Ct. Cl. 604,423 F. 2d 1367 (1970); and Arnheiter v. Ignatius, 292 F. Supp. 911 (N.D. Cal. 1968), aff'd 435 F. 2d 691 (9th Cir. 1970); and Orloff v. Willoughby, 345 U.S. 83 (1953). The plaintiff contends that his resignation was not voluntary because it was required by Air Force Manual 45-2 when he asked for an exemption from the call to extended active duty, and because the word “voluntary” was not in his resignation. It is settled that regulations of the Secretaries of the Armed 'Services have the force and effect of law. Henneberger v. United States, 185 Ct. Cl. 614, 403 F. 2d 237 (1968). Air Force Manual 45-2 which plaintiff complied with was such a regulation. The absence of the word “voluntary” in his resignation was immaterial. When plaintiff sought the ’benefits of Air Force Manual 45-2 and at the same time submitted his resignation, he is deemed to have done so voluntarily. In order for a resignation to be involuntary, there must ordinarily be external coercion or duress, which are fact issues. McGucken v. United States, 187 Ct. Cl. 284, 407 F. 2d 1349, cert. denied, 396 U.S. 894 (1969) ; Pitt v. United States, 190 Ct. Cl. 506,420 F. 2d 1028 (1970); and Hanes v. Pace, 203 F. 2d 225 (D.C. Cir. 1953). The plaintiff has not shown coercion or duress in connection with his resignation in this case."
},
{
"docid": "6542431",
"title": "",
"text": "appropriate set-offs. It is not questioned that plaintiff was suffering from some physical disability at the time he was found fit for active military duty. But, as this court said in Wales v. United States, 132 Ct. Cl. 765, 130 F. Supp. 900 (1955) : * * * Not all ailments or disabilities are incapacitating to the extent of requiring retirement. Even if the court should be inclined to the belief that reasonable minds might differ from the determination made by the Secretary of the Army that plaintiff was fit for military duty, it is not justified in substituting its own judgment for the one made by the Secretary, and this court has no jurisdiction in the matter unless the Secretary’s action was arbitrary, capricious, unlawful, or not supported by substantial evidence. Nichols v. United States, 158 Ct. Cl. 412 (1962). On many occasions this court has expressed its concurrence with the long standing view held by the courts, generally, that the judiciary should not interfere with the Army’s determination of who is able, or unable, to perform active duty, in the absence of a clear showing that the Army acted arbitrarily or capriciously, or contrary to applicable statutes and regulations. In Hoen v. United States, 157 Ct. Cl. 235, 240 (1962), this court said: This court has repeatedly made it clear that it will not review the decision of an authorized board of the Armed Services in a disability retirement case to determine when or whether a service man is fit or unfit for military service. The burden of proof is on plaintiff in all such cases to establish that the denial of retirement rights was arbitrary, capricious, or contrary to law. * * * See, e.g., O'Brien v. United States, 124 Ct. Cl. 655 (1953); Holliday v. United States, 128 Ct. Cl. 647 (1954); Beamish v. United States, 130 Ct. Cl. 767, 128 F. Supp. 158 (1955); Wales v. United States, supra; Prichard v. United States, 133 Ct. Cl. 212, 135 F. Supp. 420 (1955); Towell v. United States, 150 Ct. Cl. 422 (1960); Furlong v. United States,"
}
]
|
689023 | employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 2535, 73 L.Ed.2d 130 (1982); see also Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir.1982) (“The fact that a particular screening device admits some members of a protected class into pool of job candidates does not demonstrate an absence of discrimination.”). Title VII protects individuals, as well as groups, from discrimination on the basis of group characteristics. We have already made it clear in another context that a plaintiff is not precluded from bringing suit merely because a person of the same protected class is selected for the challenged position. In REDACTED we held that a plaintiff suing under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982), may establish a prima facie case under McDonnell Douglas even though the position was filled by a person who was also within the class protected by the ADEA. See 656 F.2d at 532 (requirement that person selected to fill challenged position not be a member of plaintiff’s protected class “adds a gloss that is absent from McDonnell Douglas ”). Other circuits have interpreted the fourth element of McDonnell Douglas in the same manner, both in ADEA cases, see, e.g., Loeb v. Textron, Inc., 600 F.2d 1003, 1013 & n. 9 (1st Cir.1979), and in Title VII cases, see, e.g., Jones v. Western | [
{
"docid": "22571963",
"title": "",
"text": "the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. (footnote omitted). The McDonnell Douglas standards are flexible and can be modified to accommodate a claim of discriminatory discharge. See id. at 802 n.13, 93 S.Ct. at 1817 n.13; Loeb v. Textron, Inc., 600 F.2d at 1013. Moreover, an adaptation of the McDonnell Douglas standards provides a sensible method of evaluating the evidence in an action brought under the ADEA, as well as Title VII. Id. at 1015-16; Smith v. University of North Carolina, 632 F.2d 316, 332 (4th Cir. 1980). Hastings urges us to adopt the elements of a prima facie case of age discrimination that were set forth by the Fifth Circuit in Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir. 1977). In Price, the court modified the fourth element of the McDonnell Douglas test by apparently requiring a discharged employee to prove that “he was replaced with a person outside the protected group.” Id. If we were to agree with Hastings that Price sets forth the minimum elements of prima facie proof in an ADEA suit, then Douglas would have failed to establish a prima facie case, because he was replaced by a person who was within the class protected by the ADEA. We reject Hastings’s argument. The elements of proof articulated in Price add a gloss that is absent from McDonnell Douglas. See Loeb v. Textron, Inc., 600 F.2d at 1012-13; Smith v. World Book-Childcraft International, Inc., 502 F.Supp. 96, 99-100 (N.D.Ill.1980). In fact, the Fifth Circuit itself has rejected the interpretation of Price now urged by Hastings. In McCuen v. Home Insurance Co., 633 F.2d 1150 (5th Cir. 1981), the court ruled that failure to meet the standards set forth in Price “does not foreclose a plaintiff from showing discrimination,” suggesting that Price establishes one, but not the only, method of proving a prima facie case. Id. at 1151; see also McCorstin v. United States Steel Corp.,"
}
]
| [
{
"docid": "13510195",
"title": "",
"text": "Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824). See also Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir.1990). In analyzing claims of discriminatory discharge under the LAD, the New Jersey Supreme Court has adopted the application of Burdine and McDonnell Douglas employed by the First Circuit for claims of discriminatory discharges under Title VII. Clowes v. Terminix Intern’l, Inc., 109 N.J. 575, 597, 538 A.2d 794 (1988) (citing Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir.1979)). Under this analysis, the employee has established a prima facie case for a discriminatory discharge where the employee proves: (1) the employee was a member of a protected group; (2) the employee was performing his job at a level that met his employer’s legitimate expectations; (3) the employee nevertheless was fired; and (4) the employer sought someone to perform the same work after the employee was terminated. Id. 109 N.J. at 597, 538 A.2d 794. The Loeb court pointed out that the employee need only prove he was replaced, thereby demonstrating a continued need for the same services. Loeb, 600 F.2d at 1013. But it also noted that evidence that the replacement was not a member of the protected group may be probative of discrimination. Id. at 1013 n. 9. See also Turner, 901 F.2d at 342 (in claim under ADEA and the LAD, plaintiff must show that he is in protected class and that he is qualified, but also that he was replaced by “person sufficiently younger to permit an inference of age discrimination.”). In the instant case, Maietta has submitted no evidence that UPS had a discriminatory motive for terminating his employment. He cites a comment made by a former superior Frank Foley around 1972, and comments made by subordinates that UPS did not hire or promote sufficient Italians. Maietta Dep. at 8, 13-14, 18. These comments were made most recently in 1982, by people who he does not assert participated in the decision to terminate his employment. He asserts he was called derogatory ethnic names, but does not say by whom or when. Maietta"
},
{
"docid": "23585339",
"title": "",
"text": "It argues that because similarly situated male employees were treated as Pitre was, her treatment could not have been discriminatory or retaliatory, and because more women than men were promoted during the relevant period, its promotion policy could not have been discriminatory. However, an employer is not immunized from liability simply because some males received detriments before or contemporaneously with a Title VII plaintiff or because other protected classes received benefits instead of a Title VII plaintiff. See United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 950 (10th Cir.1979). “It is clear beyond cavil that the obligation imposed by Title VII is to provide an equal opportunity for [all] ..., without regard to whether members of the applicant’s [sex] are already proportionately represented in the work force.” Furnco Constr. Co. v. Waters, 438 U.S. 567, 579, 98 S.Ct. 2943, 2951, 57 L.Ed.2d 957 (1978). Similarly, that a member of a protected class was hired or promoted in place of a Title VII plaintiff has repeatedly been held insufficient to insulate the employer from liability. Cockrham v. South Central Bell Telephone Co., 695 F.2d 143, 145 (5th Cir.1983); Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir.1982); DeLesstine v. Fort Wayne State Hosp., 682 F.2d 130, 132-33 (7th Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 378, 74 L.Ed.2d 511 (1982); Lee Way Motor Freight, 625 F.2d at 950. A statistical showing that a higher percentage of female applicants are hired than male has also been held unavailing. Catlett, 828 F.2d at 1266. “[Irrespective of the form taken by the discriminatory practice, an employer’s treatment of other members of the plaintiffs’ group can be ‘of little comfort to the victims of ... discrimination.’ ” Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 2535, 73 L.Ed.2d 130 (1982) (quoting Teamsters, 431 U.S. at 342, 97 S.Ct. at 1858). Thus, a showing that some similarly situated males were demoted at the same time as Pitre, or a showing that more women than men were actually promoted, does not preclude the district court from finding a statutory violation. Although"
},
{
"docid": "5823980",
"title": "",
"text": "(Title VII guidelines applicable to cases arising under ADEA); Smithers v. Bailar, 629 F.2d 892, 894 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir.1979) quoting Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978) (prohibitions of ADEA derived directly from the language of Title VII); Miller v. General Elec. Co., 562 F.Supp. 610, 617 (E.D.Pa.1988). Compare EEOC v. Zippo Manufacturing Company, 713 F.2d 32 at 38 (3d Cir.1983) (ADEA’s scope for purposes of procedure and remedies determined by Fair Labor Standards Act). Therefore, while an employee alleging age discrimination retains the ultimate burden of proving that age was a determinative factor in the employer’s decision, the United States Supreme Court has established intermediate evidentiary burdens which serve to bring the litigants and the court expeditiously and fairly to the ultimate question. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253,101 S.Ct. 1089,1093, 67 L.Ed.2d 207 (1981). A plaintiff must carry the initial burden to establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Massarsky v. General Motors Corp., 706 F.2d at 118. The purpose of the prima facie requirement is to eliminate the most common non-discriminatory reasons for the employer’s action thereby creating a presumption that the employer unlawfully discriminated against the employee. See Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94. As adapted to age discrimination actions, some courts have required the plaintiff to show that: (1) he was within the protected class; (2) he was qualified for the job; (3) he satisfied the normal requirements of the job; (4) he was the object of adverse action. McClain v. Mack Trucks, Inc., 532 F.Supp. 486, 489 (E.D.Pa.1982); Whack v. Peabody & Wind Engineering Co., 452 F.Supp. 1369, 1371 (E.D.Pa.1978), aff’d 595 F.2d 190 (3d Cir.1979); see also Loeb v. Textron, 600 F.2d 1003, 1013 (1st Cir.1979) (discharged employee also required to show that employer sought similarly qualified replacement following employee’s termination). It is agreed that plaintiff was a member of the"
},
{
"docid": "980793",
"title": "",
"text": "granted the motion for summary judgment on the ground that plaintiff had not shown a prima facie case of age discrimination under Price v. Maryland Casualty Co. because he was unable to show that he was replaced by a person outside the protected class. As the court said: The position held by the plaintiff was abolished and was not filled by a new employee. Furthermore, the other employee whom plaintiff claims should have been discharged rather than himself is also a member of the protected class. We held in Price v. Maryland Casualty Co., 561 F.2d at 612, that an ADEA plaintiff shows a prima facie case when he demonstrates that “(1) he was a member of the protected group, (2) he was discharged, (3) he was replaced with a person outside the protected group, and (4) he was qualified to do the job.” These standards were adopted from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII case, in Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730 (5th Cir. 1977). The failure to meet these standards, however, does not foreclose a plaintiff from showing discrimination. We observed in Marshall: McDonnell Douglas does not establish an immutable definition of a prima facie case. The phrase simply refers to evidence sufficient for a finding in plaintiff’s favor unless rebutted .... The Court recognized that principle in McDonnell Douglas, for it noted that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations.” 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13, 36 L.Ed.2d at 677 n. 13. 554 F.2d at 735. Title 29 U.S.C.A. § 623(a)(1) makes it unlawful for an employer “to discharge any individual . . . because of such individual’s age.” Interpreting the statute so as to limit its protection to those instances when a covered employee is replaced by a noncov-ered employee would permit an employer to fire a 69-year-old employee solely"
},
{
"docid": "22333831",
"title": "",
"text": "427 U.S. at 282-84, 96 S.Ct. at 2579-80. We have consistently held that a plaintiff fired for misconduct makes out a prima facie case of discriminatory discharge if he shows that he is a member of a protected class, that he was qualified for the job from which he was fired, and “that the misconduct for which [he] was discharged was nearly identical to that engaged in by [an employee outside the protected class] whom [the employer] retained”. Davin v. Delta Air Lines, Inc., 5 Cir. Unit B 1982, 678 F.2d 567, 570; accord Rohde v. K. O. Steel Castings, Inc., 5 Cir.1981, 649 F.2d 317, 322-23; Brown v. A.J. Gerrard Mfg. Co., 5 Cir.1981, 643 F.2d 273, 276; Green v. Armstrong Rubber Co., 5 Cir.1980, 612 F.2d 967, 968 (per curiam), cert. denied, 1980, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102; Turner v. Texas Instruments, Inc., 5 Cir.1977, 555 F.2d 1251, 1255; see also Anderson v. Savage Laboratories, 11 Cir.1982, 675 F.2d 1221, 1224. The prima facie ease is established even if the plaintiff’s replacement is also a member of the protected class. Cockrham v. South Central Bell Telephone Co., 5 Cir. 1983, 695 F.2d 143, 145 (per curiam); EEOC v. Brown & Root, Inc., 5 Cir.1982, 688 F.2d 338, 340; Byrd v. Roadway Express, Inc., 5 Cir.1982, 687 F.2d 85, 86-87. “The principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole.” Connecticut v. Teal, 1982, 457 U.S. 440, 453-54, 102 S.Ct. 2525, 73 L.Ed.2d 130. Title VII does not “give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group”. Id., 457 U.S. at 455, 102 S.Ct. at 2535. Nor does Title VII allow an employer to escape liability for discriminatorily discharging an individual by maintaining an overall balance in the work force. Furnco, 438 U.S. at 579, 98 S.Ct. at 2950. “Punitive action against employees for violating work rules must not differentiate on the basis"
},
{
"docid": "23392840",
"title": "",
"text": "his age. The district judge cited and relied on the Supreme Court’s McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) decision setting forth the elements an aggrieved employee must establish to prove a prima facie case of employment discrimination. Although McDonnell Douglas involved a Title VII complaint of employment discrimination, the courts have also applied the McDonnell Douglas formula to cases involving alleged age discrimination. Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir. 1980). In Loeb v. Textron, 600 F.2d 1003 (1st Cir.1979), the First Circuit utilized the elements of McDonnell Douglas, with appropriate modifications, to evaluate a claim of unlawful discharge under the ADEA. “A correct statement of the elements of a McDonnell Douglas prima facie case, adapted to [the] present circumstances, therefore would have been that Loeb had to prove that he was in the protected age group, that he was performing his job at a level that met his employer’s legitimate expectations, that he nevertheless was fired, and that [his employer] sought someone to perform the same work after he left.” Loeb, 600 F.2d at 1014 (footnote omitted). The plaintiff Huhn contends that he established a prima facie case of age discrimination according to the McDonnell Douglas standard: (1) he belongs to the protected class (age 40-70); (2) he was qualified for his position; (3) he was terminated; and (4) he was replaced by a younger person. Clearly, Huhn, fifty years of age at the time of his termination, fell within the age group protected by the ADEA. See 29 U.S.C. § 631(a). As to the second element of a McDonnell Douglas prima facie case, a plaintiff must establish that he “was performing his job at a level that met his employer’s legitimate expectations” and Huhn alleges that he meets this element of the test as his level of sales, in existence at the time of his discharge, was “apparently satisfactory” to Koehring as the Company had never complained to him previously. The plaintiff’s argument that he was “qualified” in that he was performing at a level"
},
{
"docid": "23425326",
"title": "",
"text": "relevant to a determination whether a plaintiff has established a prima facie case under the McDonnell Douglas test. Rather, we need say only that, contrary to the district court’s assumption, such identity does not automatically preclude a plaintiff from meeting the test. When the individual who was promoted receives the challenged position only after the plaintiff has filed a discrimination charge, the fact that both individuals are members of the same protected class does not rebut the otherwise established inference of discrimination. In the case before us, there is no bar to plaintiff’s establishing a prima facie case under McDonnell Douglas. Contrary to AT & T’s suggestion, we think it clear that a plaintiff who satisfies the four elements of McDonnell Douglas has necessarily established the requisite inference of discrimination. Equally important, however, it is possible for a plaintiff to establish a prima facie case without satisfying the McDonnell Douglas test. Compliance with that standard is only one method of establishing a prima facie case. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977); Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d 531, 550 (9th Cir.1982); Lynn v. Regents of the University of California, 656 F.2d 1337, 1341 (9th Cir.1981). In McDonnell Douglas itself the Supreme Court noted that, because of the variations in factual situations, plaintiffs in some cases may seek to establish a prima facie case by other means. See 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13; see also Note, Sexual Harassment Claims of Abusive Work Environment Under Title VII, 97 Harv.L.Rev. 1449, 1454-59 (1984) (inappropriateness of McDonnell Douglas test in sexual harassment cases). A plaintiff may demonstrate an inference of discrimination in whatever manner is appropriate in the particular circumstances. See Loeb v. Textron, Inc., 600 F.2d 1003, 1014 n. 12 (1st Cir.1979). The burden of establishing a prima facie case is not designed to be “onerous.” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094. In order to establish a prima facie case of discrimination, the plaintiff need only provide"
},
{
"docid": "23381431",
"title": "",
"text": "also Loeb v. Textron, Inc., 600 F.2d 1003, 1014 & n. 18 (1st Cir.1979). Plaintiffs in the present case took advantage of this alternative method of making out a prima facie case. Their evidence revealed that TWA grants the downgrading requests of all pilots with sufficient seniority except those of captains and first officers who reach age 60. This direct evidence of a differentiation based solely on age is sufficient to give rise to an inference of discriminatory motive, see Geller v. Markham, supra, 635 F.2d at 1031, and establishes, therefore, a prima facie case of discriminatory treatment. See Stanojev, supra, 643 F.2d at 921; Stone v. Western Air Lines, Inc., 544 F.Supp. 33, 37 (C.D.Cal.1982). TWA argues in reply that even under this alternative formula for raising an inference of discriminatory treatment appellants failed to make out a prima facie case, since most captains and first officers seeking to downbid to flight engineer positions have been successful, which negates the “critical” element of discriminatory motive. We disagree. That some captains were successful in complying with the company’s discriminatory transfer policy — and then at the price of an early demotion — cannot excuse the denial of equal opportunity to other members of the protected class. Cf. Furnco Construction Corp. v. Waters, supra, 438 U.S. at 579, 98 S.Ct. at 2950. As the Supreme Court recently stated in Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), “It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Id. 102 S.Ct. at 2535. Likewise, Congress never intended favorable treatment of some members of a plaintiffs’ age group to excuse discrimination against others. The ADEA, like Title VII, “does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her [protected class] ... were hired.... Every individual employee is protected against ... discriminatory treatment. ...” Id. (emphasis in original)."
},
{
"docid": "3934233",
"title": "",
"text": "when it is presented an opportunity to announce the adoption of a heightened standard. See Lemnitzer, 816 F.Supp. at 1448. Despite making it clear that § 1981, as well as Title VII, protects individuals who are members of historically or socially favored groups, the Supreme Court has not addressed whether the showing required to state a prima facie case must be modified or altered in a reverse discrimination case. The Supreme Court did find, however, that a reverse discrimination case challenging a county transit board’s voluntary affirmative action plan fit “readily within the analytical framework set forth in McDonnell Douglas ____” Johnson v. Transp. Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 1449, 94 L.Ed.2d 615 (1987). In view of the silence of the Supreme Court and the Fifth Circuit on this issue, this court declines to impose a heightened standard for establishing a prima facie case on a reverse discrimination claimant. This seems more in keeping with the purpose behind the anti-discrimination statutes. The principal focus of the statutes is the protection of the individual employee, rather than the protection of the protected group as a whole. See Connecticut v. Teal, 457 U.S. 440, 453-54, 102 S.Ct. 2525, 2533-34, 73 L.Ed.2d 130 (1982); Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 708, 98 S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th Cir.1984). Section 1981, like Title VII, does not “give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Teal, 457 U.S. at 455, 102 S.Ct. at 2535; Nix, 738 F.2d at 1186. Indeed, “a given employer may discriminate against an individual white worker even when no evidence demonstrates that the employer generally favors workers who belong to historically disadvantaged groups.” Notari, 971 F.2d at 590. Accordingly, this court finds no reason to impose a more onerous burden on reverse discrimination claimants for proceeding beyond the prima facie stage of litigation. In this case, however, the"
},
{
"docid": "22907123",
"title": "",
"text": "within the class protected by Title VII, that he applied and was qualified for an available position, that he was not hired despite his qualifications, and that the position remained open after his rejection and the employer continued to seek applicants of comparable qualifications. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802, 93 S.Ct. at 1824. In Loeb v. Textron, supra, the First Circuit used the elements of McDonnell Douglas to evaluate a claim of unlawful discharge under the ADEA. Because the complaint stemmed from firing rather than hiring, however, the court modified the four factors in order to produce an analogous inference. Complainant would be required to show that he was “qualified” in the sense that he was doing his job well enough to rule out the possibility that he was fired for inadequate job performance, absolute or relative. He would also have to show that his employer sought a replacement with qualifications similar to his own, thus demonstrating a continued need for the same services and skills. Without proof along these lines, the conceptual underpinnings of McDonnell Douglas would not remain recognizable. * * * A correct statement of the elements of a McDonnell Douglas prima facie case, adapted to present circumstances, therefore would have been that Loeb had to prove that he was in the protected age group, that he was performing his job at a level that met his employer’s legitimate expectations, that he nevertheless was fired, and that [his employer] sought someone to perform the same work after he left. [Loeb v. Textron, supra, 600 F.2d at 1013-14 (citations and footnotes omitted).] Halsell contends that he established a prima facie case of age discrimination according to the McDonnell Douglas factors as modified by Loeb v. Textron. Halsell, who was fifty-seven years old at the time of his discharge, fell within the age group protected by the ADEA, which applies to individuals between the ages of forty and seventy. See 29 U.S.C.A. § 631(a)(West Supp. 1982). After discharging Halsell on November 15, 1975, Kimtech appointed an engineer in his mid-thirties as Halsell’s replacement. Finally,"
},
{
"docid": "1579458",
"title": "",
"text": "older members of the nation’s workforce from discrimination premised on age differences. Lorillard v. Pons, 434 U.S. 575, 577, 98 S.Ct. 866, 868, 55 L.Ed.2d 40 (1978). As originally enacted, ADEA applied only to employees in the private sector; it prohibited employers from taking adverse employment action “because of” a protected worker’s age. 29 U.S.C. § 623 (Supp. IV 1980). In 1974 Congress amended ADEA to bring federal employees and applicants for federal positions under the Act’s protective umbrella. Section 633a requires federal employment decisions to “be made free from any discrimination based on age.” 29 U.S.C. § 633a (Supp. IV 1980). This section did not change the standard for establishing an ADEA violation, but simply extended the procedures and remedies available for vindicating age discrimination claims to employees of and applicants to the federal government. To make out a prima facie case of age discrimination against either government or private employers, a plaintiff must demonstrate facts sufficient to create a rea sonable inference that age discrimination was “a determining factor” in the employment decision. Such an inference is created if the plaintiff shows that he (1) belongs to the statutorily protected age group (40-70), (2) was qualified for the position, (3) was not hired, and (4) was disadvantaged in favor of a younger person. See Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir.1981); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). Cf. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (analogous elements under Title VII); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (same). Once a prima facie case has been established, the employer has the burden of producing evidence tending to show that the applicant was denied employment for a legitimate, nondiseriminatory reason. If the employer does so, and if his evidence is credible, the plaintiff must show by a preponderance of the evidence that the employer’s asserted legitimate reason is merely pretextual. See, e.g., Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1196 (8th Cir.1982), petition for cert."
},
{
"docid": "23425323",
"title": "",
"text": "barriers that favor certain groups over others. See Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971); see also United Steelworkers v. Weber, 443 U.S. 193, 207-09, 99 S.Ct. 2721, 2729-30, 61 L.Ed.2d 480 (1979) (private employer’s race-conscious affirmative action plan, designed to eliminate “conspicuous racial imbalance” and traditional patterns of segregation, not barred by Title VII); Johnson v. Transportation Agency, 748 F.2d 1308, 1314 (9th Cir.1984) (public agency’s affirmative action plan lawful and necessary to remedy long-standing imbalances in work force); cf. Fullilove v. Klutznick, 448 U.S. 448, 482, 100 S.Ct. 2758, 2776, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.) (Congress’ remedial actions need not be “colorblind”). But, at the same time, Title VII’s focus on the rights of individual members of protected classes is “unambiguous.” Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris, 463 U.S. 1073, 103 S.Ct. 3492, 3496, 77 L.Ed.2d 1236 (1983) (quoting Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 708, 98 S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978)). “It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 2535, 73 L.Ed.2d 130 (1982); see also Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir.1982) (“The fact that a particular screening device admits some members of a protected class into pool of job candidates does not demonstrate an absence of discrimination.”). Title VII protects individuals, as well as groups, from discrimination on the basis of group characteristics. We have already made it clear in another context that a plaintiff is not precluded from bringing suit merely because a person of the same protected class is selected for the challenged position. In Douglas v. Anderson, 656 F.2d 528 (9th Cir.1981), we held that a plaintiff suing under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982), may establish a prima"
},
{
"docid": "22865923",
"title": "",
"text": "likely than not that the employer did not act for its proffered reasons, the employer’s decision remains unexplained and the inferences from the evidence produced by the plaintiff may be sufficient to prove the ultimate fact of discriminatory intent. Ayala, 831 F.2d at 1319. C. The Supreme Court in McDonnell Douglas recognized that “[t]he facts necessarily will vary in Title VII cases” and that the specification of the prima facie proof required from the job applicant in that case “is not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. Not surprisingly, this prediction has proven true not only for Title VII cases, but also for age discrimination cases brought under the ADEA. In particular, courts have run into trouble applying the McDonnell Douglas prima facie proof formulation to cases brought by plaintiffs discharged pursuant to a reduction-in-force (“RIF”). See Matthews, 769 F.2d at 1217 (7th Cir.1985); Williams v. General Motors Corp., 656 F.2d 120, 128 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). Unlike the typical discharge case, an employer who terminates employees pursuant to a RIF rarely replaces the employees it let go. Matthews, 769 F.2d at 1217. An employee challenging his treatment in a RIF case, therefore, cannot satisfy the fourth element of the McDonnell Douglas prima facie proof formulation for non-RIF discharge cases — that the employer sought a replacement for him. This creates a problem, because the first three elements of the prima facie proof formulation cannot, standing alone, create a presumption of discrimination. In other words, because the ADEA merely mandates that an employer reach employment decisions without regard to age and does not require that an employer accord special treatment to members of the protected age group, Williams, 656 F.2d at 129, the fact that a protected employee who was performing his job well was fired cannot, by itself, trigger a presumption of discrimination under the ADEA. There has to be something more— an additional showing that creates an inference of discrimination such"
},
{
"docid": "23425324",
"title": "",
"text": "S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978)). “It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Connecticut v. Teal, 457 U.S. 440, 455, 102 S.Ct. 2525, 2535, 73 L.Ed.2d 130 (1982); see also Peters v. Lieuallen, 693 F.2d 966, 970 (9th Cir.1982) (“The fact that a particular screening device admits some members of a protected class into pool of job candidates does not demonstrate an absence of discrimination.”). Title VII protects individuals, as well as groups, from discrimination on the basis of group characteristics. We have already made it clear in another context that a plaintiff is not precluded from bringing suit merely because a person of the same protected class is selected for the challenged position. In Douglas v. Anderson, 656 F.2d 528 (9th Cir.1981), we held that a plaintiff suing under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982), may establish a prima facie case under McDonnell Douglas even though the position was filled by a person who was also within the class protected by the ADEA. See 656 F.2d at 532 (requirement that person selected to fill challenged position not be a member of plaintiff’s protected class “adds a gloss that is absent from McDonnell Douglas ”). Other circuits have interpreted the fourth element of McDonnell Douglas in the same manner, both in ADEA cases, see, e.g., Loeb v. Textron, Inc., 600 F.2d 1003, 1013 & n. 9 (1st Cir.1979), and in Title VII cases, see, e.g., Jones v. Western Geophysical Co. of America, 669 F.2d 280, 284 (5th Cir.1982) (Black plaintiff’s replacement by another Black may have been a pretextual device and did not preclude finding “an inference of discrimination sufficient to satisfy the fourth element of McDonnell Douglas”). We see no reason to read McDonnell Douglas differently in the Title VII context than we do when suit is brought under the ADEA. We need not now decide whether identity of class membership may ever be"
},
{
"docid": "23425325",
"title": "",
"text": "facie case under McDonnell Douglas even though the position was filled by a person who was also within the class protected by the ADEA. See 656 F.2d at 532 (requirement that person selected to fill challenged position not be a member of plaintiff’s protected class “adds a gloss that is absent from McDonnell Douglas ”). Other circuits have interpreted the fourth element of McDonnell Douglas in the same manner, both in ADEA cases, see, e.g., Loeb v. Textron, Inc., 600 F.2d 1003, 1013 & n. 9 (1st Cir.1979), and in Title VII cases, see, e.g., Jones v. Western Geophysical Co. of America, 669 F.2d 280, 284 (5th Cir.1982) (Black plaintiff’s replacement by another Black may have been a pretextual device and did not preclude finding “an inference of discrimination sufficient to satisfy the fourth element of McDonnell Douglas”). We see no reason to read McDonnell Douglas differently in the Title VII context than we do when suit is brought under the ADEA. We need not now decide whether identity of class membership may ever be relevant to a determination whether a plaintiff has established a prima facie case under the McDonnell Douglas test. Rather, we need say only that, contrary to the district court’s assumption, such identity does not automatically preclude a plaintiff from meeting the test. When the individual who was promoted receives the challenged position only after the plaintiff has filed a discrimination charge, the fact that both individuals are members of the same protected class does not rebut the otherwise established inference of discrimination. In the case before us, there is no bar to plaintiff’s establishing a prima facie case under McDonnell Douglas. Contrary to AT & T’s suggestion, we think it clear that a plaintiff who satisfies the four elements of McDonnell Douglas has necessarily established the requisite inference of discrimination. Equally important, however, it is possible for a plaintiff to establish a prima facie case without satisfying the McDonnell Douglas test. Compliance with that standard is only one method of establishing a prima facie case. International Brotherhood of Teamsters v. United States, 431 U.S. 324,"
},
{
"docid": "5067935",
"title": "",
"text": "120,129 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); cf. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 1096-97, 67 L.Ed.2d 207 (1981) (Title VII does not demand preferential treatment to minorities or women). In order to establish a prima facie case of age discrimination, the plaintiff must satisfy the four criteria set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973): The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. Although McDonnell Douglas was a Title VII case, the criteria promulgated therein have been applied to ADEA cases. E.g., Smithers v. Bailar, 629 F.2d 892, 894 (3d Cir.1980); Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978); accord, Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th Cir. 1982); Williams v. General Motors Corp., 656 F.2d 120, 127 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); Loeb v. Textron, Inc., 600 F.2d 1003, 1014-16 (1st Cir.1979). As modified to fit age discrimination cases, McDonnell Douglas requires a plaintiff to show he is a member of the protected age group, i.e., at least forty but not older than seventy, 29 U.S.C. § 631 (Supp.1982); he applied and was qualified for the position; he was not appointed despite his qualifications; and the position was ultimately filled by a younger person. See Smithers v. Bailar, supra, 629 F.2d at 895. However, the McDonnell Douglas criteria should not be applied in a “rigid, mechanized or ritualistic”"
},
{
"docid": "22128285",
"title": "",
"text": "of the four elements of the prima facie test they recite. The original fourth element set out in McDonnell Douglas, however, did not require the plaintiff to show that the position he sought was filled by someone outside the protected class but merely required him to show that, \"after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). . Hooks also involved a failure-to-promote claim. See Hooks v. Diamond Crystal Specialty Foods, Inc., 997 F.2d 793, 795 (10th Cir.1993), overruled in part on other grounds, Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir.1995). However, with respect to that claim, the court did not recite a prima facie test that implicated the physical characteristics of the individual who received the promotion. See id. at 796. . If a plaintiff is able to establish a prima facie case under the McDonnell Douglas analysis, she has merely created a rebuttable presumption that her employer unlawfully discriminated against her. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the racial characteristics of a plaintiff's replacement were applicable at the prima facie stage, a plaintiff would effectively be required to raise the inference not only that she was discriminated against but that her employer also discriminates against every other employee or potential employee who shares her protected attribute. Cf. Connecticut v. Teal. 457 U.S. 440, 455. 102 S.Ct. 2525. 73 L.Ed.2d 130 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.”) The replacement of a terminated plaintiff with an individual who shares the plaintiff's protected attribute does not necessarily negate the inference that the plaintiff was unlawfully discriminated against. . This position was recognized, but not applied, in Pitre v. Western Elec. Co., 843 F.2d 1262, 1272 (10th Cir.1988), a case"
},
{
"docid": "5067936",
"title": "",
"text": "VII case, the criteria promulgated therein have been applied to ADEA cases. E.g., Smithers v. Bailar, 629 F.2d 892, 894 (3d Cir.1980); Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978); accord, Ackerman v. Diamond Shamrock Corp., 670 F.2d 66, 69 (6th Cir. 1982); Williams v. General Motors Corp., 656 F.2d 120, 127 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982); Loeb v. Textron, Inc., 600 F.2d 1003, 1014-16 (1st Cir.1979). As modified to fit age discrimination cases, McDonnell Douglas requires a plaintiff to show he is a member of the protected age group, i.e., at least forty but not older than seventy, 29 U.S.C. § 631 (Supp.1982); he applied and was qualified for the position; he was not appointed despite his qualifications; and the position was ultimately filled by a younger person. See Smithers v. Bailar, supra, 629 F.2d at 895. However, the McDonnell Douglas criteria should not be applied in a “rigid, mechanized or ritualistic” manner. “[I]t is merely a sensible orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). See McDonnell Douglas, supra, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The central inquiry remains whether the employer discriminated against the employee because of his age. Cf. Furnco Construction, supra, 438 U.S. at 577, 98 S.Ct. at 2949. Once the plaintiff has made out a prima facie case, the defendant has the burden of articulating a legitimate, non-discriminatory reason for rejecting plaintiff. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 257, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). Once the defendant has produced evidence that would allow the conclusion that the employment decision was not based on a discriminatory animus, the plaintiff has the opportunity to show that the proffered reason is a mere pretext. Id. at 255-56, 101 S.Ct. at 1094-95. Friedman’s"
},
{
"docid": "22128286",
"title": "",
"text": "her employer unlawfully discriminated against her. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the racial characteristics of a plaintiff's replacement were applicable at the prima facie stage, a plaintiff would effectively be required to raise the inference not only that she was discriminated against but that her employer also discriminates against every other employee or potential employee who shares her protected attribute. Cf. Connecticut v. Teal. 457 U.S. 440, 455. 102 S.Ct. 2525. 73 L.Ed.2d 130 (1982) (“It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.”) The replacement of a terminated plaintiff with an individual who shares the plaintiff's protected attribute does not necessarily negate the inference that the plaintiff was unlawfully discriminated against. . This position was recognized, but not applied, in Pitre v. Western Elec. Co., 843 F.2d 1262, 1272 (10th Cir.1988), a case involving disparate treatment claims by female employees. . The elimination of the position, however, does not necessarily eviscerate a plaintiff's claim that her discharge was racially motivated. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (emphasizing that the prima facie case is a flexible standard that may be modified to accommodate different factual situations). . Because the district court ruled that Perry had failed to present a prima facie case of racial discrimination, the court did not proceed to the next level of the McDonnell Douglas analysis and address whether Defendants had articulated a legitimate, nondiscriminatory reason for discharging Perry. In light of the lack of a ruling from the district court, we refrain from continuing the McDonnell Douglas analysis and leave that and any attendant issues to be addressed by the district court on remand and upon proper motion of the parties. . In retaliation cases, a plaintiff establishes a prima facie case by showing that: (1) she engaged in protected opposition to"
},
{
"docid": "23381432",
"title": "",
"text": "with the company’s discriminatory transfer policy — and then at the price of an early demotion — cannot excuse the denial of equal opportunity to other members of the protected class. Cf. Furnco Construction Corp. v. Waters, supra, 438 U.S. at 579, 98 S.Ct. at 2950. As the Supreme Court recently stated in Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), “It is clear that Congress never intended to give an employer license to discriminate against some employees on the basis of race or sex merely because he favorably treats other members of the employees’ group.” Id. 102 S.Ct. at 2535. Likewise, Congress never intended favorable treatment of some members of a plaintiffs’ age group to excuse discrimination against others. The ADEA, like Title VII, “does not permit the victim of a facially discriminatory policy to be told that he has not been wronged because other persons of his or her [protected class] ... were hired.... Every individual employee is protected against ... discriminatory treatment. ...” Id. (emphasis in original). TWA and ALPA rely principally on two statutory defenses to rebut appellants’ prima facie case. First, TWA asserts that its contested practices are part of a bona fide seniority system and thus liability is foreclosed under 29 U.S.C. § 623(f)(2). Appellants, however, do not challenge the operation of the seniority system, but their summary exclusion from it at age 60. The employment practice at issue in this lawsuit — the severing of age 60 captains from the company — is in no way mandated by the negotiated seniority system. That system provides only that seniority rights shall be forfeited upon severance from the company, but it does not, and lawfully cannot, specify that pilots who attain age 60 shall be severed. See id. § 623(f)(2) (no bona fide seniority system “shall require or permit the involuntary retirement of any individual ... [protected under the Act] because of the age of such individual”). TWA’s practice, “which equates involuntary retirement as a captain at age 60 with a complete severance from the company,” Stone v. Western, supra,"
}
]
|
129358 | S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983); Philips Business Systems v. Executive Communications Systems, 744 F.2d 287, 290-91 (2d Cir.1984); Note, 99 Harv. L.Rev. 828 (1986); Note, 52 N.C.L.Rev. 1091, 1140-43 (1974). It limits recovery against those who obtain or implement court orders, which have the force of law, and protect them from being subjected to unlimited liability. The risk created by the rule limiting recovery to the amount of the bond is that an enjoined party may be unable to obtain adequate redress. This risk may be reduced if there is a waiver of the rule limiting relief in such cases to the amount of the bond as a condition for granting interim relief, as in REDACTED modified 883 F.2d 333 (5th Cir.1989). A Continuum order, while at times valuable, is not a panacea. It increases the countervailing risk to the applicant that it will be subjected to a nettlesome lawsuit in the event that the interim order — however appropriate and proper — is vacated because of further developments. If representations are made that an emergency exists when it does not, accompanied by persuasive but inaccurate representations submitted to support minimization or denial of an injunction bond, the victim of an ill-advised ex parte temporary restraining order may face difficulties in obtaining recompense. IV Judges can and do decline to issue ex parte orders when such orders are sought without adequate factual justification. At the same time, | [
{
"docid": "17704526",
"title": "",
"text": "court. The STAY of the district court’s order dissolving the injunction and increasing the amount of the bond is CONTINUED in effect pending further orders of this court. . See 11 U.S.C. § 362. . See Coyne-Delany v. Capital Development Bd., 717 F.2d 385, 391 (7th Cir.1983). . Id. at 393; Buddy Systems, Inc. v. Exer-Genie, Inc., 545 F.2d 1164, 1168 (9th Cir.1976), cert. denied, 431 U.S. 903, 97 S.Ct. 1694, 52 L.Ed.2d 387 (1977); 11 Wright & Miller § 2973, pp. 652-65; Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv.L.R. 828, 832-33 (1986). . Note, 99 Harv.L.Rev. at 833. . 11 Wright & Miller, Federal Practice & Procedure § 2954, p. 524. . See Monroe Div. Litton Business Sys. Inc. v. De Bari, 562 F.2d 30, 32 (10th Cir.1977); Continental Co. v. Frontier Refining Co., 338 F.2d 780, 782-83 (10th Cir.1964). . Scherr v. Volpe, 466 F.2d 1027, 1035 (7th Cir.1972). . W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983); First Mississippi National Bank v. Ladner, 799 F.2d 1023, 1026 (5th Cir.1986); see Note, 99 Harv.L.Rev. at 832-33. . See Note, 99 Harvard L.Rev. at 829-30 & nn. 8-9. . 11 Wright & Miller, Federal Practice & Procedure § 2954, pp. 525-26."
}
]
| [
{
"docid": "9983555",
"title": "",
"text": "under the RLA. See E. Airlines, 925 F.2d at 9. Under that statute, a party obtaining an injunction must post an undertaking “sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney’s fee) and expense of defense against the order.” 29 U.S.C. § 107. Here, the nisi prius court, as part of its order for preliminary injunctive relief, rejected the defendants’ more extravagant damage submissions and required ALPA to post only a $50,000 bond. The defendants protest that the bond amount is too low and invite us to increase the amount retroactively. We decline the invitation. We need not pass upon the adequacy of the bond amount. Even if a $50,000 bond was plainly inadequate to compensate the defendants for their anticipated damages and attorneys’ fees — a matter on which we take no view — we lack authority to modify the district court’s decision on the amount of the bond retroactively. Once a court determines the appropriate amount of an injunction bond, the plaintiff is free to decide that it is better to forgo the injunction than to post the bond and risk losing the penal sum if the injunction is later deemed to have been improvidently issued. Retroactively increasing the amount of a bond would deprive the plaintiff of its right to make that decision on an informed basis. Thus, it would be grossly unfair for us to increase the penal sum retroactively. Y. CONCLUSION We need go no further. More than anything else, this case illustrates that judicial remedies under the RLA are only available in special circumstances. Whatever we may think of the defendants’ actions, our jurisdiction is severely limited, and the parties must live with the bargain that they struck in the CBA. On remand, ALPA will have an opportunity to demonstrate, consistent with this opinion, that the defendants have tried to evade those obligations in an impermissible manner. Failing that, the union must take its grievances elsewhere. Vacated and remanded for further"
},
{
"docid": "23281919",
"title": "",
"text": "possible cause of action which might be asserted against him, and then to defend simultaneously against such straw men on pain of being overcome at the appellate level on a cause of action which the plaintiff had theretofore never pressed. Accordingly, we will not now consider whether System is entitled to any relief on a theory of unfair competition. This does not preclude System from pursuing that cause of action in an appropriate manner in any further proceedings in this case in the district court, subject, of course, to Scientific’s right of defense. IV. The district court failed to require that System post a security bond in support of the preliminary injunction awarded to it. In so doing, the district court committed an error of law which constitutes an independent ground for reversal. An award of a preliminary injunction without requiring a bond by the plaintiff violates Rule 65(c) of the Federal Rules of Civil Procedure which provides in pertinent part: Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. System contends that although the language of Rule 65(c) appears mandatory, the requirement of a security bond is actually within the discretion of the district court. In support of its argument, System cites Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780 (9th Cir. 1964), and Powel-ton Civic Home Owners v. HUD, 284 F.Supp. 809 (E.D.Pa.1968), but neither case is on point. Powelton holds that a party who has not been enjoined has no right to demand that another party post a security bond. In the instant case, of course, Scientific and Dittler have both been enjoined. Continental Oil holds that the requirement for a bond may be waived by the district court where the grant of the injunction carries no risk of monetary loss to the defendant. In the case sub judice, the injunction"
},
{
"docid": "23398348",
"title": "",
"text": ". Though not in all states, New Jersey and Pennsylvania, for example, in their counterparts of the Norris-LaGuardia Act permit the recovery of attorneys’ fees for the erroneous issue of an injunction against a labor union. See N.J.S.A. 2AJ5-51, 15-52, 15-53; 43 Pa.Stat.Ann. §§ 206f, 206i, 206j. . Appellees also cite Powelton Civic Home Owners Ass’n. v. Department of Housing anti Urban Development, 284 F. Supp. 809 (E.D.Pa.1908); Monolith Portland Midwest Co. v. Reconstruction Finance Corp., 128 F.Supp. 824, 878 (S.D. Cal.1955). These cases are not in point on the interpretation of the bond, even though they do support the proposition that attorneys’ fees are not ordinarily an element of damages in the federal courts. KALODNER, Circuit Judge (concurring in part and dissenting in part): I agree with the reversal of the District Court’s Order. I disagree, however, with the majority’s direction to the District Court to enter a judgment, in the instant proceedings, awarding the stipulated attorneys’ fees and expenses, except for statutory costs on the prior appeal. In my opinion, since the defendants below have elected to seek recovery of their reasonable attorneys’ fees and expenses in the same proceedings in which the preliminary injunctions were im providently issued they are for that reason limited in their recovery to the amounts specified in the injunction bonds posted in these proceedings, under Section 7(e) of the Norris-LaGuardia Act, 29 U.S.C.A. § 107(e). Section 7(e) provides in relevant part: “ . . . No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable■ costs (together with a reasonable attorney’s fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court. “The undertaking mentioned in this section shall be understood to signify an agreement entered into by"
},
{
"docid": "22135730",
"title": "",
"text": "with his employer. Compare, e.g., McLendon v. Continental Group, Inc., 602 F.Supp. 1492, 1511— 12 (D.N.J.1985) (section 1964(d) does not reach conspiracies between an employer and employee) with, e.g., Callan v. State Chem. Mfg. Co., 584 F.Supp. 619, 623 (E.D.Pa.1984) (section 1964(d) does reach conspiracies between an employer and employee). As a general matter, the courts of appeals will not consider arguments raised on appeal for the first time in a reply brief. See, e.g., Wright v. Holbrook, 794 F.2d 1152, 1156 (6th Cir.1986) (collecting cases). Because Rose was decided over three months before appellants filed their brief in this court, we see no exceptional circumstances to justify deviating from the general rule in this case. Appellants may, if necessary, present these arguments to the district court on remand, at a time when appellees will have fair opportunity to respond to them. . Feit & Drexler and Roland clearly envision situations in which a preliminary injunction may issue to protect a potential final judgment that is legal in nature — the holding of Teradyne. To that extent, they provide further support for the narrow reading of De Beers endorsed above in Part II. Foltz is more equivocal on this point, for the underlying claim in that case, an action under section 502(a)(1)(B) of ERISA, was equitable in nature, see Pane v. RCA Corp., 868 F.2d 631, 636 (3d Cir.1989), even though it sought a monetary recovery. . Plaintiffs too derive some protection from the bond requirement, for defendants injured by wrongfully issued preliminary injunctions can recover only against the bond itself. See W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983). . Commentators have suggested excusing the bond requirement “when plaintiff is indigent or is suing in the public interest.\" See Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv.L.Rev. 828, 833 (1986). We believe that these exceptions, if they are to be drawn at all, should be drawn narrowly. In this case, we need not determine whether recognizing either of them is"
},
{
"docid": "22135731",
"title": "",
"text": "that extent, they provide further support for the narrow reading of De Beers endorsed above in Part II. Foltz is more equivocal on this point, for the underlying claim in that case, an action under section 502(a)(1)(B) of ERISA, was equitable in nature, see Pane v. RCA Corp., 868 F.2d 631, 636 (3d Cir.1989), even though it sought a monetary recovery. . Plaintiffs too derive some protection from the bond requirement, for defendants injured by wrongfully issued preliminary injunctions can recover only against the bond itself. See W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983). . Commentators have suggested excusing the bond requirement “when plaintiff is indigent or is suing in the public interest.\" See Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv.L.Rev. 828, 833 (1986). We believe that these exceptions, if they are to be drawn at all, should be drawn narrowly. In this case, we need not determine whether recognizing either of them is ever appropriate. This record contains no evidence that the plaintiffs are indigent. Moreover, we believe that suits brought to recover money lost speculating in penny stocks are not so overwhelmingly suffused with the public interest as to justify the judicial rewriting of rule 65(c)."
},
{
"docid": "20359327",
"title": "",
"text": "granted,” and finding that courts as a rule presume damages against the bond if the preliminary injunction is wrongful); Hoxworth, 903 F.2d at 210; Instant Air, 882 F.2d at 804; Continuum Co., Inc., 873 F.2d at 803 (first purpose of bond requirement is that “it assures the enjoined party that it may readily collect damages from the funds posted or the surety provided in the event that it was wrongfully enjoined, without further litigation and without regard to the possible insolvency of the assured,” citing Coyne-Delany Co. v. Capital Dev. Bd., 717 F.2d 385, 391-92 (7th Cir.1983)); Coyne-Delany, 717 F.2d at 391-92. The second purpose of the bond requirement is to deter “rash” applications for interlocutory orders, because the financial obligation encourages action with a cooler head and careful thought beforehand. Edgar v. MITE Carp., 457 U.S. 624, 649, 102 S.Ct. 2629, 2644, 73 L.Ed.2d 269 (1982) (Stevens, J., concurring) (“Since a preliminary injunction may be granted on a mere probability of success on the merits, generally the moving party must demonstrate confidence in his legal position by posting bond in an amount sufficient to protect his adversary from loss in the event that future proceedings prove that the injunction issued wrongfully.”); National Kidney Patients Assoc., 958 F.2d at 1134 (bond requirement deters “flimsy claims”); Instant Air, 882 F.2d at 804 (stating this purpose of bond requirement); and compare Continuum Co., Inc., 873 F.2d at 803 (second purpose of bond requirement is that “it provides the plaintiff with notice of the maximum extent of its potential liability”). The bond requirement is particularly significant for at least two reasons. First, the defendant who has been wrongfully enjoined has no recourse for damages in the absence of a bond. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983) (“A party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond.”); Cagan v. Mutual Benefit Life Ins. Co., 28 F.3d 654, 656 (7th Cir.1994) (“in"
},
{
"docid": "20359328",
"title": "",
"text": "legal position by posting bond in an amount sufficient to protect his adversary from loss in the event that future proceedings prove that the injunction issued wrongfully.”); National Kidney Patients Assoc., 958 F.2d at 1134 (bond requirement deters “flimsy claims”); Instant Air, 882 F.2d at 804 (stating this purpose of bond requirement); and compare Continuum Co., Inc., 873 F.2d at 803 (second purpose of bond requirement is that “it provides the plaintiff with notice of the maximum extent of its potential liability”). The bond requirement is particularly significant for at least two reasons. First, the defendant who has been wrongfully enjoined has no recourse for damages in the absence of a bond. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983) (“A party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond.”); Cagan v. Mutual Benefit Life Ins. Co., 28 F.3d 654, 656 (7th Cir.1994) (“in all but exceptional cases the lack of an injunction bond means the unavailability of damages for wrongful injunction,” citing W.R. Grace & Co., 461 U.S. at 770 n. 14, 103 S.Ct. at 2185 n. 14, and finding no such exceptional case where the enjoined party “did not remind the district court of the need for a bond under Fed.R.Civ.P. 65(c), did not ask [the appellate court] to stay the injunction, and to this day has not attempted to quantify the damages from the delay [caused by the injunction]”). In Continuum Co., Inc., 873 F.2d at 803, the Fifth Circuit Court of Appeals suggested a corollary to this first reason, stating that the bond gives the plaintiff notice of the extent of its potential liability. This notice arises • since the amount of the bond “is the limit of the damages the defendant can obtain for a wrongful injunction, ... .provided the plaintiff was acting in good faith.” [Coyne-Delany, 717 F,2d at 393; Buddy Sys., Inc. v. Exer-Genie, Inc., 545 F.2d 1164, 1168 (9th Cir.1976), cert."
},
{
"docid": "23106687",
"title": "",
"text": "district court preliminarily enjoined plaintiffs from using Merrill Lynch customer records or soliciting or accepting business from any Merrill Lynch client. The court conditioned the preliminary injunction upon Merrill Lynch’s posting a $100,000 bond pursuant to Fed.R.Civ.P. 65(c). On March 16, 1989, after a two-day arbitration, the NYSE panel, “in full and final settlement” of the matter, terminated the preliminary injunctions in effect against the plaintiffs but awarded Merrill Lynch monetary damages of $80,000 against plaintiff Fein alone. Thereafter, plaintiffs moved in the district court for recovery against the bond for “wrongful injunction,” claiming the loss of “substantial commissions and long-time clients” allegedly sustained during the three weeks the injunction was in effect. The district court denied the motion in an order dated September 25, 1989. This appeal followed. DISCUSSION Under Fed.R.Civ.P. 65(c), a party subjected to a preliminary injunction in district court who is later found to have been “wrongfully enjoined” may recover against the security bond damages suffered as a result of the injunction. See, e.g., Edgar v. MITE Corp., 457 U.S. 624, 649, 102 S.Ct. 2629, 2644, 73 L.Ed.2d 269 (1982) (Stevens, J., concurring); Philips Business Systems, Inc. v. Executive Communications Systems, Inc., 744 F.2d 287, 290 (2d Cir.1984); Medafrica Line, S.P.A. v. American West African Freight Conference, 654 F.Supp. 155, 156 (S.D.N.Y.1987). Plaintiffs assert that the preliminary injunction later vacated by the arbitrators was “wrongful” because (1) the district court was without jurisdiction to enter an injunction pending arbitration and (2) the arbitrators’ ultimate disposition rendered the injunction substantively wrongful. We disagree with the first contention but agree with the second. I. Challenging previous decisions of this court and the weight of federal appellate authority, Blumenthal and Fein assert that the FAA bars a federal district court from issuing a preliminary injunction pending arbitration. They ground their argu ment in the language of the statute and the federal policy favoring arbitration. Plaintiffs’ statutory argument is based on Section 4 of the FAA. That section provides, in pertinent part, that a party seeking to compel arbitration pursuant to a written agreement “may petition any United States district"
},
{
"docid": "10929611",
"title": "",
"text": "for the Court to exercise its discretion to require the BMWE to ensure that its members did not resort to illegal self help. See Long Island R.R. v. International Ass’n of Machinists, 874 F.2d 901, 911 (2d Cir.1989) (approving district court injunction directing railroad union to communicate provisions of injunction to union members and to take affirmative steps to prevent disruptions of rail service), cert. denied, 493 U.S. 1042, 110 S.Ct. 836, 107 L.Ed.2d 831 (1990). Because the Court does not find that its injunction is impermis-sibly broad, the BMWE’s request to alter the language of the injunction is denied. C. Adequacy of the Bond The BMWE also argues that this Court erred in requiring the carriers to post a nominal bond of $1000. The BMWE asserts that the bond is inadequate under § 7 of the Norris-LaGuardia Act, which requires a party obtaining an injunction to: file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney’s fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court. 29 U.S.C. § 107. The BMWE further notes that a party injured by an erroneous injunction has no action for damages in the absence of a bond and is limited to recovering the amount of a bond. International Ass’n of Machinists and Aerospace Workers v. Eastern Airlines, Inc., 925 F.2d 6, 10 (1st Cir.1991). The BMWE argues that the $1000 bond is insufficient to compensate it for its costs and attorney’s fees in the event that the injunction is found to be issued in error. Accordingly, the BMWE seeks a bond of $200,000. The plaintiffs argue that the nominal bond is appropriate in this case. They point out that the BMWE never objected previously to a nominal bond. They also argue that § 7 of the Norris-LaGuardia Act does"
},
{
"docid": "19844009",
"title": "",
"text": "the absence of malicious prosecution, the seeking of injunctive relief is not a tort. However, a party obtaining a preliminary injunction may be required, as a condition of obtaining the injunction, to provide a bond or other undertaking to indemnify the defendant for injuries resulting from the injunction, if the injunction is later overturned. In such a case recovery by the injured party is limited to the amount of the bond or undertaking. Associated General Contractors v. Illinois Conference of Teamsters, 486 F.2d 972, 975 n. 6 (7th Cir. 1973); United Motors Service, Inc. v. Tropic-Aire, Inc., 57 F.2d 479, 483 (8th Cir. 1932); 7 J. Moore, Federal Practice ¶ 65.10[1], at 65-98 (2d ed. 1975); Note, Recovery of Damages on Injunction Bonds, 32 Colum.L.Rev. 869, 871 (1932). The Court of Appeals for the Second Circuit summarized the rule as follows (Judge Learned Hand, joined by Judges Augustus Hand and Chase): “Any one who acts honestly and does not subject himself to a charge of malicious prosecution is as free from liability in invoking the action of a court as the court itself, and what he does under its order is not a wrong. The party aggrieved has no remedy except in so far as the court may have protected him by bond or otherwise, as a condition upon the order, and as security against its own errors.” In Re Spencer Kellogg & Sons, 52 F.2d 129, 135 (2d Cir. 1931). Under this rule, the maximum liability of NMU with respect to the preliminary injunction is the amount of the $10,000 bond. As already described, this bond runs solely in favor of Commerce. I have not made detailed findings with respect to the damages of Commerce resulting from the injunction. However, it is clear that such damages are in excess of $10,000. I hold that Commerce is entitled to judgment against NMU for $10,000 in 71 Civ. 582. Since there is no bond in favor of Vantage, I hold that the complaint of Vantage in 72 Civ. 4619 must be dismissed. Benz v. Compania Naviera Hidalgo, S.A., 205 F.2d 944,"
},
{
"docid": "6054239",
"title": "",
"text": "requirement very strictly. Hoxwortk, 903 F.2d at 210. It has noted that [although the amount of the bond is left to the discretion of the court, the posting requirement is much less discretionary. While there are exceptions, the instances in which a bond may be required are so rare that the requirement is almost mandatory. We have previously held that absent circumstances where there is no risk of monetary loss to the defendant, the failure of a district court to require a successful applicant to post a bond constitutes reversible error. Id. at 210. An incorrect interlocutory order “may harm the defendant and a bond provides a fund to use to compensate incorrectly enjoined defendants.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 804 (3d Cir.1989). A bond also “deters rash applications for interlocutory orders; the bond premium and the chance of liability on it cause plaintiff to think carefully beforehand.” Id. The protection afforded by the bond requirement is important for two reasons. It is generally settled that, with rare exceptions, a defendant wrongfully enjoined has recourse only against the bond. As the Supreme Court has noted, “A party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond.” W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum and Plastic Workers, 461 U.S. 757, 770 n. 14,103 S.Ct. 2177, 2186 n. 14, 76 L.Ed.2d 298 (1983). And since a preliminary injunction is granted before a trial on the merits, it has a higher possibility of being wrong. Clark v. K-Mart, 979 F.2d 965, 968 (3d Cir.1992). Under certain narrowly drawn circumstances, the Court may dispense with the bond requirement. Temple University v. White, 941 F.2d 201, 219-20 (3d Cir.1991), cert. denied sub. nom. Snider v. Temple University, 502 U.S. 1032, 112 S.Ct. 873, 116 L.Ed.2d 778 (1992). The Temple University court relied on a two-part test. First, at least in noncommercial cases, the court should consider the possible loss to the enjoined party together with the"
},
{
"docid": "2299233",
"title": "",
"text": "ALVIN B. RUBIN, Circuit Judge: In our prior order, we continued our stay of the district court’s order increasing the amount of the bond and dissolving the injunction contingent upon Continuum continuing its bond of $200,000 in full force and filing an undertaking with this court that the amount of the bond will not limit the amount of damages for which it might be liable, should it be liable for any, as a result of a wrongful issuance of the injunction. In its Motion to Reconsider, Incepts claims: we lacked jurisdiction over Continuum’s appeal; we considered evidence outside of the record; and the undertaking filed by Continuum is inadequate to protect Incepts’ rights should the injunction be found to have been wrongfully issued. Continuum appealed the district court’s order continuing the injunction in force on the condition that the bond be increased from $200,000 to $2,000,000, and ordering the injunction dissolved if Continuum did not file the increased bond by April 14, 1989. Had the district court merely increased the bond, that order may not have been immediately appealable as an interlocutory order under 28 U.S.C. 1292(a)(1). The threat of dissolution implicit in such an increase, insufficient to warrant immediate appellate review, is made explicit, however, when the court orders the injunction to be dissolved on a certain date. Just as a district court’s opinion is made appealable when the court enters final judgment, so is a court’s interlocutory order made immediately appeal-able when the court actually sets aside an injunction. The district court’s issuance of an order executing its opinion infuses that opinion with the finality necessary to warrant appellate review. When determining that there was a “substantial likelihood that Continuum may obtain an order continuing the injunction in effect and reducing the amount of the bond,” we relied, in part, on an affidavit not contained in the record, but submitted by Continuum with its emergency motion for a stay. Incepts claims that we should not have considered Gilmore’s affidavit under F.R.A.P. 10(a); Continuum responds that it properly submitted the affidavit under F.R.A.P. 27(a). If Continuum’s financial condition indicates"
},
{
"docid": "23398340",
"title": "",
"text": "v. Ritholz, 101 F.2d 883 (7th Cir. 1939); Peckham v. Union Finance Co., 60 App.D.C. 104, 48 F.2d 1016 (1931); Mayflower Industries v. Thor Corp., 15 N.J.Super. 139, 152, 83 A.2d 246, 252 (Ch.Div.1951); F. Harper & F. James, The Law of Torts § 4.8 at 326 (1956). Probably the possibility of a recovery against a plaintiff who had proceeded without probable cause was the reason why Congress added the last sentence of § 7 of the Norris-LaGuardia Act, 29 U.S.C. § 107: “But nothing in this section contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity.” Thus the civil action for proceeding maliciously without probable cause still exists in labor dispute cases. The question, then, is how far Congress intended to go beyond the remedy which existed at common law. Section 7 does say that an amount shall “be fixed by the court,” but in the context this language seems to modify the words “adequate security” rather than the word “undertaking.” Read thus, the amount to be fixed by the court refers to the limit of liability of a surety or the amount of collateral security required in the absence of a surety. The plaintiff’s required undertaking would then read “sufficient to recompense those enjoined for any loss, expense, or damage . including all reasonable costs (together with a reasonable attorney’s fee) and expenses of defense against the order ..” Such a reading would permit recovery against the plaintiff in excess of the amount fixed in the bond. The language “[n]o temporary injunction shall be issued except on condition” seems to make the undertaking to recompense for damage an implied condition of every labor dispute injunction. Such a reading would permit recovery even in the absence of a bond. One district court considering that issue wrote: “While the statute provides for a bond, and, while it is manifestly true that the bond did not comply with the provisions of the statute, it might be that the labor"
},
{
"docid": "149616",
"title": "",
"text": "F.2d 1073, 1079 (9th Cir.), vacated on other grounds, 429 U.S. 807, 97 S.Ct. 43, 50 L.Ed.2d 68 (1976); United States Steel Corp. v. United Mine Workers of Am., 456 F.2d 483, 489 (3d Cir.), cert. denied, 408 U.S. 923, 92 S.Ct. 2492, 33 L.Ed.2d 334 (1972). Having obtained the relief it sought by use of the bond, the Union should not now object to making good the contract by which it obtained that relief. See United States v. The John Barth Co., 279 U.S. 370, 376, 49 S.Ct. 366, 367, 73 L.Ed. 743 (1929). ATTORNEYS’ FEES IN EXCESS OF THE BOND In W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983), the Court, citing the seminal case of Russell v. Farley, 105 U.S. 433, 437, 26 L.Ed. 1060 (1882), stated that a party injured by the erroneous issuance of an injunction “has no action for damages in the absence of a bond.” 461 U.S. at 770 n. 14, 103 S.Ct. at 2185 n. 14. It follows that, if a bond is posted, liability is limited to the terms of the bond in the absence of a showing of bad faith or malicious prosecution. Over a century ago, the Supreme Court declared that this principle, known generally as the injunction bond rule, would be applied in the federal courts, Meyers & Levi v. Block, 120 U.S. 206, 211-12, 7 S.Ct. 525, 527-28, 30 L.Ed. 642 (1887), and the rule since has been applied in many of the circuits. See Philips Business Sys., Inc. v. Executive Communications Sys., Inc., 744 F.2d 287, 290 (2d Cir.1984); Coyne-Delany Co. v. Capital Dev. Bd. of State of Ill, 717 F.2d 385, 393 (7th Cir.1983); Adolph Coors Co. v. A & S Wholesalers, Inc., 561 F.2d 807, 813 (10th Cir.1977); First-Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 484-85 (4th Cir.1970). This court has not yet been asked to pass upon it. However, the district court of Massachusetts has adopted it. See Northeast Airlines, Inc. v. World Airways, Inc., 262 F.Supp. 316, 319 (D.Mass.1966)."
},
{
"docid": "20359329",
"title": "",
"text": "all but exceptional cases the lack of an injunction bond means the unavailability of damages for wrongful injunction,” citing W.R. Grace & Co., 461 U.S. at 770 n. 14, 103 S.Ct. at 2185 n. 14, and finding no such exceptional case where the enjoined party “did not remind the district court of the need for a bond under Fed.R.Civ.P. 65(c), did not ask [the appellate court] to stay the injunction, and to this day has not attempted to quantify the damages from the delay [caused by the injunction]”). In Continuum Co., Inc., 873 F.2d at 803, the Fifth Circuit Court of Appeals suggested a corollary to this first reason, stating that the bond gives the plaintiff notice of the extent of its potential liability. This notice arises • since the amount of the bond “is the limit of the damages the defendant can obtain for a wrongful injunction, ... .provided the plaintiff was acting in good faith.” [Coyne-Delany, 717 F,2d at 393; Buddy Sys., Inc. v. Exer-Genie, Inc., 545 F.2d 1164, 1168 (9th Cir.1976), cert. denied, 431 U.S. 903, 97 S.Ct. 1694, 52 L.Ed.2d 387 (1977); 11 Wright & Miller § 2973, pp. 652-65; Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv.L.Rev. 828, 832-33 (1986).] The bond can thus be viewed as a contract in which the court and plaintiff “agree” to the bond amount as the “price” of a wrongful injunction. [Note, 99 Harv.L.Rev. at 833.] Continuum Co'., Inc., 873 F.2d at 803 (footnoted citations included). The second reason for the bond requirement is that, because a preliminary injunction proceeding is both expedited, resulting in only provisional findings of fact, and interlocutory, there is a higher chance that the district court will err in granting the preliminary injunction. Clark v. K-Mart, 979 F.2d 965, 968 (3d Cir.1992); Hoxworth, 903 F.2d at 210; Instant Air, 882 F.2d at 804. In this circuit, the rule as to whether a bond is mandatory or discretionary is somewhat uncertain. In Rathmann Group v. Tanenbaum, 889 F.2d 787 (8th Cir.1989), the appellate court determined that the district court abused its discretion"
},
{
"docid": "23339191",
"title": "",
"text": "\"The risk that the defendants will suffer any significant prejudice as a result of these interim payments is, for the reasons mentioned above, very slight or non-existent.” (SH Supp.App. 6). . Fed.R.Civ.P. 65(c) provides in relevant part as follows: (c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. . See Hoxwortk v. Blinder, Robinson & Co. Inc., 903 F.2d 186, 211 n. 32 (3d Cir.1990) (noting that if an exception to the bond requirement is drawn, it \"should be drawn narrowly”); Instant Air Freight v. C.F. Air Freight, 882 F.2d 797, 803 n. 8 (3d Cir.1989) (recognizing that \"[ojther courts of appeal have held that certain noncommercial and public interest cases may require dispensing with the bond”); System Operations v. Scientific Games Dev. Corp., 555 F.2d 1131, 1146 (3d Cir.1977) (adding that there was no need to \"decide whether a court may dispense with the posting of a bond in a case where the injunction raises no risk of monetary harm to the defendant”). Cf. Frank’s GMC Truck Center v. G.M.C., 847 F.2d 100, 103 (3d Cir.1988) (noting that “[wjhile there are exceptions, the instances in which a bond may not be required are so rare that the requirement is almost mandatory”). .See, e.g., Crowley v. Local No. 82, Furniture & Piano, 679 F.2d 978 (1st Cir.1982), rev’d on other grounds, 467 U.S. 526, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984) (upholding denial of bond where Union members would have had financial difficulty posting it, and where defendants faced low burden from absence of security); International Controls v. Vesco, 490 F.2d 1334, 1356 (2d Cir.1974), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974) (noting that \"the district court may dispense with security where there has been no proof of likelihood of harm to the party enjoined”) (citations omitted); Corrigan Dispatch Co."
},
{
"docid": "10352664",
"title": "",
"text": "with the court’s treatment of irreparable harm. While it finds that the sixteen employees will be irreparably harmed “in that job opportunities and wages will be lost,” it fails to explain why loss of job opportunities and wages constitute irreparable harm. In other words, the court neglected to address the critical issue of why the injuries complained of cannot be adequately redressed by an arbitrator’s award. Unless specifically addressed and resolved in favor of the complaining party, the entire premise for equitable relief in this context, carefully enunciated in Boys Markets and delimited in Buffalo Forge, is lacking. III. A related issue also raised by Consolidated here is the district court’s treatment of the injunction bond required by section 7. Section 7 provides, in part: No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney’s fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court. The Union correctly points out that the amount of an injunction bond is within the sound discretion of the district court. Roth v. Bank of the Commonwealth, 583 F.2d 527, 539 (6th Cir.1978) (applying Fed.R. Civ.P. 65(c)). The exercise of that discretion, however, is constrained by the statutory language which authorizes it. Section 7 clearly states that a primary concern of the district court in setting the amount of the bond should be the sufficiency of the amount to recompense the party enjoined for “any loss, expense, or damages caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney’s fee) and expense of defense against the order.” In its remarks accompanying the setting of the bond, however, the lower court expressly stated that"
},
{
"docid": "19844008",
"title": "",
"text": "case on any theory of antitrust violation. Commerce and Vantage can recover only to the extent permitted by the specific rules relating to injuries suffered as a result of the granting of an injunction. Remedy Regarding Injunction Rule 65(c) of the Federal Rules of Civil Procedure provides: “(c) Security. No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States or of an officer or agency thereof.” There has been some divergence of view as to the rights, if any, of a party to recover damages for injury resulting from a preliminary injunction later determined to have been erroneously issued. The resolution of the problem by the majority of the courts, both before and after the adoption of Rule 65(c) is as follows. In the absence of malicious prosecution, the seeking of injunctive relief is not a tort. However, a party obtaining a preliminary injunction may be required, as a condition of obtaining the injunction, to provide a bond or other undertaking to indemnify the defendant for injuries resulting from the injunction, if the injunction is later overturned. In such a case recovery by the injured party is limited to the amount of the bond or undertaking. Associated General Contractors v. Illinois Conference of Teamsters, 486 F.2d 972, 975 n. 6 (7th Cir. 1973); United Motors Service, Inc. v. Tropic-Aire, Inc., 57 F.2d 479, 483 (8th Cir. 1932); 7 J. Moore, Federal Practice ¶ 65.10[1], at 65-98 (2d ed. 1975); Note, Recovery of Damages on Injunction Bonds, 32 Colum.L.Rev. 869, 871 (1932). The Court of Appeals for the Second Circuit summarized the rule as follows (Judge Learned Hand, joined by Judges Augustus Hand and Chase): “Any one who acts honestly and does not subject himself to a charge of malicious prosecution is as free from liability in invoking the"
},
{
"docid": "22420134",
"title": "",
"text": "plaintiff must establish before a preliminary injunction will issue. Township of Montclair v. Hughey, 108 N.J. 587, 531 A.2d 1359 (1987); Crowe v. DeGioia, 90 N.J. 126, 447 A.2d 173, 176 (1982). The question for New Jersey courts would be the same as the question we are faced with since the New Jersey Supreme Court has held that \"[h]arm is generally considered irreparable in equity if it cannot be redressed adequately by monetary damages.” Id. When the breach of contract is governed by a specific New Jersey statute (such as a franchise or antitrust statute) the statute itself would determine the injunction standard. . In Systems Operations we did not consider whether a court may dispense with the posting of a bond in a case where the injunction raises no risk of monetary harm to the defendant. This factor is also not present in the case before us. Clearly C.F. may suffer monetary loss if forced to keep the terminal open. Other courts of appeal have held that certain non-commercial and public interest cases may require dispensing with the bond. See Crowley v. Local No. 82, 679 F.2d 978 (1st Cir.1982) rev’d on other grounds 467 U.S. 526, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984) (district court acted within its discretion in not requiring bond where plaintiffs were not able to afford security and a bond requirement would affect enforcement of Title I rights adversely); Wayne Chemical, Inc. v. Columbus Agency Service Corp., 567 F.2d 692 (7th Cir.1977) (in action to recover insurance benefits, district court properly excused bond upon plaintiffs’ showing of indigency where court determined that indigency was circumstance justifying excuse): see also O. Fiss and D. Rendle-man, Injunctions 388-89 (1984); Note, Recovery for Wrongful Interlocutory Injunctions Under Rule 65(c), 99 Harv.L.Rev. 828 (1986) (arguing that waiver of the bond requirement is appropriate only when the plaintiff is indigent or is suing in the public interest). . We have previously held, in a case specifically limited to labor disputes, that a plaintiffs liability \"shall be fixed ... without regard to any limitation in an injunction.” United States Steel"
},
{
"docid": "226231",
"title": "",
"text": "A lis pendens in favor of the seller was can-celled based upon the debtor’s making the $240,000 deposit into the court registry which is at issue here. Where a judicial step is taken by a party in exchange for the release of a judicial restraint against that party, the judicial step taken must be respected if the legal system is to function. Commitments of this type may be modified only for good cause shown; their existence and effect may be neither ignored nor denied. See generally W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983); Continuum Co. v. Incepts, 873 F.2d 801 (5th Cir.), adhered to & modified, 883 F.2d 333 (5th Cir.1989). A court order properly entered consistent with due process is entitled to full faith and credit. It can create legal relationships with at least as much authority as a contract, as indicated by Fed. R.Civ.P. Rule 70, contemplating issuances of titles and other self-executing documents. Indeed, court orders may bind third parties if they are not improperly prejudiced. United States v. IBT, 948 F.2d 98 (2d Cir.1992). Apart from these juridical doctrines, from a practical point of view there was in the state court action an agreement that the lis pendens would be lifted in return for a specific judicial step — the deposit of $240,000 in the court registry. Execution by the seller pursuant to the stipulation required that the funds deposited in the registry of the court be held as an escrow. See generally “Model Software Licensing Provisions,” Sec. of Patent, Trademark & Copyright Law, Annual Report at 335 § 17.4 (ABA 1990-91) (provisions for consent to future judicial action recommended). There is no claim here that the acts of the parties in establishing the depository arrangement amounting to an escrow were unauthorized, see Turner v. Burlington Northern R. Co., 771 F.2d 341, 345 (8th Cir.1985), or that overreaching was involved, see Gauthier v. Continental Diving Services, 831 F.2d 559 (5th Cir.1987). Nor is there any assertion that the terms"
}
]
|
851017 | extraction rule invoked section 15 generally as one source of authority. But as the Commission has subsequently made clear, it relied not on subsections 15(c)(5) or (6) but rather on subsection 15(d). See SEC Jurisdiction Br. 2. This explanation makes perfect sense. Subsections 15(c)(5) and (6) regulate brokers and dealers, 15 U.S.C. § 78o (c)(5)-(6), while subsection 15(d) requires issuers to file supplementary information, id. § 78o (d). The resource extraction rule involves the latter, not the former. Given this and given that subsection 15(d) appears nowhere in section 25(b), we lack original jurisdiction under section 25(b). Alternatively, petitioners contend that we have jurisdiction under section 25(a). In support, they rely on REDACTED in which we interpreted a jurisdictional statute’s use of the term “order” to mean “any agency action capable of review on the basis of the administrative record.” Id. at 1278; see also id. at 1277 (commenting that “ ‘[i]t is the availability of a record for review ... [that] is now the jurisdictional touchstone’ ” . (quoting Deutsche Lufthansa Aktiengesellschaft v. Civil Aeronautics Board, 479 F.2d 912, 916 (D.C.Cir.1973))). We explained that because the typical Administrative Procedure Act case can be resolved on the administrative record, “a factual hearing in the district court is unnecessary.” Id. at 1276. Indeed, “requiring petitioners, challenging regulations to go first to the district court results in unnecessary delay and expense.” Id. According to petitioners, the same | [
{
"docid": "5705102",
"title": "",
"text": "it had jurisdiction, under the same special review statute construed in United Gas Pipe Line, to review a regulation promulgated after formal evidentiary hearings before the Federal Power Commission. Id. at 321-322 & n. 45, 458 F.2d at 740-41 & n. 45. The court distinguished United Gas Pipe Line on the basis of the comprehensive evidentiary record presently before it, but questioned whether United Gas Pipe Line was still viable at all and noted that “there is a record available for review even when no evidentiary hearings have been held.” Id. at 322 n. 45, 458 F.2d at 741 n. 45 (emphasis in original), citing Automotive Parts & Accessories Ass’n, Inc. v. Boyd, 132 U.S.App.D.C. 200, 206, 407 F.2d 330, 336 (1968). Finally, in Mobil Oil Corp. v. FPC, 152 U.S.App.D.C. 119, 469 F.2d 130 (1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 159 (1973), and Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U.S.App.D.C. 191, 479 F.2d 912 (1973), this court found jurisdiction to review informal rulemaking under statutes providing for review of “orders” in the courts of appeals, and limited the United Gas Pipe Line result to situations in which review cannot take place on the basis of the administrative record. See 152 U.S.App.D.C. at 128-129, 469 F.2d at 139-40; 156 U.S.App.D.C. at 194—195, 479 F.2d at 915-16. As the court in Deutsche Lufthansa observed: It is the availability of a record for review and not the holding of a quasi judicial hearing which is now the jurisdictional touchstone. Id. at 195, 479 F.2d at 916. Our treatment of cases brought under section 9 of the Bank Holding Company Act has followed the standard established by Deutsche Lufthansa and Mobil Oil Corp. In National Association of Insurance Agents v. Board of Governors, 160 U.S.App.D.C. 144, 489 F.2d 1268 (1974), we found unripe for review a challenge to an interpretative ruling construing a Board regulation which identified certain activities as “closely related” to banking. The interpretative ruling had been promulgated without notice or hearing, more than a year after the underlying regulation had been issued. Since the Board"
}
]
| [
{
"docid": "20763526",
"title": "",
"text": "but rather on subsection 15(d). See SEC Jurisdiction Br. 2. This explanation makes perfect sense. Subsections 15(c)(5) and (6) regulate brokers and dealers, 15 U.S.C. § 78o (c)(5)-(6), while subsection 15(d) requires issuers to file supplementary information, id. § 78o (d). The resource extraction rule involves the latter, not the former. Given this and given that subsection 15(d) appears nowhere in section 25(b), we lack original jurisdiction under section 25(b). Alternatively, petitioners contend that we have jurisdiction under section 25(a). In support, they rely on Investment Company Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270 (D.C.Cir.1977), in which we interpreted a jurisdictional statute’s use of the term “order” to mean “any agency action capable of review on the basis of the administrative record.” Id. at 1278; see also id. at 1277 (commenting that “ ‘[i]t is the availability of a record for review ... [that] is now the jurisdictional touchstone’ ” . (quoting Deutsche Lufthansa Aktiengesellschaft v. Civil Aeronautics Board, 479 F.2d 912, 916 (D.C.Cir.1973))). We explained that because the typical Administrative Procedure Act case can be resolved on the administrative record, “a factual hearing in the district court is unnecessary.” Id. at 1276. Indeed, “requiring petitioners, challenging regulations to go first to the district court results in unnecessary delay and expense.” Id. According to petitioners, the same is true here. Pointing out that their challenge to the regulation can be resolved on “the basis of the administrative record,” id. at 1278, petitioners argue that we must interpret the word “order” in section 25(a) to mean “orders” and “rules.” We disagree. Investment Company Institute involved a very different jurisdictional statute than the one we confront here. There, the statute authorized initial appellate review only of agency “orders.” Here, by contrast, section 25(b) not only expressly authorizes appellate review of agency rules, but it limits that review to rules issued pursuant to specific provisions of the Exchange Act, leaving all others to be challenged in the district court. Indeed, as Oxfam points out, applying Investment Company Institute to section 25 would render section 25(b) superfluous since"
},
{
"docid": "20763524",
"title": "",
"text": "may, ordinarily, ‘draw in question the constitutionality’ of the statute under which the agency acted.” (quoting Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960))). Here, Exchange Act section 25 establishes the framework for initial appellate review of Commission actions. Section 25(a) provides that a “person aggrieved by a final order of the Commission entered pursuant to this chapter may obtain review of the order in the United States Court of Appeals ... for the District of Columbia Circuit.” 15 U.S.C. § 78y(a)(l) (emphasis added). Section 25(b) provides that a “person adversely affected by a rule of the Commission promulgated pursuant to [Exchange Act] section [6, 9(h)(2), 11, 11A, 15(c)(5) or (6), 15A, 17, 17A, or 19] may obtain review of this rule in the United States Court of Appeals ... for the District of Columbia Circuit.” ■ Id. § 78y(b)(l) (emphasis added). Thus, absent a grant of original appellate jurisdiction under section 25, a party must first proceed by filing suit in district court pursuant to 28 U.S.C. § 1331 and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. Looking only at section 25’s language, we think it apparent that this court lacks jurisdiction. Section 25(a) gives us jurisdiction over challenges to all final orders issued by the Commission under the Exchange Act whereas section 25(b) gives us jurisdiction only over challenges to rules promulgated pursuant to enumerated sections of the Act. Here, because petitioners challenge a rule, the operative provision is section 25(b). And because the Commission relied on none of the sections listed in section 25(b) when it published the resource extraction rule, see 77 Fed. Reg. at 56,417 (relying on Exchange Act sections 3(b), 12, 13,15, 23(a), and 36), that should end the matter. Petitioners argue that we nonetheless have jurisdiction under section 25(b) because it authorizes initial appellate review of rules promulgated under subsections 15(c)(5) and (6) and because the resource extraction rule invoked section 15 generally as one source of authority. But as the Commission has subsequently made clear, it relied not on subsections 15(c)(5) or (6)"
},
{
"docid": "8193467",
"title": "",
"text": "to the agency action(s) included therein.” Net-Coalition v. SEC, 715 F.3d 342, 348 (D.C.Cir.2013). Placing initial' review of agency actions in the courts of appeals often makes good sense. “[Ajgencies typically compile records,” rendering the district court’s “fact-finding capacity ... unnecessary.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). And because appeals are áll but guaranteed, requiring district court review may only add delay and expense. Those fac tors in mind, we interpret ambiguities in direct-review statutes in favor of appellate jurisdiction, “[ajbsent a firm indication that Congress intended to locate APA review of agency action in the district courts.” Id. at 745, 105 S.Ct. 1598. But this presumption, however helpful, cannot overcome the commands of Congress. Ultimately, “[wjhether initial subject-matter jurisdiction lies initially in the courts of appeals must óf course be governed by thé intent of Congress and not by-any views we may have about sound policy.” Id. at 746, 105 S.Ct. 1598. B By its own terms, the Credit Risk Retention Rule at issue implemented á section of \"the Exchange Act added by the Dodd-Frank Act. See 79 Fed. Reg. at 77602 (explaining that the agencies “are adopting a joint final rule' ... to implement the credit risk retention require-ments of section 15G of the Sécurities Exchange Act of 1934,” codified at 15 U.S.C. § 78o-11, “as added by section 941 of the Dodd-Frank” Act). The Exchange Act contains wh'at we have described as a “carefully constructed' jurisdictional scheme,” codified at 15 U.S.C. § 78y. Am. Petrol. Inst., 714 F.3d at 1334. We consider first the text and structure of that jurisdictional scheme. The Exchange Act treats challenges to orders and rules differently. Under section 78y(a), challenges to orders may be heard directly in the courts of appeals. 15 U.S.C. § 78y(a)(1). Not 'so for rules. Section 78y(b)(l) provides that challenges to “rule[sj of thé Commission promulgated pursuant to section 78f, 78i(h)(2), 78k, 78k-1, 78o(c)(5) or (6), 78o-3, 78q, 78q-1, or 78s of this title may” proceed directly to the relevant court of appeal. Id. § 78y(b)(1)."
},
{
"docid": "5527343",
"title": "",
"text": ". . . official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of any party interested.” Here the plaintiffs complain of informal actions of the Commission not entered of record, not served upon the parties, and taken wholly outside agency proceedings. Nothing in the language of the relevant statutes even remotely suggests that these activities are “final orders” of the Commission within the meaning of section 2342. Nor does the case law suggest a different result. The leading case is United Gas Pipe Line v. FPC, supra, 86 U.S.App.D.C. 314, 181 F.2d 796. There the court of appeals was asked to review an order of the Federal Power Commission. Recognizing the fact that 15 U.S.C. § 717r(b) granted a party aggrieved by an “order” of the Federal Power Commission the right to seek review in the court of appeals, and without denying the possibility that the petitioner was an aggrieved party, the court of appeals denied review. The court stated that review in the court of appeals presupposed the need for “a record fully encompassing the issues.” 181 F.2d at 799. In the absence of such a record, appellate courts were recognized to have “no intelligible basis for decision” and were without “authority to directly review the Commission’s action.” Id. And although the United requirement of an actual hearing has been questioned by many courts (see, e. g., Deutsche Lufthansa Aktiengesellschaft v. CAB, 156 U.S.App.D.C. 191, 479 F.2d 912, 915-16 (1973)), the requirement of the need of a record for review has survived. Indeed, “It is the availability of a record for review and not the holding of a quasi judicial hearing which is now the jurisdictional touchstone.” Id. at 916. Thus in cases where the record is unchallenged, where the issues are legal and not factual, and where notice has been provided to the parties the court of appeals has held that it has jurisdiction despite the absence of an administrative hearing. Id. at 915-16. Here, however, there is no “record”; there are material issues of fact; no notice"
},
{
"docid": "12063964",
"title": "",
"text": "the Federal Aviation Act and the Hazardous Materials Transportation Act. See 49 C.F.R. §§ 13.201(a)(2) (1989). .Nonetheless, civil penalty actions may still be brought in federal district court, see 49 U.S.C. app. §§ 1471, 1487 (1982), which retains exclu sive jurisdiction in civil penalty actions involving more than $50,000, see id. § 1475(c). . Air Transport petitioned directly to this court pursuant to 49 U.S.C. app. § 1486 (1982). See generally Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d 912, 915-16 (D.C.Cir.1973). . Consequently, we do not reach petitioner’s challenge to the substance of the Penalty Rules. We also express no opinion on whether that challenge presents issues ripe for review. . The FAA does not contend that the possible expiration of section 1475 affects the ripeness of the petition for review. No reason exists to believe that Congress will permit the FAA's civil penalty program to lapse; and, in any event, we cannot predicate our jurisdiction on speculations as to what actions Congress may or may not take. . Section 553 provides in relevant part: (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include— (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply— (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through"
},
{
"docid": "19801685",
"title": "",
"text": "that “Congress intended to locate initial APA review of agency action in the district courts” rather than the courts of appeals — “[alb-sent a firm indication that Congress [so] intended.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737, 745, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). In this case, the direct review provision of the applicable statute is not “ambiguous in any sense relevant,” and because it plainly does not apply to the agency action that NADA challenges, we lack appellate jurisdiction. Five Flags Pipe Line Co. v. DOT, 854 F.2d 1438, 1441 (D.C.Cir.1988); see Micei Int’l, 613 F.3d at 1154; Pub. Citizen v. NHTSA 489 F.3d at 1287-89; Hazardous Waste Treatment Council v. EPA, 910 F.2d 974, 976 (D.C.Cir.1990). NADA’s petition invokes section 18(e)(1)(A) of the Federal Trade Commission Act (FTCA), 15 U.S.C. § 57a(e)(1)(A), as the sole jurisdictional basis for our review. Pet. for Review at 1. Section 18(e)(1)(A) provides for direct appellate review of “rule[s] ... promulgated under subsection (a)(1)(B) of this section.” 15 U.S.C. § 57a(e)(1)(A). “A substantive amendment to ... a rule promulgated under subsection (a)(1)(B)” is also subject to direct review. Id. § 57a(d)(2)(B). Subsection (a)(1)(B), in turn, deals with a limited category of FTC rules, known as “trade regulation rules,” that “define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce (within the meaning of section 45(a)(1) of [the FTCA]).” Id. § 57a(a)(1)(B); see Am. Optometric Ass’n v. FTC, 626 F.2d 896, 899 (D.C.Cir.1980). Reading these FTCA provisions together, we have held that “direct review in the courts of appeals [under FTCA § 18(d) or (e) ] is only available for challenges to trade regulation rules or substantive amendments of such rules. Parties seeking review of other FTC actions must proceed ... in district court in the first instance.” Funeral Consumer Alliance, Inc. v. FTC, 481 F.3d 860, 862-63 (D.C.Cir.2007) (internal quotation marks omitted); see Pub. Citizen v. FTC, 829 F.2d 149, 150 (D.C.Cir.1987) (per curiam). The interpretation that NADA challenges in this case is not a trade regulation rule as defined"
},
{
"docid": "13695155",
"title": "",
"text": "Amusement & Music Operators Ass’n v. Copyright Royalty Tribunal, 636 F.2d 531, 533-34 (D.C.Cir. 1980) (“[A]gency action is aptly examined in the District Court when the court proceeding is to be de novo and based on a new record compiled in the court itself. Where review is to be on the agency record, the Court of Appeals is well suited to consider the challenge in the first instance.”) (emphasis in original) (footnote omitted), cert. denied, 450 U.S. 912, 101 S.Ct. 1352, 67 L.Ed.2d 336 (1981); Investment Co. Inst. v. Board of Governors of Fed. Reserve Sys., 551 F.2d 1270, 1278 (D.C. Cir.1977) (order reviewable in court of appeals “is interpreted to mean any agency action capable of review on the basis of the administrative record”); Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d 912, 916 (D.C.Cir. 1973) (“It is the availability of a record for review ... which is now the jurisdictional touchstone.”); Independent Broker-Dealers’ Trade Ass’n v. SEC, 442 F.2d 132, 143 (D.C. Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57 (1971). . For more on the Commission’s rulemaking record, see infra notes 194-202 and accompanying text. . As discussed infra Part V-B, we cannot affirm the Commission’s order denying ITT’s rulemaking petition on the basis of the record before us. There is some tension between our remand of that order for further consideration and our remand of the ultra vires count for district court factfinding; the practical effect of our decision is that both the district court and the Commission will consider the nature of the Committee’s off-the-record activities. We discuss coordination of this “double remand” infra p. 1248. . FCC Brief at 24 (emphasis added). . See, e.g., Association of Nat’l Advertisers, Inc. v. FTC, 617 F.2d 611, 619-22 (D.C.Cir. 1979); id. at 626 (Wright, C.J., concurring in the result); see also 5 U.S.C. § 704 (1976). This preference for statutory remedies reflects important policies, including deference to administrative expertise, respect for administrative autonomy, and avoidance of piecemeal review. See, e.g., City of Rochester v. Bond, supra note 50, 603 F.2d at 936; Nader"
},
{
"docid": "8193469",
"title": "",
"text": "ChaEenges to rules implementing other sections must begin in district court. See Am. Petrol. Inst., 714 F.3d at 1332-33. While section 78y(b)(l) speaks of “rule[sj of the Commission,” Congress recognized that other ágéncies may be charged with rulemaking authority undér the Exchange Act. Section 78y(d) provides that “the term ‘Commission’ ” in the direct review statute “includes the agencies enumerated in section 78c(a)(34) of this title insofar as such agencies are acting pursuant to this chapter.” 15 U.S.C. § 78y(d)(1), The Board, FDIC, and OCC are among the agencies enumerated in section 78c(a)(34). See id. § 78c(a)(34)(A). Of those, only the- Board -is party to this case. We therefore read subsection (b)(l)’s reference to “rule[sj of the Commission” to include the Board, insofar as the Board exercised authority granted -by the Exchange Act. See id. § -78y(b)(1). Because LSTA challenges a rule, the “operativé provision”' is 78y(b)(1). See Am. Petrol. Inst., 714 F.3d at 1333, Under that section, only rules implementing certain sections of the Exchangé Act may proceed directly to the courts of appeals. Here, the agencies implemented section 78o-11 of the.Exchange Act. See 79 Fed. Reg. at 77602. Section 78o-11 is not listed in section 78y(b)(1), and we treat the Board as the Commission under subsection (d). Arguably, the district court — not this court — has jurisdiction to hear this challenge. See 28 U.S.C. § 1331. A review of legislative history supports that conclusion. . “As originally enacted in 1934, the Exchange Act contained only section [78y](a)’s grant of original 'appellate jurisdiction to review Commission final orders.” Am. Petrol. Inst., 714 F.3d at 1334. “[Tjhe omission of rules or regulations ... was no mere oversight on the part of Congress.” PBW Stock Exch., Inc. v. SEC, 485 F.2d 718, 723 (3d Cir.1973). It instead reflected “a clear and unequivocal intention to insulate Commission rules or regulations from review.” Id. at 726. In 1975, Congress changed course, amending the Exchange Act to provide for direct review of rules — but hot all rules. In what is now codified at 78y(b)(1), Congress “established] a statutory review ¡procedure for certain"
},
{
"docid": "3747556",
"title": "",
"text": "he “voluntarily provided false answers on his Form U4.” In determining the meaning of the word “willfully” in § 3(a)(39), we look to the use of the same term in what Mathis acknowledges is an analogous provision, § 15(b)(4)(A) of the Exchange Act. Section 15 is entitled “Registration and Regulation of Brokers and Dealers.” Section 15(b)(4)(A) authorizes the SEC to sanction brokers who “willfully” make a false statement on an application for registration required to be filed with the SEC. See 15 U.S.C. § 78o(b)(4)(A). Specifically, § 15(b)(4)(A) permits the SEC to “censure, place limitations on the activities, functions, or operations of, suspend for a period not exceeding twelve months, or revoke the registration of any broker or dealer if it finds” that such broker or dealer has willfully made or caused to be made in any application for registration ... required to be filed with the Commission or with any other appropriate regulatory agency under this chapter, ... any statement which was at the time and in light of the circumstances under which it was made false or misleading with respect to any material fact, or has omitted to state in any such application ... any material fact which is required to be stated therein. Id. Section 15(b)(4)(A) finds a statutory counterpart in § 3(a)(39)(F) of the same Act, which applies to applications and registrations filed with non-government self-regulatory organizations, such as FINRA, rather than the SEC or defined governmental regulators. Like § 15(b)(4)(A), § 3(a)(39)(F) subjects brokers to disqualification from the securities industry for willfully making false or misleading statements on registration forms and applications. Both provisions promote accurate disclosure by securities professionals in order to maintain a high level of business ethics in the securities industry. In Tager v. SEC, 344 F.2d 5, 8 (2d Cir.1965), we analyzed another subsection of Section 15, § 15(b)(4)(D) of the Exchange Act, 15 U.S.C. § 780(b)(4)(D), which permits the SEC to sanction a broker or dealer who has “willfully violated any provisions of the Securities Act of 1933.” The SEC had determined that Tager willfully violated certain anti-fraud and anti-manipulation"
},
{
"docid": "8193472",
"title": "",
"text": "challenges to section [78o-11] regulations to be brought first-in the district court.” Am. Petrol. Inst., 714 F.3d at 1335. In light of the clarity of the Exchange Act’s direct-review provision, the presumption in favor of appellate review does not apply. See id. at 1336 (failing to identify any ambiguity in the Exchange Act’s direct-review provision). Mindful that .our “jurisdiction under a direct review statute is strictly limited to the agency action(s) included therein,” we conclude that jurisdiction lies in the district court. See NetCoalition, 715 F.3d at 348. C In hopes of slipping that conclusion, the parties claim we have jurisdiction based on the agencies’ invocation of other statutes, some of which contain direct-review provisions, in the “authority, purpose and scope” provisions of the' challenged rule. See 79 Fed. Reg. at 77764-66. We disagree. In keeping with Congress’s requirement to “jointly” promulgate the rule, 15 U.S.C. § 78o-11(b)(i), the agencies developed a single, common rule. Each agency published identical versions of the rule in its respective section of the Code of Federal Regulations. As the parties point out, each of those separate codifications included short appendices that invoked a number of statutes , as authority in addition to section 78o-11. See 79 Fed. Reg. at 77764-66. Scattershot in nature, these sections listed other statutes without explaining their relevance. The Commission’s separate eodificatioh, for instance, purported to rely on two other statutes, citing ten specific sections. Id, at 77766. Not to be outdone, the Board invoked five other statutes as sources of-authority. See id. at 77764. , Based on these separate invocations, the parties suggest we have jurisdiction under any of three statutes that provide for direct review: (1) the Securities Act of 1933 (Securities Act), 15 U.S.C. § 77 et seq.; (2) the Exchange Act (based on sections 78o (c)(5) and (6)); (3) and the Bank Holding Company Act of 1956 (BHCA), 12 U.S.C. § 1841 et seq. We take each. in turn. The Securities Act authorizes direct review of Commission “order[s]” made under that Act. 15 U.S.C. § 77i(a). In addition to the Dodd-Frank Act, the Commission invoked sections"
},
{
"docid": "20763525",
"title": "",
"text": "1331 and the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. Looking only at section 25’s language, we think it apparent that this court lacks jurisdiction. Section 25(a) gives us jurisdiction over challenges to all final orders issued by the Commission under the Exchange Act whereas section 25(b) gives us jurisdiction only over challenges to rules promulgated pursuant to enumerated sections of the Act. Here, because petitioners challenge a rule, the operative provision is section 25(b). And because the Commission relied on none of the sections listed in section 25(b) when it published the resource extraction rule, see 77 Fed. Reg. at 56,417 (relying on Exchange Act sections 3(b), 12, 13,15, 23(a), and 36), that should end the matter. Petitioners argue that we nonetheless have jurisdiction under section 25(b) because it authorizes initial appellate review of rules promulgated under subsections 15(c)(5) and (6) and because the resource extraction rule invoked section 15 generally as one source of authority. But as the Commission has subsequently made clear, it relied not on subsections 15(c)(5) or (6) but rather on subsection 15(d). See SEC Jurisdiction Br. 2. This explanation makes perfect sense. Subsections 15(c)(5) and (6) regulate brokers and dealers, 15 U.S.C. § 78o (c)(5)-(6), while subsection 15(d) requires issuers to file supplementary information, id. § 78o (d). The resource extraction rule involves the latter, not the former. Given this and given that subsection 15(d) appears nowhere in section 25(b), we lack original jurisdiction under section 25(b). Alternatively, petitioners contend that we have jurisdiction under section 25(a). In support, they rely on Investment Company Institute v. Board of Governors of the Federal Reserve System, 551 F.2d 1270 (D.C.Cir.1977), in which we interpreted a jurisdictional statute’s use of the term “order” to mean “any agency action capable of review on the basis of the administrative record.” Id. at 1278; see also id. at 1277 (commenting that “ ‘[i]t is the availability of a record for review ... [that] is now the jurisdictional touchstone’ ” . (quoting Deutsche Lufthansa Aktiengesellschaft v. Civil Aeronautics Board, 479 F.2d 912, 916 (D.C.Cir.1973))). We explained that because the"
},
{
"docid": "3747552",
"title": "",
"text": "have, resulted in expulsion or suspension from a self-regulatory organization.”); Exchange Act § 15A(g)(2), 15 U.S.C. § 78o-3(g)(2) (“A registered securities association may, and in cases in which the Commission, by order, directs as necessary or appropriate in the public interest or for the protection of investors shall, deny membership to any registered broker or dealer, and bar from becoming associated with a member any person, who is subject to a statutory disqualification.”). Mathis timely filed this petition to review and vacate the SEC’s order, insofar as it determined that he was subject to statutory disqualification. DISCUSSION 1. Jurisdiction and Standard of Review FINRA regulates member brokerage firms and exchange markets, subject to oversight by the SEC. Exchange Act §§ 15A, 15A(b)(6), 15 U.S.C. §§ 78o-3, 78o-3(b)(6). The Exchange Act requires FINRA to promulgate rules “to prevent fraudulent and manipulative acts and practices” and to discipline its members when they violate those rules. Exchange Act § 15A(b)(6), 15 U.S.C. § 78o-3(b)(6). On the petition of a disciplined party, any disciplinary action taken by FINRA is reviewed by the SEC, which conducts a de novo review of the record and make its own findings as to whether the alleged conduct violated FINRA rules. See Exchange Act §§ 19(d)(2), 19(e)(1), 15 U.S.C. §§ 78s(d)(2), (e)(1); PAZ Sec., Inc. v. SEC, 494 F.3d 1059, 1064-65 (D.C.Cir.2007). The SEC’s order is subject to review by this Court. See, e.g., Heath v. SEC, 586 F.3d 122, 131 (2d Cir.2009). “[W]e will affirm the SEC’s findings of fact if supported by substantial evidence.” VanCook v. SEC, 653 F.3d 130, 137 (2d Cir.2011); see MFS Sec. Corp. v. SEC, 380 F.3d 611, 617 (2d Cir.2004); 15 U.S.C. §§ 78y(a)(4), 80a-42(a), and 80b-13(a); 15 U.S.C. § 77i (“The finding of the Commission as to the facts, if supported by evidence, shall be conclusive.”). Under the Administrative Procedure Act, we will set aside the SEC’s actions, findings, or conclusions of law only if they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see D’Alessio v. SEC, 380 F.3d 112,"
},
{
"docid": "13695154",
"title": "",
"text": "Denial, supra note 7, 77 F.C. C.2d at 887. . Id . Id at 888. . Id . Complaint, ITT World Communications, Inc. v. FCC, Civ. No. 80-0428 (D.D.C.) (filed Feb. 12, 1980) [hereinafter cited without cross-reference as “Complaint”], reprinted in JA at 196-208. . Id. ¶ 22, reprinted in JA at 204. . District Court Opinion at 4, reprinted in JA at 151. . FCC District Court Memorandum at 3, reprinted in JA at 493; see also DOJ Brief at 14-15. . See, e.g., Whitney Nat’l Bank v. Bank of New Orleans & Trust Co., 379 U.S. 411, 422, 85 S.Ct. 551, 558, 13 L.Ed.2d 386 (1965); City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir. 1979); Independent Cosmetic Mfrs. & Distributors, Inc. v. United States Dep’t of HEW, 574 F.2d 553, 555 & n. 2 (D.C.Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 250, 58 L.Ed.2d 238 (1978); Nader v. Volpe, 466 F.2d 261, 266-68 (D.C.Cir. 1972). See also 5 U.S.C. § 703 (1976). . DOJ Brief at 15. . See, e.g., Amusement & Music Operators Ass’n v. Copyright Royalty Tribunal, 636 F.2d 531, 533-34 (D.C.Cir. 1980) (“[A]gency action is aptly examined in the District Court when the court proceeding is to be de novo and based on a new record compiled in the court itself. Where review is to be on the agency record, the Court of Appeals is well suited to consider the challenge in the first instance.”) (emphasis in original) (footnote omitted), cert. denied, 450 U.S. 912, 101 S.Ct. 1352, 67 L.Ed.2d 336 (1981); Investment Co. Inst. v. Board of Governors of Fed. Reserve Sys., 551 F.2d 1270, 1278 (D.C. Cir.1977) (order reviewable in court of appeals “is interpreted to mean any agency action capable of review on the basis of the administrative record”); Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d 912, 916 (D.C.Cir. 1973) (“It is the availability of a record for review ... which is now the jurisdictional touchstone.”); Independent Broker-Dealers’ Trade Ass’n v. SEC, 442 F.2d 132, 143 (D.C. Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57"
},
{
"docid": "8193474",
"title": "",
"text": "7,10,19(a) and 28 of the Securities Act. The parties focus on section 7, codified at 15 U.S.C. § 77g(c), which authorizes the agency to require the disclosure of information. They suggest that section justifies elements of the joint rule requiring the disclosure of information concerning asset-backed securities. See, e.g., 79 Fed. Reg. at 77742 (directing sponsors of asset-backed securities to provide certain disclosures). Moving to the Exchange Act, we have established that the Act’s direct-review provision allows limited review of rules. The Commission’s separate codification invoked section 78o of the Exchange Act as an additional source of authority. Within section 78o, only subsections 78o(c)(5) and (6) receive direct review. See 15 U.S.C. § 78y(b)(1). Those particular subsections — neither of which the Commission specifically invoked — give the Commission certain powers to regulate broker-dealers. Seizing on the fact that the joint rule potentially reaches broker-dealers who sponsor asset-backed securities transactions, the petitioner suggests that these jurisdictional provisions are in play. See 79 Fed. Reg. at 77611; see Pet. Resp. to Order to Show Cause 12. The parties hang most of their hopes, however, on the BHCA. That statute “vests broad regulatory authority in the Board over bank holding companies to ... prevent possible abuses related to the control of commercial credit.” Bd. of Governors of Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 365, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986).(omitting internal quotation and citation). Orders and rules made pursuant to the BHCA may be challenged directly in the courts of appeals. See 12 U.S.C. § 1848; see also Inv. Co. Inst. v. Bd. of Governors of Fed. Reserve Sys., 551 F.2d 1270, 1278 (D.C.Cir.1977) (interpreting the term “order” in 12 U.S.C. § 1848 to include rules). The parties pin jurisdiction on the assumption that the Board could have imposed on bank holding companies risk retention obligations similar to those in the joint rule. None of these statutes changes our conclusion that jurisdiction rests with the district court. The joint nature of the'rule-making makes this case unique. Our -past cases tended to involve relatively simple rules issued by"
},
{
"docid": "20763529",
"title": "",
"text": "fact-finding by the district court.” Petitioners’ Br. 29 n.4. In other words, when Overton Park applies, the underlying premise of Investment Company Institute no longer controls and a Commission “rule” is no longer an “order” under section 25(a). Thus, petitioners conclude, when a party alleges bad faith or claims that an administrative record is insufficient to facilitate judicial review, original jurisdiction lies in the district court except for challenges to rules promulgated pursuant to the provisions specifically enumerated in section 25(b). Again, we disagree. As an initial matter, reliance on extra-record evidence “is the exception, not the rule.” Theodore Roosevelt Conservation Partnership, 616 F.3d at 514. More importantly, petitioners have pointed to no evidence that Congress intended section 25(b) to serve this function. Petitioners’ interpretation of section 25(a) would also eviscerate Congress’s carefully constructed jurisdictional scheme—a scheme that becomes even more apparent when one delves into the history of section 25. As originally enacted in 1934, the Exchange Act contained only section 25(a)’s grant of original appellate jurisdiction to review Commission final orders. See Securities Exchange Act of 1934, Pub. L. No. 73-291, § 25, 48 Stat. 881, 901-02. Congress, as the Third Circuit explained, “intended to insulate rules and regulations of the Commission” from judicial review. PBW Stock Exchange, Inc. v. SEC, 485 F.2d 718, 725 (3d Cir.1973). At that time, Congress had yet to enact either the Administrative Procedure Act or the Declaratory Judgment Act, meaning that judicial review of agency action was generally limited to final orders. See id. at 722-26 (discussing the Exchange Act’s legislative history and the state of the law in the 1930s). Given this statutory framework, courts of appeals relied on section 25(a) to dismiss petitions for review of Commission rules. See id. at 733; NRDC v. SEC, No. 73-1591, 1974 WL 3909 (D.C.Cir. June 17, 1974) (per curiam) (relying on PBW Stock Exchange in dismissing petition for review for lack of jurisdiction). Indeed, this approach followed our existing case law, which interpreted the term “order” in jurisdictional statutes to exclude initial appellate review of agency rules. See, e.g., United Gas Pipe Line"
},
{
"docid": "12826173",
"title": "",
"text": "availability of direct appellate review in this court under § 25(a) to reflect adversely on the availability of other forms of judicial review, including preenforcement relief under the Declaratory Judgment Act and § 10 of the APA. The motion of the Securities and Exchange Commission to dismiss these petitions for lack of jurisdiction will be granted. . 17 C.F.R. § 240.19b-2 (1973). . Hereinafter cited as Exchange Act. . We note that petitioners, in their brief opposing the SEC’s motion to dismiss, attempt to equate the question of whether they can obtain judicial review of this rule with the question of whether jurisdiction lies in this court to review this rule under § 25(a). We reject this attempt to unnecessarily obfuscate the issue of the availability of direct appellate review of Commission rules and regulations. We emphasize that in this opinion we are dealing only with this latter question. The availability of other types of review, particularly in the district court, is governed by § 30 of the APA and provisions of Title 28. See Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1067); Leedom v. Kyne, 358 U. S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). We wish nothing stated in this opinion as to the availability of relief in this court under § 25(a) to reflect negatively on the question of whether judicial review is otherwise available in another forum. . Cf. Schwab v. Quesada, 284 F.2d 140 (3d Cir. 1960). . 15 U.S.C. § 77a et seq. (1971). . The other five subsections are: 15 U.S.C. §§ 78d-1; 781(g) (3) & (h) ; 78m(d) (5) ; 78o(a)(2) (1971). Parenthetically, it should be noted that the remaining sections under which the Commission purported to act do not give it the power to proceed otherwise than by rule or regulation, . See, e. g., comment of Rep. Rayburn, 78 Cong.Rec. 8091, and amplification at 8093. Cf. Leedom v. Kyne, supra. . It must be remembered that the standards for judicial review of agency action were not definitively established until 1951 in Universal Camera"
},
{
"docid": "8193473",
"title": "",
"text": "parties point out, each of those separate codifications included short appendices that invoked a number of statutes , as authority in addition to section 78o-11. See 79 Fed. Reg. at 77764-66. Scattershot in nature, these sections listed other statutes without explaining their relevance. The Commission’s separate eodificatioh, for instance, purported to rely on two other statutes, citing ten specific sections. Id, at 77766. Not to be outdone, the Board invoked five other statutes as sources of-authority. See id. at 77764. , Based on these separate invocations, the parties suggest we have jurisdiction under any of three statutes that provide for direct review: (1) the Securities Act of 1933 (Securities Act), 15 U.S.C. § 77 et seq.; (2) the Exchange Act (based on sections 78o (c)(5) and (6)); (3) and the Bank Holding Company Act of 1956 (BHCA), 12 U.S.C. § 1841 et seq. We take each. in turn. The Securities Act authorizes direct review of Commission “order[s]” made under that Act. 15 U.S.C. § 77i(a). In addition to the Dodd-Frank Act, the Commission invoked sections 7,10,19(a) and 28 of the Securities Act. The parties focus on section 7, codified at 15 U.S.C. § 77g(c), which authorizes the agency to require the disclosure of information. They suggest that section justifies elements of the joint rule requiring the disclosure of information concerning asset-backed securities. See, e.g., 79 Fed. Reg. at 77742 (directing sponsors of asset-backed securities to provide certain disclosures). Moving to the Exchange Act, we have established that the Act’s direct-review provision allows limited review of rules. The Commission’s separate codification invoked section 78o of the Exchange Act as an additional source of authority. Within section 78o, only subsections 78o(c)(5) and (6) receive direct review. See 15 U.S.C. § 78y(b)(1). Those particular subsections — neither of which the Commission specifically invoked — give the Commission certain powers to regulate broker-dealers. Seizing on the fact that the joint rule potentially reaches broker-dealers who sponsor asset-backed securities transactions, the petitioner suggests that these jurisdictional provisions are in play. See 79 Fed. Reg. at 77611; see Pet. Resp. to Order to Show Cause 12."
},
{
"docid": "20763527",
"title": "",
"text": "typical Administrative Procedure Act case can be resolved on the administrative record, “a factual hearing in the district court is unnecessary.” Id. at 1276. Indeed, “requiring petitioners, challenging regulations to go first to the district court results in unnecessary delay and expense.” Id. According to petitioners, the same is true here. Pointing out that their challenge to the regulation can be resolved on “the basis of the administrative record,” id. at 1278, petitioners argue that we must interpret the word “order” in section 25(a) to mean “orders” and “rules.” We disagree. Investment Company Institute involved a very different jurisdictional statute than the one we confront here. There, the statute authorized initial appellate review only of agency “orders.” Here, by contrast, section 25(b) not only expressly authorizes appellate review of agency rules, but it limits that review to rules issued pursuant to specific provisions of the Exchange Act, leaving all others to be challenged in the district court. Indeed, as Oxfam points out, applying Investment Company Institute to section 25 would render section 25(b) superfluous since all Commission rules would be renewable in this court under section 25(a). This would run counter to the “basic interpretive canon[.]” that “a statute should be construed so that effect is given to all its provisions.” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (internal quotation marks and alteration omitted). Petitioners insist that applying Investment Company Institute would not render section 25(b) superfluous because, they say, it would retain independent vitality under a narrow set of circumstances. Citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), which holds that courts may go beyond the administrative record “when there has been a strong showing of bad faith or improper behavior or when the record is so bare that it prevents effective judicial review,” Theodore Roosevelt Conservation Partnership v. Salazar, 616 F.3d 497, 514 (D.C.Cir.2010) (internal quotation marks omitted), petitioners argue in a footnote that “the Investment Company Institute definition of ‘orders’ would not apply where a rule-making challenge required"
},
{
"docid": "689598",
"title": "",
"text": "as follows: (A) That no contract shall be void by reason of this subsection because of any violation or rule or regulation prescribed pursuant to paragraph (2) or (3) of subsection (c) of section 78o of this title, and (B) that no contract shall be deemed to be void by reason of this subsection in any action maintained in reliance upon this subsection, by any person to or for whom any broker or dealer sells, or from or for whom any broker or dealer purchases, a security in violation of any rule or regulation prescribed pursuant to paragraph (1) of subsection (c) of section 78o of this title, unless such action is brought within one year after the discovery of such sale or purchase involves such violation and within three years after such violation. 15 U.S.C. § 78cc(b). . Nor does defendants’ reliance on the Viable Remedy article. The authors there state: Second, a threshold question in analyzing section 29(b) is whether the remedy provided by the section is available only when there has been a violation of another section of the Exchange Act or any of the rules or regulations promulgated thereunder. The language seems to confirm this view, because it implies that section 29(b) may be involved only when there is a contract that is formed or performed in violation of another provision of the Exchange Act. The courts interpreting the section have unanimously reached this conclusion. 48 Geo.Wash.L.Rev. at 4-5 (footnotes omitted). The court agrees that section 29(b) may only be invoked when a contract is formed or performed in violation of another provision of the 1934 Act — that is clearly required by the language of section 29(b). But neither this passage, nor the court, concludes that the violation must be of a provision creating a private remedy. . In Rekant v. Desser, 425 F.2d 872 (5th Cir.1970), the court found it unnecessary to decide whether section 15(d) of the 1934 Act contains a private remedy. . Because plaintiffs’ rescission claim goes only to the legality of the entire customer agreements, and not the arbitration clauses"
},
{
"docid": "8193468",
"title": "",
"text": "at issue implemented á section of \"the Exchange Act added by the Dodd-Frank Act. See 79 Fed. Reg. at 77602 (explaining that the agencies “are adopting a joint final rule' ... to implement the credit risk retention require-ments of section 15G of the Sécurities Exchange Act of 1934,” codified at 15 U.S.C. § 78o-11, “as added by section 941 of the Dodd-Frank” Act). The Exchange Act contains wh'at we have described as a “carefully constructed' jurisdictional scheme,” codified at 15 U.S.C. § 78y. Am. Petrol. Inst., 714 F.3d at 1334. We consider first the text and structure of that jurisdictional scheme. The Exchange Act treats challenges to orders and rules differently. Under section 78y(a), challenges to orders may be heard directly in the courts of appeals. 15 U.S.C. § 78y(a)(1). Not 'so for rules. Section 78y(b)(l) provides that challenges to “rule[sj of thé Commission promulgated pursuant to section 78f, 78i(h)(2), 78k, 78k-1, 78o(c)(5) or (6), 78o-3, 78q, 78q-1, or 78s of this title may” proceed directly to the relevant court of appeal. Id. § 78y(b)(1). ChaEenges to rules implementing other sections must begin in district court. See Am. Petrol. Inst., 714 F.3d at 1332-33. While section 78y(b)(l) speaks of “rule[sj of the Commission,” Congress recognized that other ágéncies may be charged with rulemaking authority undér the Exchange Act. Section 78y(d) provides that “the term ‘Commission’ ” in the direct review statute “includes the agencies enumerated in section 78c(a)(34) of this title insofar as such agencies are acting pursuant to this chapter.” 15 U.S.C. § 78y(d)(1), The Board, FDIC, and OCC are among the agencies enumerated in section 78c(a)(34). See id. § 78c(a)(34)(A). Of those, only the- Board -is party to this case. We therefore read subsection (b)(l)’s reference to “rule[sj of the Commission” to include the Board, insofar as the Board exercised authority granted -by the Exchange Act. See id. § -78y(b)(1). Because LSTA challenges a rule, the “operativé provision”' is 78y(b)(1). See Am. Petrol. Inst., 714 F.3d at 1333, Under that section, only rules implementing certain sections of the Exchangé Act may proceed directly to the courts of appeals."
}
]
|
463454 | on federal or state rights that could not have been asserted before the agency. Because the principles of claim preclusion do not require plaintiffs to make this kind of choice, she may therefore proceed in the forum of limited and exclusive jurisdiction without losing the opportunity to later litigate the claims not within that forum’s jurisdictional competency. Id. at 865, citing Restatement (Second) of Judgments § 26. Waid, which involved the same administrative scheme before us now, held that because the jurisdiction of the Equal Rights Division is limited, its decision did not preclude a plaintiff from bringing a separate action in federal court to assert federal claims arising from the same factual situation. Id. at 865-66. See also REDACTED We find Waid indistinguishable from the present case. The Equal Rights Division’s jurisdiction is limited; it can hear claims brought under WFEA but not the federal anti-discrimination statutes. Even though in a free-standing case the Wisconsin state courts could have heard Staats’s federal law claims, see Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 821, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), the Equal Rights Division could not: it lacked jurisdiction to do so. See Waid, 91 F.3d at 865. Thus, it was impossible for Staats to raise his federal claims in addition to his WFEA claims | [
{
"docid": "13057504",
"title": "",
"text": "against whom the prior judgment is asserted did not have a fair opportunity to litigate the issue or because the basis of the prior court judgment is not clear and convincing. We therefore believe that the Illinois courts would not find the present action (or an analogous one based on 112-102 of the Illinois Human Rights Act, Ill.Rev.Stat. ch. 68, II1-101 et seq. (1983)) to be barred by either claim or issue preclusion doctrine. Appellees argue that this result is foreclosed by Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), and by our recent decision in Unger v. Consolidated Foods Corp., 693 F.2d 703 (7th Cir.1982), cert. denied, 460 U.S. 1102, 103 S.Ct. 1801, 76 L.Ed.2d 366 and — U.S. -, 104 S.Ct. 549, 78 L.Ed.2d 723 (1983), both cases in which a state court judgment on review of an agency determination was held to preclude a federal civil rights suit. Neither Kremer nor Unger stands for the proposition that any state court decision reviewing an administrative action necessarily bars federal suit. In both Kremer and Unger the plaintiff (unlike Mr. Jones here) was proceeding on administrative review of a decision rendered by a local human rights agency which was charged with responsibility for the very subject matter the plaintiff wanted to raise in federal court, employment discrimination. Plaintiffs Kremer and Unger thus obtained agency determination of the issue of discrimination and the state court on administrative review addressed the adequacy of the agency’s determination. Here, in contrast, Mr. Jones tried to raise the issue of employment discrimination but was prevented from doing so. Further, in both Kremer and Unger, the state court judgment would have been preclusive under state law if the plaintiff had tried to bring his or her federal claim in state court. Kremer, 456 U.S. at 467, 102 S.Ct. at 1890; Unger, 693 F.2d at 706. Here, however, the state court judgment is not preclusive under state law. Wakeen v. Hoffman House, Inc., 724 F.2d 1238 (7th Cir.1984), may be distinguished on the same grounds. Somewhat surprisingly, neither party"
}
]
| [
{
"docid": "11584741",
"title": "",
"text": "discrimination should preclude relitigation of that issue. MAPS had the opportunity to seek judicial review of the agency’s decision, but it declined to do so. In the administrative process, Waid and MAPS both had access to virtually all of the procedural instruments employed for factfinding in courts. Each party was represented by counsel. Before the hearing, they had the opportunity to conduct discovery and subpoena witnesses. During the hearing, they could present exhibits and testimony, and they could cross- examine opposing witnesses, all on the record. Wis.Stats. §§ 111.39(2), 111.39(4)(b). The elements of discrimination and the standard for proving it were essentially the same in the Equal Rights Division as they would be in the district court. See Wis.Stats. §§ 111.322(1), 111.36(1)(a). Finally, the policies underlying the creation and enforcement of Waid’s state law rights are substantially similar to the policies underlying her rights under Title IX. See Wis.Stats. § 111.31. Hence, we conclude that the agency conducted its factfinding about discrimination in roughly the same legal context as the district court would. Given all of these considerations, it would not be unfair to hold MAPS to the factfinding conducted by the Equal Rights Division. We hasten to point out that Waid has not won her Title IX claim simply by prevailing on the question of issue preclusion. To prove her claim in the district court, Waid must show that MAPS intentionally discriminated against her. The decision of the Equal Rights Division precludes relitigation of the question whether MAPS discriminated, but Waid still must prove that MAPS intended to do so. III. With respect to Waid’s claims against Wedul and Boettcher, the judgment of the district court is Affirmed. With respect to Waid’s claim under Title IX, the summary judgment for MAPS is Reversed and the denial of Waid’s partial motion for summary judgment is Reversed. This case is Remanded to the district court for further proceedings not inconsistent with this opinion. . Even when Congress has enacted statutes clearly defining rules of preclusion for the federal courts, the courts may, nevertheless, sometimes find exceptions to those rules. The courts"
},
{
"docid": "11584717",
"title": "",
"text": "things, prohibits schools that receive federal funds from engaging in intentional discrimination in employment. She also brought claims against Wedul and Boettcher as individuals, alleging that they had, under color of state law, deprived her of her rights -under the Equal Protection Clause of the Fourteenth Amendment by intentionally discriminating against her. As relief for both claims, she sought punitive damages and compensatory damages for pain and suffering. After some discovery, the school and the individual defendants moved for summary judgment, arguing that the doctrines of issue and claim preclusion barred all of Waid’s claims. At this point, Waid also moved for partial summary judgment on the issue of discrimination as to each claim. She contended that the judgment of the Equal Rights Division operated, under the doctrine of issue preclusion, to prevent relitigation of this factual question. The district court denied Waid’s motion and entered summary judgment for MAPS, Wedul and Boettcher. II. Our review of the district court’s ruling is complicated by the fact that the legal grounds for that ruling, as stated in the district court’s opinion, are not entirely clear. The essence of the holding seems to be that Waid’s choice of a state administrative forum was, in effect, an election of remedies and that her success in that forum precluded her pursuit of compensatory and punitive damages under federal law in federal court. In one respect, the district court seemed to conclude that the availability of one remedy for employment discrimination may preempt or exclude the pursuit of others. But the district court described this holding in terms of issue preclusion doctrine, and its reasoning and case citations suggest that it may also have focused primarily on the doctrine of claim preclusion. Regardless of the district court’s own rationalization of its result, its decision relates primarily to the principles of preemption and preclusion. Although the parties have argued this case exclusively in terms of preclusion, we are compelled to address issues of preemption as well. We do this for two reasons. First, the district court’s reasoning points to preemption, albeit indirectly. Second, and more importantly,"
},
{
"docid": "11584736",
"title": "",
"text": "gives a state agency exclusive original jurisdiction over claims relating to that right, pursuit of a claim with the agency does not preclude the subsequent pursuit of related claims based on federal or state rights that could not have been asserted before the agency. See id. § 26(l)(c). Because the principles of claim preclusion do not require plaintiffs to make this kind of choice, she may therefore proceed in the forum of limited and exclusive jurisdiction without losing the opportunity to later litigate the claims not within that forum’s jurisdictional competency. Id. at § 26 cmt. c. These are the essential principles of the federal common law; but the federal common law does not rely on these principles alone. With respect to the decisions of state tribunals, it includes a principle commanding deference to the state laws of claim preclusion. See Elliott, 478 U.S. at 796-99, 106 S.Ct. at 3224-27. This deference arises from the recognition that the state’s definition of the claim preclusive effect of the decisions of its tribunals provides some information about the jurisdictional competency of those tribunals. See Marrese, 470 U.S. at 388-89, 105 S.Ct. at 1336 (Burger, C.J., concurring). When a state determines that a decision of one of its tribunals will not preclude the litigation of certain claims, the determination conveys, among other things, that the tribunal’s ability to decide such claims is limited. See id. This sort of information about the jurisdictional competency of state fora facilitates the application of federal claim preclusion rules. But this deference to state law is not unlimited. The federal courts will not decline to hear claims pertaining to federal rights solely on the basis of state res judica-ta principles. The federal common law of claim preclusion will provide ah independent basis for decision when state law would unduly inhibit the pursuit of federal rights. See id. at 383, 105 S.Ct. at 1333; see also Gjellum v. City of Birmingham, Ala., 829 F.2d 1056, 1064 (11th Cir.1987). With these principles in mind, we can determine whether Waid’s pursuit of a proceeding before the Equal Rights Division will preclude"
},
{
"docid": "8949769",
"title": "",
"text": "and § 1981 claims (alleging that his termination and suspensions were discriminatory) constitute the same cause of action under Illinois res judicata law as his state discharge proceeding. However, his claims that the Village denied him promotions and wages because of his race and national origin are separate causes of action not barred by res judicata. II. Despite our conclusion that Pirela’s claims of discriminatory termination and suspension constitute the same cause of action as the administrative discharge hearing and subsequent circuit court review, his federal suit is not necessarily barred by res judicata. It is a well-established principle that “[n]o decision may constitute res judi-cata ... if the party against whom it is asserted has not had a full and fair opportunity to litigate his claims.” Lee v. City of Peoria, 685 F.2d 196, 201 (7th Cir.1982) (citing Kremer, 456 U.S. at 481-82, 102 S.Ct. at 1897). That is, at its most basic, the state proceedings must satisfy minimum due process requirements. Kremer, 456 U.S. at 481-82, 102 S.Ct. at 1897-98; Welch, 907 F.2d at 719; Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1241 (7th Cir.1983). Therefore, even though Pirela’s claims of discriminatory practices in the Village’s termination process arise out of the same facts as his police board hearing, they are not barred if he lacked a “full and fair” opportunity to raise his discrimination claim before the police board. On appeal, Pirela maintains that he lacked a “full and fair” opportunity to litigate his claim of discrimination for several reasons. First, Pirela argues that Illinois law bars the Village from asserting a res judicata defense to his Title VII and § 1981 claims because the Board and circuit court had no jurisdiction to hear these claims. We disagree. Although Pirela argues that neither the police board nor the Illinois circuit court had jurisdiction to hear his discrimination claim because only federal courts have jurisdiction over Title VII claims, Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), clearly disposes of this argument. In Yellow Freight, the Supreme Court affirmed"
},
{
"docid": "14724270",
"title": "",
"text": "process claim before the district court. The first of these is also sufficient reason to reverse the district court’s judgment. This court has held that, where a plaintiff has a set of claims arising from one series of events, and where she has an unconstrained choice to proceed in a forum with jurisdiction to hear all her claims or a forum with limited jurisdiction, if she chooses to proceed in the latter, the claims that fall outside its jurisdictional reach will be barred. Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 864-65 (7th Cir.1996). Here, however, Carver and Kientzle had no such unconstrained choice. On the one hand, the ISLRB has exclusive jurisdiction to hear unfair labor practice grievances of Illinois state employees. See Stahulak v. City of Chicago, 291 Ill.App.3d 824, 225 Ill.Dec. 916, 684 N.E.2d 907, 911 (1997); Foley v. AFSCME Council 31, Local 2258, 199 Ill.App.3d 6, 144 Ill.Dec. 903, 556 N.E.2d 581, 583-84 (1990). On the other hand, the ISLRB is not empowered to hear a civil rights claim. Thus, because the federal court could not hear the unfair labor practice grievance and the state tribunal could not hear the civil rights claim, Carver and Kientzle were forced to split their claims as they did. Claim preclusion does not operate so harshly as to bar whichever set of claims the chosen forum could not hear. Waid, 91 F.3d at 865, discussing Restatement (Second) of Judgments § 26 cmt. c. Although we are reversing the district court’s decision to dismiss the case on res judicata grounds, we wish to emphasize that this ruling does not mean that the settlement agreement was a nullity. On remand, it will be open to the parties to debate the effect of the contractual release contained in the agreement on Carver’s and Kientzle’s § 1983 suit. Because this has not been explored in the proper context, we offer no further opinion on it at this time. The judgment of the district court is Reversed and the case is Remanded for further proceedings consistent with this opinion."
},
{
"docid": "11584738",
"title": "",
"text": "her Title IX claims. Our analysis is simplified by the fact that federal and state law on claim preclusion largely coincide; both place general reliance on the Restatement (Second) of Judgments. DePratt v. West Bend Mut. Ins. Co., 113 Wis.2d 306, 334 N.W.2d 883, 886 (1983). In terms of these principles of claim preclusion, the Equal Rights Division is clearly a forum of limited jurisdiction; it is only competent to hear claims arising under the Fair Employment Act. But this administrative agency also provides the only forum for state law claims of employment discrimination. Wisconsin courts have held that the Fair Employment Act does not create a private right of action in court and that all claims under it must be brought with the Equal Rights Division or not at all. Bachand v. Connecticut Gen. Life Ins. Co., 101 Wis.2d 617, 305 N.W.2d 149, 152 (App.1981). Given the Equal Rights Division’s exclusive jurisdiction over Waid’s state law claims, it is clear that she could not have consolidated all of her claims in a single lawsuit. Therefore, the decision of her state administrative proceeding does not preclude her claims arising under federal law. 2. We now turn to the question of issue preclusion. The Equal Rights Division engaged in factfinding with respect to the question of discrimination, although it did not consider any questions of intent. We must determine whether its factfinding can substitute for factfinding by a district court on this particular issue. According to the Supreme Court, federal courts in a state must give the fact-finding of a state agency the same issue preclusive effect to which it would be entitled in the courts of that state. Elliott, 478 U.S. at 799, 106 S.Ct. at 3226-27; see also Allahar v. Zahora, 59 F.3d 693, 696 (7th Cir.1995). This rule applies when an agency acts in a judicial capacity and determines factual questions that are properly before it. Elliott, 478 U.S. at 799, 106 S.Ct. at 3226-27. Under the terms of the Fair Employment Act, the Equal Rights Division clearly acted in a judicial capacity in resolving the factual question"
},
{
"docid": "11584742",
"title": "",
"text": "of these considerations, it would not be unfair to hold MAPS to the factfinding conducted by the Equal Rights Division. We hasten to point out that Waid has not won her Title IX claim simply by prevailing on the question of issue preclusion. To prove her claim in the district court, Waid must show that MAPS intentionally discriminated against her. The decision of the Equal Rights Division precludes relitigation of the question whether MAPS discriminated, but Waid still must prove that MAPS intended to do so. III. With respect to Waid’s claims against Wedul and Boettcher, the judgment of the district court is Affirmed. With respect to Waid’s claim under Title IX, the summary judgment for MAPS is Reversed and the denial of Waid’s partial motion for summary judgment is Reversed. This case is Remanded to the district court for further proceedings not inconsistent with this opinion. . Even when Congress has enacted statutes clearly defining rules of preclusion for the federal courts, the courts may, nevertheless, sometimes find exceptions to those rules. The courts are extremely reluctant to find such exceptions, but, when they do, the federal common law of preclusion typically fills the gap in the statute. See Marrese, 470 U.S. at 383, 105 S.Ct. at 1333. . When the decision of a state administrative agency receives judicial review by a state court, it becomes the judgment of a court and is subject to the Full Faith and Credit Act. . Elliott specifically addressed questions of issue preclusion, but its references to the federal common law of res judicata suggest that deference to the state law of preclusion is appropriate for both claim and issue preclusion doctrines. . Federal law does provide that claims under Tifie VII should begin their adjudication in a state administrative forum when that forum is competent to rule on state law claims that mirror Title VII claims. 42 U.S.C. § 2000e-5. This law does not, however, vest the state administrative body with jurisdiction to hear federal claims; the state legislature, not Congress, is the master of a state agency’s jurisdiction. The law expresses"
},
{
"docid": "22940036",
"title": "",
"text": "“maintain” in the FLSA is not an “express” prohibition on removal, Breuer held. One may say exactly the same about the right to sue in state court under § 227(b)(3). It does not mention removal or the general federal-question jurisdiction. It does not declare state jurisdiction to be exclusive. Thus it does not expressly override a defendant’s removal rights under both § 1441 (because a claim that a business violated the Telephone Consumer Protection Act arises under federal law) and the Class Action Fairness Act. Section 1445 has a list of non-removable actions that satisfy the “express prohibition” required by § 1441(a), and the Telephone Consumer Protection Act is not on that list. Breuer collects other express bars but does not include the Telephone Consumer Protection Act among them. 538 U.S. at 696-97, 123 S.Ct. 1882. The Class Action Fairness Act has its own list of claims to which its removal provisions are inapplicable, see 28 U.S.C. § 1453(d) (added by § 5(a) of the new Act), and the Telephone Consumer Protection Act is not on that list either. Other circuits, writing before Breuer, wondered what function § 227(b)(3) serves if it does not make state jurisdiction exclusive. Had Congress never penned those words, plaintiffs could have used state forums to the extent they were generally open to civil litigation. See Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947). That’s true enough, but restating an established norm can be beneficial, if only because it avoids any argument that for this law federal jurisdiction is exclusive. Such contentions are frequent and may entail decades of litigation across the thirteen circuits. See, e.g., Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990) (holding, after 26 years of litigation, that claims under the Civil Rights Act of 1964 may be resolved in state as well as federal courts); Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990) (holding, after 20 years of litigation, that claims under RICO may be resolved in state as well as federal courts)."
},
{
"docid": "11584737",
"title": "",
"text": "the jurisdictional competency of those tribunals. See Marrese, 470 U.S. at 388-89, 105 S.Ct. at 1336 (Burger, C.J., concurring). When a state determines that a decision of one of its tribunals will not preclude the litigation of certain claims, the determination conveys, among other things, that the tribunal’s ability to decide such claims is limited. See id. This sort of information about the jurisdictional competency of state fora facilitates the application of federal claim preclusion rules. But this deference to state law is not unlimited. The federal courts will not decline to hear claims pertaining to federal rights solely on the basis of state res judica-ta principles. The federal common law of claim preclusion will provide ah independent basis for decision when state law would unduly inhibit the pursuit of federal rights. See id. at 383, 105 S.Ct. at 1333; see also Gjellum v. City of Birmingham, Ala., 829 F.2d 1056, 1064 (11th Cir.1987). With these principles in mind, we can determine whether Waid’s pursuit of a proceeding before the Equal Rights Division will preclude her Title IX claims. Our analysis is simplified by the fact that federal and state law on claim preclusion largely coincide; both place general reliance on the Restatement (Second) of Judgments. DePratt v. West Bend Mut. Ins. Co., 113 Wis.2d 306, 334 N.W.2d 883, 886 (1983). In terms of these principles of claim preclusion, the Equal Rights Division is clearly a forum of limited jurisdiction; it is only competent to hear claims arising under the Fair Employment Act. But this administrative agency also provides the only forum for state law claims of employment discrimination. Wisconsin courts have held that the Fair Employment Act does not create a private right of action in court and that all claims under it must be brought with the Equal Rights Division or not at all. Bachand v. Connecticut Gen. Life Ins. Co., 101 Wis.2d 617, 305 N.W.2d 149, 152 (App.1981). Given the Equal Rights Division’s exclusive jurisdiction over Waid’s state law claims, it is clear that she could not have consolidated all of her claims in a single lawsuit."
},
{
"docid": "2816932",
"title": "",
"text": "281 (7th Cir.1994). Humphrey points out, correctly, that the state administrative agency lacked jurisdiction to consider his federal claims. Consequently, we must decide whether the fact that Humphrey initially brought his claim of race discrimination in a forum which could not consider his federal claims now precludes him from raising them in federal court. Our recent decision in Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir.1996), which involved the similarly preclusive effect of a decision by the same Wisconsin administrative agency, governs the answer to that question. As we noted in Wind, [P]rinciples [of federal common law] re- > quire plaintiffs to assert their claims initially in the forum with the broadest possible jurisdiction.... If a plaintiff has a collection of claims that arise from one set of events and has an unconstrained choice between a forum of limited jurisdiction and a forum of broad jurisdiction, a decision to proceed in the more limited forum precludes [him] from bringing the unlitigated claims in a subsequent proceeding. Id. at 864-65 (citing Restatement (Second) of Judgments, §§ 24, 25 cmt. e). Therefore, the issue is whether, because Humphrey chose an administrative agency rather than a judicial forum, he now is barred from bringing those claims which were denied for lack of jurisdiction. Under Waid, as long as there existed a tribunal before which Humphrey could have consolidated all his claims in a single lawsuit, the principles of claim preclusion bar his current federal suit, even though he could not have raised the federal claims before the ERD. Only where a plaintiff has some claims which can only be brought in a limited forum may he “proceed in the forum of limited and exclusive jurisdiction without losing the opportunity to later litigate the claims not within that forum’s jurisdictional competency.” Id. at 865 (citing Restatement (Second) of Judgments, § 26 cmt. c). Humphrey has always conceded that Wisconsin’s Public Accommodation Act, unlike the Fair Employment Act at issue in Waid, creates a private right of action. Wis. Stat. § 101.22(10)(e). Consequently, he could have brought his claims before a state"
},
{
"docid": "17304547",
"title": "",
"text": "entire controversy doctrine, as an “application of traditional res judicata principles ... [and] an aspect of the substantive law of New Jersey,” requires this Court to enforce the doctrine in hearing a federal claim as well. Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883 (3d Cir.1997). Furthermore, the doctrine itself could be read to preclude Dowdell as a matter of law from raising his federal claims, because state courts possess concurrent jurisdiction over Title VII claims. See Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990) (holding that jurisdiction over Title VII claims not exclusive to federal courts). Such an interpretation, however, would not entirely settle the question. While the entire controversy doctrine bars Dowdell’s NJLAD claims, its preclusive effects do not automatically extend to his Title VII claims as a matter of law. Cf. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (noting that state court decisions might preclude Title VII federal actions). This is due primarily to the fact that the EEOC did not issue Dowdell’s right to sue letter until October 8, 1998, some two months into the state litigation and over 500 days after he filed his EEOC complaint. In order to apply claim preclusion as a bar to Dowdell’s suit, this Court must find that “a particular issue, although not litigated, could have been raised in an earlier proceeding.” United States v. Athlone Indus., Inc., 746 F.2d 977, 983-84 (3d Cir.1984). An application of claim preclusion also requires: “(1) a final judgment on the merits in a prior suit involving; (2) the same parties or their privities; and (3) a subsequent suit based on the same cause of action.” Id. Therefore, in addition to determining whether Dowdell could have raised his Title VII claims in the earlier proceeding, this Court must ascertain whether Dowdell’s two lawsuits are based on the same cause of action — a determination which “turn[s] on the essential similarity of the underlying events giving rise to the various ¡legal claims.” Churchill, 183 F.3d at"
},
{
"docid": "22940037",
"title": "",
"text": "on that list either. Other circuits, writing before Breuer, wondered what function § 227(b)(3) serves if it does not make state jurisdiction exclusive. Had Congress never penned those words, plaintiffs could have used state forums to the extent they were generally open to civil litigation. See Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947). That’s true enough, but restating an established norm can be beneficial, if only because it avoids any argument that for this law federal jurisdiction is exclusive. Such contentions are frequent and may entail decades of litigation across the thirteen circuits. See, e.g., Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990) (holding, after 26 years of litigation, that claims under the Civil Rights Act of 1964 may be resolved in state as well as federal courts); Tafflin v. Levitt, 493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990) (holding, after 20 years of litigation, that claims under RICO may be resolved in state as well as federal courts). Section 227(b)(3) may serve the further function of freeing states from Testa’s rule that they may not discriminate against federal claims; the clause in § 227(b)(3) that the action is proper “if otherwise permitted by the laws or rules of court of a State” implies that each state may decide for itself whether to entertain claims under the Telephone Consumer Protection Act. Section 227(b)(3) does not say that state jurisdiction is “exclusive”—but another part of § 227 does use that word. Section 227(f)(1) permits the states themselves to bring actions based on a pattern or practice of violations. Section 227(f)(2) continues: “The district courts of the United States, the United States courts of any territory, and the District Court of the United States for the District of Columbia shall have exclusive jurisdiction over all civil actions brought under this subsection.” How strange it would be to make federal courts the exclusive forum for suits by the states, while making state courts the exclusive forum for suits by private plaintiffs. But then § 227(f)(2) is explicit"
},
{
"docid": "2816934",
"title": "",
"text": "judicial tribunal with jurisdiction to decide his federal claims. Similarly, a federal court could have decided Humphrey’s state law claims under the doctrine of supplemental jurisdiction. This distinguishes Humphrey from the plaintiff in Waid, who brought certain claims of employment discrimination over which the ERD had exclusive jurisdiction. Id. at 866. Because Humphrey elected to proceed before the Wisconsin Equal Rights Division, a forum of limited jurisdiction, even though he could and should have consolidated all his claims in a single lawsuit before a state or federal judicial tribunal, we hold that the judgment entered in the administrative proceeding now precludes his claims arising under federal law. CONCLUSION Humphrey chose to bring his suit before an administrative tribunal of limited jurisdiction, despite the availability of both state and federal forums with general jurisdiction to address all his claims. Consequently, claim preclusion bars him from re-litigating his suit in federal court. Because we hold that claim preclusion applies, we need not decide whether the action is also time-barred. Our finding renders moot Humphrey’s argument that issue preclusion, or collateral estoppel, bars Tharaldson from disputing its liability for discrimination. AFFIRMED. . Wisconsin has since re-codified this statute as § 106.04, and re-named the Department of Industry, Labor and Human Relations as the Department of Work Force Development. This opinion uses the statutory codification and nomenclature in effect at the time Humphrey brought suit. . Humphrey did not actually attempt to bring claims under 42 U.S.C. § 1981 and § 1982 before the Equal Rights Division. Rather, he sought to obtain compensatory and punitive damages — the remedy he now seeks in federal court — from the administrative tribunal, which correctly ruled that it lacked jurisdiction to award damages."
},
{
"docid": "2816933",
"title": "",
"text": "of Judgments, §§ 24, 25 cmt. e). Therefore, the issue is whether, because Humphrey chose an administrative agency rather than a judicial forum, he now is barred from bringing those claims which were denied for lack of jurisdiction. Under Waid, as long as there existed a tribunal before which Humphrey could have consolidated all his claims in a single lawsuit, the principles of claim preclusion bar his current federal suit, even though he could not have raised the federal claims before the ERD. Only where a plaintiff has some claims which can only be brought in a limited forum may he “proceed in the forum of limited and exclusive jurisdiction without losing the opportunity to later litigate the claims not within that forum’s jurisdictional competency.” Id. at 865 (citing Restatement (Second) of Judgments, § 26 cmt. c). Humphrey has always conceded that Wisconsin’s Public Accommodation Act, unlike the Fair Employment Act at issue in Waid, creates a private right of action. Wis. Stat. § 101.22(10)(e). Consequently, he could have brought his claims before a state judicial tribunal with jurisdiction to decide his federal claims. Similarly, a federal court could have decided Humphrey’s state law claims under the doctrine of supplemental jurisdiction. This distinguishes Humphrey from the plaintiff in Waid, who brought certain claims of employment discrimination over which the ERD had exclusive jurisdiction. Id. at 866. Because Humphrey elected to proceed before the Wisconsin Equal Rights Division, a forum of limited jurisdiction, even though he could and should have consolidated all his claims in a single lawsuit before a state or federal judicial tribunal, we hold that the judgment entered in the administrative proceeding now precludes his claims arising under federal law. CONCLUSION Humphrey chose to bring his suit before an administrative tribunal of limited jurisdiction, despite the availability of both state and federal forums with general jurisdiction to address all his claims. Consequently, claim preclusion bars him from re-litigating his suit in federal court. Because we hold that claim preclusion applies, we need not decide whether the action is also time-barred. Our finding renders moot Humphrey’s argument that issue"
},
{
"docid": "12217557",
"title": "",
"text": "transactions, out of which the action arose. Heyliger’s lawsuits under the Tennessee Human Rights Act and Title VII certainly arose out of the same transaction. And the decisions of the Tennessee courts resulted in a valid and final judgment on the merits of the state-law claims. Heyliger argues that this aspect of claim preclusion does not bar him from bringing a subsequent action, because two obstacles kept him from bringing his Title VII suit in state court. First, he avers that federal courts have exclusive jurisdiction over Title VII claims; but this ignores the Supreme Court’s determination, in Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), that state courts have concurrent jurisdiction over Title VII claims. Heyliger’s theory of exclusive federal jurisdiction (shared, prior to Donnelly, by the EEOC and the Third, Ninth, Tenth, and Eleventh Circuits, id. at 822 n. 2, 110 S.Ct. at 1568 n. 2) offers his federal lawsuit no protection against the rule found in Restatement (Second) of Judgments § 25, Comment e: When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. A bit more promisingly, Heyliger also argues that he could not, in any event, have filed a Title VII action until he received a right-to-sue letter from the EEOC, at which point the chancery court had already issued its judgment. As support for this theory, Heyliger relies on Whitfield, in which this court addressed similar, but not identical, circumstances. There, plaintiff Paris D. Goin filed an age-discrimination complaint under state law in Tennessee chancery court on December 23, 1982. The court entered final judgment against the plaintiff on February 8, 1983, only about forty-five days later. Goin then filed an ADEA complaint with the EEOC, and subsequently brought suit in district court. Defendants asserted"
},
{
"docid": "11584733",
"title": "",
"text": "decisions about a school’s compliance with the federal law of employment discrimination. See 20 U.S.C. § 1682. But these agency decisions will pertain to whether the school should continue to receive federal funds; they will not necessarily address any questions about whether a particular individual has or has not been the subject of intentional discrimination. And the Supreme Court has suggested that this administrative process is substantially different from (although not inconsistent with) the judicial process pertaining to individual rights under Title IX. See Cannon, 441 U.S. at 706-08, 99 S.Ct. at 1962-64. As such, there is no reason to think that the administrative process should entail special rules of res judicata for lawsuits in which individuals assert their own Title IX rights. In the absence of any specific legislative instruction, the federal common law of claim and issue preclusion will apply. 1. With respect to claim preclusion, the first question is whether Waid’s choice to bring claims in a state administrative forum that could not consider Title IX claims precludes her from raising those claims in a judicial forum. The federal common law depends upon widely recognized principles that are essentially expressed in the Restatement (Second) of Judgments. See Marrese, 470 U.S. at 382-83, 105 S.Ct. at 1332-33 (indicating that the Restatement captures the broad contours of the federal common law of claim preclusion); Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981) (discussing federal rules of res judicata generally). In general, these principles require plaintiffs to assert their claims initially in the forum with the broadest possible jurisdiction. See Restatement (Second) of Judgments at §§ 24, 25. This method of procedure allows plaintiffs to resolve, in one adjudication, the maximum number of claims that arise from a set of events. If a plaintiff has a collection of claims that arise from one set of events and has an unconstrained choice between a forum of limited jurisdiction and a forum of broad jurisdiction, a decision to proceed in the more limited forum precludes her from bringing the unlitigated claims in a subsequent"
},
{
"docid": "8949770",
"title": "",
"text": "at 719; Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1241 (7th Cir.1983). Therefore, even though Pirela’s claims of discriminatory practices in the Village’s termination process arise out of the same facts as his police board hearing, they are not barred if he lacked a “full and fair” opportunity to raise his discrimination claim before the police board. On appeal, Pirela maintains that he lacked a “full and fair” opportunity to litigate his claim of discrimination for several reasons. First, Pirela argues that Illinois law bars the Village from asserting a res judicata defense to his Title VII and § 1981 claims because the Board and circuit court had no jurisdiction to hear these claims. We disagree. Although Pirela argues that neither the police board nor the Illinois circuit court had jurisdiction to hear his discrimination claim because only federal courts have jurisdiction over Title VII claims, Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 110 S.Ct. 1566, 108 L.Ed.2d 834 (1990), clearly disposes of this argument. In Yellow Freight, the Supreme Court affirmed our decision that the states and federal government share concurrent jurisdiction over Title VII claims. Id. at -, 110 S.Ct. at 1570; see also Donnelly v. Yellow Freight System, Inc., 874 F.2d 402 (7th Cir.1989). Accordingly, the federal courts do not have exclusive jurisdiction over Title VII claims. The police board was therefore permitted to hear Pirela’s discrimination defense. See, e.g., Lee, 685 F.2d at 200-01 (contemplating police board hearing of plaintiff’s discrimination defenses). Pirela also argues that his discrimination claim could not have been heard by either the police board or the state court because neither body had jurisdiction to hear this type of claim under Illinois law. To reach this conclusion, he maintains that the Illinois Human Rights Act vests sole jurisdiction over civil rights claims in the Illinois Human Rights Commission. In support of his argument, Pirela cites Mein v. Masonite Corp., 109 Ill.2d 1, 92 Ill.Dec. 501, 485 N.E.2d 312, 315 (1985), where the Illinois Supreme Court stated that the Illinois Human Rights Commission was to be “the exclusive source of"
},
{
"docid": "6622568",
"title": "",
"text": "administrative remedies have been exhausted. 42 U.S.C. §§ 2000e-5, e-16 (federal district court jurisdiction over Title VII actions); see also Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 825-26, 110 S.Ct. 1566, 1569-70, 108 L.Ed.2d 834 (1990) (state courts have inherent authority to adjudicate claims under 42 U.S.C. § 2000e-5(f)(3)). Nowhere within this statutory framework did Congress refer to the possibility of bringing a cause of action before the United States Court of Federal Claims. The presence of a comprehensive, precisely-drawn statutory scheme providing for judicial review in another forum will preempt Tucker Act jurisdiction in this Court. See e.g. United States v. Fausto, 484 U.S. 439, 454-55, 108 S.Ct. 668, 677, 98 L.Ed.2d 830 (1988) (Civil Service Reform Act); LeBlanc v. United States, 50 F.3d 1025, 1030 (Fed.Cir.1995) (Civil Service Reform Act); St. Vincent’s Medical Center v. United States, 32 F.3d 548, 550 (Fed.Cir.1994) (Medicare Act); Chin v. United States, 890 F.2d 1143, 1146 (Fed.Cir.1989) (where Congress has specified that suit may be brought in district court under Postal Reform Act, Congress could be said to intend to preclude suit in United States Court of Federal Claims). Accordingly, the United States Court of Federal Claims lacks jurisdiction to entertain a basic Title VII race discrimination claim, such as that found in paragraphs eight and nine of Plaintiffs complaint. This claim must be dismissed. See Montalvo, 17 Cl.Ct. at 748-49; See also Dixon, 17 Cl.Ct. at 77 (1989); Fausto, 16 Cl.Ct. at 752-53; Ayala v. United States, 16 Cl.Ct. 1, 4 (1988). The remaining claim, Plaintiffs breach of contract action to enforce her settlement agreement with the agency, requires further analysis. The issue Defendant’s motion to dismiss presents in this regard is whether the asserted breach of an agreement settling a job discrimination complaint against the United States amounts to an “action or proceeding” under Title VII — over which the United States Court of Federal Claims lacks jurisdiction — or amounts to a contractual action within the Court’s Tucker Act jurisdiction. Apparently presuming that usage of the phrase “breach of contract” in her pleading generates Tucker Act jurisdiction,"
},
{
"docid": "2816931",
"title": "",
"text": "applying the doctrine of claim preclusion. See Kratville v. Runyon, 90 F.3d 195, 197 (7th Cir.1996) (claim preclusion applies when there exist an identity of the causes of action, an identity of the parties or their privies, and a final judgment on the merits). Under the common law of merger, a prior judgment serves as a defense against a plaintiff attempting to re-litigate “not only those issues which were actually decided in [the] prior suit, but also all issues which could have been raised in that action.” Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d 337, 338 (7th Cir.1995). Ordinarily, it is the cause of action, and not the remedy, which determines whether claim preclusion applies: a claim can be barred even though the plaintiff seeks remedies or forms of relief not demanded in the original action. Pliska v. City of Stevens Point, Wisconsin, 823 F.2d 1168, 1172-73 (7th Cir.1987). We review de novo the district court’s dismissal on grounds of preclusion. City Nat'l Bank of Florida v. Checkers, Simon & Rosner, 32 F.3d 277, 281 (7th Cir.1994). Humphrey points out, correctly, that the state administrative agency lacked jurisdiction to consider his federal claims. Consequently, we must decide whether the fact that Humphrey initially brought his claim of race discrimination in a forum which could not consider his federal claims now precludes him from raising them in federal court. Our recent decision in Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir.1996), which involved the similarly preclusive effect of a decision by the same Wisconsin administrative agency, governs the answer to that question. As we noted in Wind, [P]rinciples [of federal common law] re- > quire plaintiffs to assert their claims initially in the forum with the broadest possible jurisdiction.... If a plaintiff has a collection of claims that arise from one set of events and has an unconstrained choice between a forum of limited jurisdiction and a forum of broad jurisdiction, a decision to proceed in the more limited forum precludes [him] from bringing the unlitigated claims in a subsequent proceeding. Id. at 864-65 (citing Restatement (Second)"
},
{
"docid": "11584735",
"title": "",
"text": "proceeding. Id. at §§ 24, 25 cmt. e. Consider a hypothetical ease in which a plaintiff has causes of action for unfair competition under state law and for trademark infringement under federal law. If this plaintiff brought a state court action for the unfair competition claim, he or she could not subsequently start a lawsuit in federal court on the basis of federal trademark law. The federal claims could have been brought in the state court along with the state claims; or the state claims could have been brought in federal court along with the federal claims under the federal court’s supplemental jurisdiction. See id. at § 25, cmt. e, illus. 11. This preclusion occurs, however, only if the plaintiffs choice of fora really is unconstrained. If some of the plaintiffs claims are exclusively committed to one forum with limited jurisdiction, she would have to surrender some of her claims by making a choice between the forum with limited jurisdiction and the forum with broader jurisdiction. For example, if state law creates a right and gives a state agency exclusive original jurisdiction over claims relating to that right, pursuit of a claim with the agency does not preclude the subsequent pursuit of related claims based on federal or state rights that could not have been asserted before the agency. See id. § 26(l)(c). Because the principles of claim preclusion do not require plaintiffs to make this kind of choice, she may therefore proceed in the forum of limited and exclusive jurisdiction without losing the opportunity to later litigate the claims not within that forum’s jurisdictional competency. Id. at § 26 cmt. c. These are the essential principles of the federal common law; but the federal common law does not rely on these principles alone. With respect to the decisions of state tribunals, it includes a principle commanding deference to the state laws of claim preclusion. See Elliott, 478 U.S. at 796-99, 106 S.Ct. at 3224-27. This deference arises from the recognition that the state’s definition of the claim preclusive effect of the decisions of its tribunals provides some information about"
}
]
|
290375 | this action should be dismissed for lack of standing. The holding of the Eleventh Circuit in the second appeal does not have relevance to this action. 7. Rule 17(a) Relief is not Appropriate. Although never having filed a motion for substitution of parties, plaintiff for the first time in its July 2007 opposition to the motion to dismiss makes an alternative suggestion to the court that substitution of parties under Rule 17(a) would be an appropriate action for the court to take if the court determines that Gillig is the real party in interest. The court disagrees. The standard for determining whether the court should order a substitution of parties under 17(a) at a plaintiffs request was articulated in REDACTED The factors to be addressed are whether the plaintiff acted within a reasonable time after becoming aware of defendants’ objection to the plaintiffs right to pursue the action or whether the plaintiffs pursuit of the action in its own name was the result of an understandable mistake. Id. at 308. When the Fifth Circuit remanded Wieburg to the district court for further findings, the district court denied the requested substitution of parties, and dismissed the action for failure of the plaintiff to name the real party in interest. The plaintiff again appealed, and the Fifth Circuit affirmed. Wieburg v. GTE Southwest, Inc., 71 Fed.Appx. 440, 2003 WL 21417074 (5th Cir.2003) (No. 02-11217). In the course of affirming, the Fifth Circuit | [
{
"docid": "21684696",
"title": "",
"text": "interest in every case. In order to substitute the trustee as the real party in interest, Plaintiff must first establish that when he brought this action in his own name, he did so as the result of an honest and understandable mistake.”); Lans v. Gateway 2000, Inc., 84 F.Supp.2d 112, 120 (D.D.C.1999) (“it is appropriate to liberally grant leave to substitute a real party in interest when there has been an honest mistake in choosing the nominal plaintiff, meaning that determination of the proper party was somehow difficult at the time of the filing of the suit, or that the mistake is otherwise understandable.”), aff'd, 252 F.3d 1320 (Fed.Cir.2001); South African Marine Corp. v. United States, 640 F.Supp. 247, 254-55 (Ct. Int’l Trade 1986) (Rule 17(a) “should be used to prevent forfeiture and injustice where the determination as to who may sue is difficult”). In dismissing the complaint and denying the motion to vacate, the district court did not address whether Wieburg had a reasonable time after GTE’s objection during which to obtain joinder, ratification, or substitution of the Trustee, or whether her decision to pursue the action in her own name was the result of an understandable mistake. More importantly, it is unclear whether the district court considered the impact of the dismissal on Wieburg’s creditors, who are owed approximately $40,000. Because the statute of limitations has expired, the Trustee is precluded from asserting the discrimination claims in a subsequent action. Thus, the district court’s dismissal of the action means that the creditors will have no possibility of any recovery. Under these circumstances, and in the light of Rule 17(a)’s purpose of preventing forfeitures, we believe that it was an abuse of discretion for the district court to dismiss the action without explaining why the less drastic alternatives of either allowing an opportunity for ratification by the Trustee, or joinder of the Trustee, were inappropriate. See Sun Refining & Marketing Co. v. Goldstein Oil Co., 801 F.2d 343, 345 (8th Cir.1986) (Rule 17(a) designed to avoid unjust forfeiture of claims). VI For the foregoing reasons, the judgment of the"
}
]
| [
{
"docid": "5557600",
"title": "",
"text": "naming the real party in interest] has been made,” see U.S. for Use & Benefit of Wulff v. CM A Inc., 890 F.2d 1070, 1074 (9th Cir. 1989) (citing Note of Advisory Committee on 1966 Amendment to Fed. R. Civ. P. 17), courts “may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the' real party in interest to ratify, join, or be substituted into the action,” Fed. R. Civ. P. 17(a)(3). Because the district court did not commit legal error or reach an illogical or implausible decision in determining that the Rule 17(a)(3) exception does not apply in this case, we must affirm the district court (given our standard of review). Further, even assuming the Rule 17(a)(3) exception does apply, we must still affirm, because the district court satisfied the requirements of Rule 17(a)(3) before dismissing the Fourth Amendment claims. Finally, the Plaintiffs have never made the argument that the majority now articulates for them. A. The district court did not abuse its discretion in determining that the Rule 17(a)(3) exception does not apply to this case. The majority does not contend that “determination of the right party to sue” was difficult; indeed, that contention would have been difficult (if not impossible) to make. Nevada law plainly states who can bring a survival action. See Nev. Rev. Stat. § 41.100(3). The majority instead concludes that the district court abused its discretion in concluding that Plaintiffs’ mistake was not “understandable,” According to the majority, it was understandable that Plaintiffs believed that they had named the proper party (in the proper capacity), because the district court had approved a stipulation that would amend their complaint to name Decedent’s estate as a plaintiff. The district court did not refuse this reasoning illogically, implausibly, or without support for several reasons. First, the district court correctly reasoned that the law was so clear that the mistake was not understandable. The Nevada law does not allow an estate to bring a survival action. Yet Plaintiffs insisted"
},
{
"docid": "2634708",
"title": "",
"text": "to appellant UHIC’s second argument for reversal: that the requisites for a rule 17(a) substitution had not been established. UHIC contends, first, that the substitution was untimely. See Fed.R.Civ.P. 17(a) (“No action shall be dismissed on the ground that it is not pros ecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ... joinder or substitution of ... the real party in interest ____”) (emphasis added). Second, UHIC argues that Delta should not be entitled to a substitution because the investors’ status was obvious from the beginning. See id. advisory committee note (rule “is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.”). The procedural history of the case refutes UHIC’s contentions. On December 29, 1980, long before the district court determined that Delta was not a proper party plaintiff, Delta had attempted to ward off any challenge to its status by filing a motion for class certification. The motion remained pending without resolution by the district court up to and after the court’s order of June 7, 1982. Against this background, we decline to find that the district court exceeded its broad discretion in treating Delta’s request for substitution as timely. We also do not find it necessary to delve into whether the defect was so obvious as to constitute any forfeiture on Delta’s part, for the mistake is traceable to Crum and Leonard, who bear responsibility for the initial formulation of the suit. Appellants have failed to persuade us that the district court erred in permitting this substitution under rule 17(a). AFFIRMED. . See Gunter v. Hutcheson, 433 F.Supp. 42 (N.D.Ga.1977). The question apparently is an open one in the eleventh circuit, see Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1172 n. 1 (11th Cir.1982), but it has not been presented to us on this appeal. . UHIC has further requested that it be dismissed from the case because only Delta has asserted a claim against it. Because of"
},
{
"docid": "9688853",
"title": "",
"text": "Cir.2001). “Although generally, the mere passage of time, without more, is an insufficient reason to deny leave to amend a complaint, undue delay may clearly support such a denial.” Hester v. Int’l Union of Operating Eng’rs, 941 F.2d 1574, 1578-79 (11th Cir.1991) (citations omitted). When a party seeks to amend a complaint to change plaintiffs, Rule 17 also comes into play. See Fed.R.Civ.P. 15, Advisory Comm. Notes, 1966 Amend. Rule 17(a)(1) requires that “[a]n action must be prosecuted in the name of the real party in interest.” When the real party in interest is not properly named, Rule 17(a)(3) requires the court to provide an opportunity to substitute in the correct party before the court dismisses the case, provided that the substitution is made within a reasonable time after objection. The Advisory Committee’s comments make clear, though, that while the rule was added “in the interests of justice,” “[t]he provision should not be misunderstood or distorted. It is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed.R.Civ.P. 17, Advisory Comm. Notes, 1966 Amend. Accordingly, “most courts have interpreted ... Rule 17(a) as being applicable only when the plaintiff brought the action [in the name of the wrong party] as a result of an understandable mistake, because the determination of the correct party to bring the action is difficult.” Wieburg v. GTE Sw. Inc., 272 F.3d 302, 308 (5th Cir.2001) (citing cases); see also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1555, at 571 (3d ed. 2010) (“[I]t has been held that when the determination of the right party to bring the action was not difficult and when no excusable mistake had been made, then Rule 17(a)(3) is not applicable and the action should be dismissed.” (citing cases)). B. We review the District Court’s application of the Federal Rules to deny amendment and substitution for abuse of discretion. Bryant, 252 F.3d at 1163; Delta Coal Program v. Libman, 743 F.2d 852, 857 (11th Cir.1984). To the extent that the"
},
{
"docid": "21684693",
"title": "",
"text": "Co., 718 F.2d 143, 147 (5th Cir.1983) (formal joinder or substitution of real party in interest not necessary when he ratifies commencement of action); Naghiu v. Inter-Continental Hotels Group, Inc., 165 F.R.D. 413, 421 (D.Del.1996) (proper ratification requires ratifying party to authorize continuation of action and agree to be bound by result). The record contains no indication that such confirmation was ever given by the Trustee. Accordingly, the settlement agreement does not satisfy the fundamental purpose of Rule 17(a) — assuring GTE that res judicata will protect it from having to defend itself twice — and thus is inadequate to authorize Wieburg to pursue her discrimination claims solely in her own name. We therefore agree with the district court that the Trustee is the real party in interest and that Wieburg lacked standing to pursue the discrimination claims solely in her own name. V Having concluded that the Trustee is the real party in interest, we now turn to consider the propriety of the district court’s dismissal of the action. Wieburg contends that the district court erred by dismissing the claims without allowing her the opportunity to join or substitute the Trustee. GTE counters that the dismissal of the action was not an abuse of discretion because Wieburg had seven months during which she could have obtained the Trustee’s ratification, joinder, or substitution but, instead, deliberately chose not to do so. The last sentence of Rule 17(a) provides that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” Fed. R.CivP. 17(a). According to the Advisory Committee’s Notes, this provision was added “simply in the interests of justice” and “is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed.R.Civ.P. 17(a) Advisory Committee Notes, 1966 Amendment. We review the district court’s refusal to order the ratification, joinder, or"
},
{
"docid": "21684685",
"title": "",
"text": "settlement agreement was misplaced, because the bankruptcy court had held that Wieburg’s discrimination claims are property of the bankruptcy estate and that the bankruptcy court did not “even allude to the purported agreement.” Thus, the district court interpreted the bankruptcy court’s order as indicating that the Trustee is the only proper plaintiff to pursue Wieburg’s discrimination claims. Wieburg moved to vacate the judgment. She argued that there was no just basis for dismissing the action without allowing an opportunity for the Trustee to be joined or substituted. Although the Trustee was not a party to the action, Wieburg’s counsel represented in the motion that the Trustee joined in seeking vacatur of the district court’s judgment. On August 28, 2000, the district court denied the motion. Wieburg, again joined by the Trustee, has now timely appealed to us the judgment and the order denying her motion to vacate. We first turn to address some preliminary matters. II The Trustee was not a party in district court and has not sought to intervene in this appeal. Accordingly, the Trustee’s appeal must be dismissed. See Karcher v. May, 484 U.S. 72, 77, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) (“one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom”); McShane v. United States, 366 F.2d 286, 288 (9th Cir.1966) (“One cannot be an appellant here unless he had been a party in the court below and has taken the prescribed steps for the perfection of his appeal.”). III Wieburg conceded in district court that GTE Service Corporation was not her employer and was thus subject to dismissal. We therefore affirm the dismissal of GTE Service Corporation. We now turn to address the issues presented in this appeal. IV The first question before us is whether the district court erred in concluding that Wieburg lacks standing to pursue her discrimination claims. GTE argues that the Trustee has exclusive standing to assert these claims. We will review de novo this legal question. See Cadleway Properties, Inc. v. Andrews (In re Andrews), 239"
},
{
"docid": "21684694",
"title": "",
"text": "court erred by dismissing the claims without allowing her the opportunity to join or substitute the Trustee. GTE counters that the dismissal of the action was not an abuse of discretion because Wieburg had seven months during which she could have obtained the Trustee’s ratification, joinder, or substitution but, instead, deliberately chose not to do so. The last sentence of Rule 17(a) provides that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” Fed. R.CivP. 17(a). According to the Advisory Committee’s Notes, this provision was added “simply in the interests of justice” and “is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed.R.Civ.P. 17(a) Advisory Committee Notes, 1966 Amendment. We review the district court’s refusal to order the ratification, joinder, or substitution of the Trustee for abuse of discretion. See Scheufler v. General Host Corp., 126 F.3d 1261, 1270, 1272 (joinder or ratification of real party in interest under Rule 17(a)); see also Equal Employment Opportunity Comm’n v. Brown & Root, Inc., 688 F.2d 338, 341 (5th Cir. 1982) (joinder, Rules 19 and 21); Collateral Control Corp. v. Deal (Matter of Covington Grain Co., Inc.), 638 F.2d 1357, 1360 (5th Cir.1981) (substitution, Rule 25). In accordance with the Advisory Committee’s note, most courts have interpreted the last sentence of Rule 17(a) as being applicable only when the plaintiff brought the action in her own name as the result of an understandable mistake, because the determination of the correct party to bring the action is difficult. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir.1997) (district court retains discretion to dismiss action where there was no reasonable basis for naming incorrect party); Feist, 100 F.Supp.2d at 276 (“Rule 17(a) should not be applied blindly to permit substitution of the real party in"
},
{
"docid": "5557599",
"title": "",
"text": "Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010). . The district court dismissed the first and second claims- for relief (the Fourth Amendment claims) for lack of standing based on Federal Rule of Civil Procedure 17. Rule 17(a)(1) provides that-an action cannot be- prosecuted unless it is -asserted by the real party in interest. Thus, under Rule 17, a -claim must be dismissed if it is not brought by the real party in. interest. See Advanced-Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir. 1997). The parties, agree that the. named Plaintiffs (Johnathan Jones, Rosie Lee Mathews, and the Estate of Anthony Jones) are not the proper parties to assert the Fourth Amendment claims. Thus, we start with the assumption that these claims must be dismissed. The named parties do not have standing to bring them. - Rule 17(a)(3) does provide; a limited exception to this general rule. Rule 17(a)(3) provides that, (1) “when determination of the right party to sue is difficult,” or (2). “when an understandable mistake [in naming the real party in interest] has been made,” see U.S. for Use & Benefit of Wulff v. CM A Inc., 890 F.2d 1070, 1074 (9th Cir. 1989) (citing Note of Advisory Committee on 1966 Amendment to Fed. R. Civ. P. 17), courts “may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the' real party in interest to ratify, join, or be substituted into the action,” Fed. R. Civ. P. 17(a)(3). Because the district court did not commit legal error or reach an illogical or implausible decision in determining that the Rule 17(a)(3) exception does not apply in this case, we must affirm the district court (given our standard of review). Further, even assuming the Rule 17(a)(3) exception does apply, we must still affirm, because the district court satisfied the requirements of Rule 17(a)(3) before dismissing the Fourth Amendment claims. Finally, the Plaintiffs have never made the argument that the majority now articulates for them."
},
{
"docid": "21684683",
"title": "",
"text": "in the action, and the decision to settle the claims at any level or pursue the claims to trial will exclusively be within her control and mine as her counsel, subject to the obligation that any monies received by way of settlement or judgment be used first, before any attorney’s fees are paid to me or any proceeds are paid to her, to pay the finally allowed priority, administrative and unsecured claims of her creditors in her bankruptcy case and your trustee’s fees and any expenses you may incur in connection with the civil action, all subject to the approval of the bankruptcy court.... (Emphasis added.) The Trustee signed the letter, approving its terms. The January 11 letter was read into the record and made an exhibit at a hearing in the bankruptcy court on January 12. In short time, the Trustee filed, first, a motion to retain Wieburg’s counsel as counsel for the bankruptcy estate and, second, a Notice of Intent to Settle and Compromise, setting forth the terms of the settle ment. The bankruptcy court granted the motion to employ Wieburg’s attorney as counsel for the estate and, on March 3, 2000, authorized the Trustee to settle the bankruptcy adversary proceeding consistent with his Notice of Intent. On April 28, 2000, GTE supplemented its motion to dismiss. It asserted that Wieburg had had a reasonable time to join or substitute the Trustee, and that her claims should be dismissed or, alternatively, she should be ordered to join or substitute the Trustee as the real party in interest. In response, Wieburg contended that, in accordance with her agreement with the Trustee, she was properly pursuing the action without substitution or joinder by the Trustee and that, at most, the Trustee should be joined as a nominal co-plaintiff. Alternatively, Wieburg requested that the Trustee be joined, but not substituted, as a party in interest. On May 18, 2000, the district court granted GTE’s motion to dismiss. It held that Wieburg lacked standing because the Trustee was the real party in interest. The district court stated that Wieburg’s reliance on the"
},
{
"docid": "19964829",
"title": "",
"text": "it makes an error of law.” In re Superior Crewboats, Inc., 374 F.3d at 334 (internal citations and quotation marks omitted). “Accordingly, the abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” In re Coastal Plains, Inc., 179 F.3d at 205 (internal quotation marks omitted). We also review for abuse of discretion a district court’s denial of a motion to substitute the trustee for the debtor as the party plaintiff. Wieburg v. GTE Sw. Inc., 272 F.3d 302, 308 (5th Cir.2001) (addressing a motion to substitute as the proper party in interest under Rule 17(a) of the Federal Rules of Civil Procedure) (citing Collateral Control Corp. v. Deal (In re Covington Grain Co.), 638 F.2d 1357, 1360 (5th Cir.1981) (holding that a Rule 25 motion to substitute the real party in interest following a transfer of interest while the litigation is pending is reviewed for abuse of discretion)). Questions of law, including interpretation and application of the Bankruptcy Code, are reviewed de novo. State Farm Life Ins. Co. v. Swift (In re Swift), 129 F.3d 792, 795 (5th Cir.1997). III. DISCUSSION The district court relied on this court’s decision in In re Superior Crewboats, Inc., 374 F.3d 330, to conclude as a matter of law that the equitable doctrine of judicial estoppel should apply to bar the Kanes from pursuing their claim, and as a result, that the Trustee’s motion to substitute himself as the real party in interest is moot. Also, Defendants argue for the first time on appeal that even if the Trustee’s motion to substitute himself as the real party in interest was improperly denied as moot, relying on our decision in Wieburg, 272 F.3d 302, it should be denied as untimely under Rule 17(a). Because we conclude that the district court asked too much of our decision in In re Superior Crewboats, Inc., we reverse and remand. Defendants’ Rule 17(a) argument should be presented first to the district court. A. Background Legal Principles Pursuant to the Bankruptcy Code, debtors are under a continuing duty to disclose all"
},
{
"docid": "9688854",
"title": "",
"text": "understandable mistake has been made.” Fed.R.Civ.P. 17, Advisory Comm. Notes, 1966 Amend. Accordingly, “most courts have interpreted ... Rule 17(a) as being applicable only when the plaintiff brought the action [in the name of the wrong party] as a result of an understandable mistake, because the determination of the correct party to bring the action is difficult.” Wieburg v. GTE Sw. Inc., 272 F.3d 302, 308 (5th Cir.2001) (citing cases); see also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 1555, at 571 (3d ed. 2010) (“[I]t has been held that when the determination of the right party to bring the action was not difficult and when no excusable mistake had been made, then Rule 17(a)(3) is not applicable and the action should be dismissed.” (citing cases)). B. We review the District Court’s application of the Federal Rules to deny amendment and substitution for abuse of discretion. Bryant, 252 F.3d at 1163; Delta Coal Program v. Libman, 743 F.2d 852, 857 (11th Cir.1984). To the extent that the court’s denial of a motion for leave to amend or substitute a party is based on factual findings, we review those findings for clear error. Powers v. Graff, 148 F.3d 1223, 1226 (11th Cir.1998). While the court’s application of Rule 17 and 15 are obviously interrelated—-we analyze each rule separately, beginning with Rule 17. 1. In their briefs to this court, plaintiffs’ counsel never tackle head-on the District Court’s conclusion that Rule 17(a)(3) was unavailable to them because of the way in which these 588 cases were filed'— that is, seemingly without investigation or authorization. They acknowledge that Rule 17(a)(3) is only available “when an understandable mistake has been made in the determination of the proper party or where the determination is difficult,” Appellant Br. in 13-10839, at 27-28 (quotation marks omitted), yet they never explain why Mr. Wilner’s 588 mistakes were understandable—other than by suggesting, as a general proposition, that the size of the tobacco litigation and Engle IIPs tight deadline should excuse the many “technical pleading errors.” In this respect, plaintiffs’ counsel’s arguments"
},
{
"docid": "17884288",
"title": "",
"text": "17(a) “does not itself define real party in interest. Instead, it allows a federal court to entertain a suit at the instance of any party to whom the relevant substantive law grants a cause of action.” U-Haul Int'l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1038 (9th Cir.1986). Furthermore, Rule 17(a) recognizes that a “court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.” Fed.R.Civ.P. 17. In U-Haul, the Ninth Circuit provided the plaintiff the opportunity to seek ratification from the other real parties in interest before it would consider finding that the plaintiff lacked standing. 793 F.2d at 1040. There, the court further recognized that “[t]he modern function of [Rule 17] ... is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.” Id. at 1039 (citing Note of Advisory Committee on 1966 Amendment to Fed.R.Civ.P. 17). Here, the relevant substantive law grants plaintiffs a cause of action. Although plaintiffs have transferred their interest in this action to their estate by declaring bankruptcy, such an assignment does not preclude the trustee from ratifying plaintiffs’ continued pursuit of their cause of action. According to the terms of the stipulation, the trustee granted plaintiffs the authority to prosecute the claims, thereby providing the necessary ratification. In re Goldhaber, 10-BK-20052, Order Approving Stipulation, at ¶ 2. Furthermore, as the Supreme Court has recognized, “an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor.” Sprint Communications Co., L.P. v. APCC Services, Inc., 554 U.S. 269, 269, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008)."
},
{
"docid": "6225601",
"title": "",
"text": "decision referred to in that opinion, Zurich Insurance Co. v. Logitrans, Inc., 297 F.3d 528 (6th Cir.2002), is not the law of this Circuit, and also to express some doubt that it should be. My colleagues point out that the resolution of this issue is not necessary to our resolution of this appeal, and decline, therefore, to express their views on the subject. In Zurich Insurance Co., the Sixth Circuit affirmed the denial of a motion that had been brought in an attempt to cure a standing defect under Fed.R.Civ. P.17(a)(3). An insurance company subsidiary, Zurich Switzerland, initially thinking itself to be the subrogee of certain claims, requested leave of the district court to substitute the proper subrogee of all of those claims, a parallel subsidiary referred to as American Guarantee. Zurich Ins. Co., 297 F.3d at 530. The district court denied the motion, see id. at 530-31, and the court of appeals affirmed, id. The court of appeals concluded that because the plaintiff “had no standing to bring th[e] action, [it had] no standing to make a motion to substitute the real party in interest.” Id. at 531. The court explained: An attorney made a mistake and filed the action in the name of Zurich Switzerland, when Zurich Switzerland had no claims whatsoever against the defendants, and no Article III standing to sue. American Guarantee, a totally separate entity, which was not vigilant in protecting its claims, cannot now benefit from Zurich Switzerland’s mistake. Id. at 532. The court cited other cases— Ensley v. Cody Resources, Inc., 171 F.3d 315, 320 (5th Cir.1999), and Whelan v. Abell, 953 F.2d 663, 672 (D.C.Cir.1992) — in which courts first determined that a plaintiff had standing independent of any requested substitution before addressing the Rule 17 inquiry, Zurich Ins. Co., 297 F.3d at 532. Those cases did not address whether that order of operations was constitutionally required. As our opinion notes, some courts and commentators have criticized Zurich Insurance Co. See ante at 423. I think this criticism has some merit. It was undisputed in Zurich Insurance Co. that an entity, waiting"
},
{
"docid": "8691152",
"title": "",
"text": "real party in interest’s ratification to proceed with the refund causes of action. Rule 17(a) enables Dunmore to avoid being dismissed for failing to be the real party in interest when he filed his complaint and being time-barred upon refiling. Provided Dunmore’s decision to sue in his own name was an “understandable mistake,” the real party in interest’s ratification relates back to the October 17, 1997, filing date of the complaint. United States v. CMA, Inc., 890 F.2d 1070, 1074 (9th Cir.1989); Note of Advisory Committee on 1966 Amendment to Fed.R.Civ.P. 17. Here, the bankruptcy estate was the real party in interest because it owned the refund claims when Dunmore filed his October 1997 complaint. We assume without deciding that when the bankruptcy trustee abandoned the refund claims in February 1999, the abandonment could constitute the estate’s ratification of Dun-more’s lawsuit. This ratification would have the same effect as if the estate itself had originally commenced the action, so long as Dunmore’s decision to sue in his own name represented an understandable mistake and not a strategic decision. See, e.g., Wieburg v. GTE S.W., Inc., No. 3:98-CV-2057-R, 2002 WL 31156431, at *1, 2002 U.S. Dist. LEXIS 18141, at **6-7 (N.D.Tex. Sept. 26, 2002) (finding plaintiff did not make an understandable mistake where she sued in her own name after having concealed her discrimination claims from the bankruptcy trustee), aff'd without opinion, 71 Fed.Appx. 440 (5th Cir.2003). During oral argument, the Government explained that whether Dunmore’s decision to sue in his own name was an “understandable mistake” remained an open question because the bankruptcy court never made any factual findings on the issue. We cannot conclude on the present record whether Dunmore may have recourse to Rule 17(a) to cure his prudential standing defect because of any “understandable mistake.” Accordingly, we will remand to the district court for appropriate further factual findings. Because the district court and bankruptcy court dismissed this case on non-standing grounds, we address below the jurisdictional issues in the event that the court concludes on remand that Dunmore cured his standing defect. B. Whether the bankruptcy court"
},
{
"docid": "21684684",
"title": "",
"text": "bankruptcy court granted the motion to employ Wieburg’s attorney as counsel for the estate and, on March 3, 2000, authorized the Trustee to settle the bankruptcy adversary proceeding consistent with his Notice of Intent. On April 28, 2000, GTE supplemented its motion to dismiss. It asserted that Wieburg had had a reasonable time to join or substitute the Trustee, and that her claims should be dismissed or, alternatively, she should be ordered to join or substitute the Trustee as the real party in interest. In response, Wieburg contended that, in accordance with her agreement with the Trustee, she was properly pursuing the action without substitution or joinder by the Trustee and that, at most, the Trustee should be joined as a nominal co-plaintiff. Alternatively, Wieburg requested that the Trustee be joined, but not substituted, as a party in interest. On May 18, 2000, the district court granted GTE’s motion to dismiss. It held that Wieburg lacked standing because the Trustee was the real party in interest. The district court stated that Wieburg’s reliance on the settlement agreement was misplaced, because the bankruptcy court had held that Wieburg’s discrimination claims are property of the bankruptcy estate and that the bankruptcy court did not “even allude to the purported agreement.” Thus, the district court interpreted the bankruptcy court’s order as indicating that the Trustee is the only proper plaintiff to pursue Wieburg’s discrimination claims. Wieburg moved to vacate the judgment. She argued that there was no just basis for dismissing the action without allowing an opportunity for the Trustee to be joined or substituted. Although the Trustee was not a party to the action, Wieburg’s counsel represented in the motion that the Trustee joined in seeking vacatur of the district court’s judgment. On August 28, 2000, the district court denied the motion. Wieburg, again joined by the Trustee, has now timely appealed to us the judgment and the order denying her motion to vacate. We first turn to address some preliminary matters. II The Trustee was not a party in district court and has not sought to intervene in this appeal. Accordingly,"
},
{
"docid": "6225586",
"title": "",
"text": "deficiency in the action as filed. But it did invoke Rule 17 in the context of the defendant’s standing objection in the Deutsche Bank action, arguing that it should have been given the opportunity to substitute the noteholders as the real parties in interest or to obtain a new assignment. Deutsche Bank Op., 2013 WL 3762882, at *3, 2013 U.S. Dist. LEXIS 100741, at *10-11. And the district court squarely addressed those arguments, denying the requests. Id., 2013 WL 3762882, at *3 & n. 4, 2013 U.S. Dist. LEXIS 100741 at *1112 & 12 n. 4. Because the district court dismissed the present action “[f]or the reasons set forth” in the Deutsche Bank Opinion, Order, Cortlandt St. Recovery Corp. v. Aliberti, No. 12 Civ. 8685 JPO (S.D.N.Y. Aug. 2, 2013), thus reaching and rejecting Cort-landt’s implied 17(a)(3) objection, and because we may in any event exercise our discretion to consider an issue raised for the first time on appeal “where the argument presents a question of law and there is no need for additional fact-finding,” Bogle-Assegai, 470 F.3d at 504 (internal quotation marks omitted), we decline to conclude that Cortlandt has forfeited its rights under Rule 17. The question then is whether the district court abused its discretion in denying an amendment request under Rule 17. We have had few occasions on which to address this issue. See Schreiber, 407 F.3d at 43 (noting that as of 2005 “this [C]ircuit appears never to have stated the proper standard of review for a district court’s application of the curative procedures set forth in that rule”). In Advanced Magnetics, our Circuit’s leading case interpreting the Rule, we concluded that the assignment agreements in issue “were insufficient to transfer to [the plaintiff] ownership of the claims of the [assignors] and hence were insufficient to permit [the plaintiff] to sue on those claims in its name.” 106 F.3d at 18 (emphasis added). We nonetheless returned the case to the district court directing “that leave to file the proposed amended complaint substituting the [assignors] as plaintiffs to pursue their own claims [be] granted under Rule"
},
{
"docid": "6225590",
"title": "",
"text": "also noted that “ ‘where courts in this Circuit have used [] Rule 17(a)(3) to remedy defects in standing, they have generally done so where the plaintiff clearly had standing on another claim that it brought.’ ” Id., 2013 U.S. Dist. LEXIS 100741, at *11-12 (quoting Clarex Ltd., 2012 WL 4849146, at *8, 2012 U.S. Dist. LEXIS 147485, at *22) (brackets in original). In other words, in the absence of a plaintiff with standing, this lawsuit was a nullity, and there was therefore no lawsuit pending for the real party in interest to “ratify, join, or be substituted into” under Rule 17(a)(3) or otherwise. The question whether a plaintiff may use Rule 17(a)(3) to remedy a standing deficiency when it lacks standing as to all of its claims — as is the case here — appears to be an issue of first impression in this Court, if not the district courts in this Circuit. See W.R. Huff, 549 F.3d at 104 n. 3 (avoiding Rule 17(a) question where only issue on appeal was constitutional standing); Lunney v. United States, 319 F.3d 550, 556-57 (2d Cir.2003) (avoiding Rule 17(a) question by affirming dismissal on other jurisdictional grounds). At least one other circuit has addressed the question, see Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528, 531 (6th Cir.2002) (plaintiff that “had no standing to bring th[e] action [had] no standing to make a motion to substitute the real party in interest”), although this decision has' met with some criticism, see, e.g., Park B. Smith, Inc. v. CHF Indus. Inc., 811 F.Supp.2d 766, 773-74 & n. 3 (S.D.N.Y.2011) (declining to follow Zurich Insurance Co. based on the district court’s view that that case adopted an unnecessarily “rigid” approach); 13A Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 3531 n. 61 (3d ed.2014) (characterizing Zurich Insurance Co. as “particularly troubling”). We need not, however, resolve this question to dispose of Cortlandt’s request to attempt to cure the standing defect under Fed.R.Civ.P. 17(a)(3). We affirm because neither of the requests made by Cortlandt in its. effort to cure the standing"
},
{
"docid": "21684686",
"title": "",
"text": "the Trustee’s appeal must be dismissed. See Karcher v. May, 484 U.S. 72, 77, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) (“one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom”); McShane v. United States, 366 F.2d 286, 288 (9th Cir.1966) (“One cannot be an appellant here unless he had been a party in the court below and has taken the prescribed steps for the perfection of his appeal.”). III Wieburg conceded in district court that GTE Service Corporation was not her employer and was thus subject to dismissal. We therefore affirm the dismissal of GTE Service Corporation. We now turn to address the issues presented in this appeal. IV The first question before us is whether the district court erred in concluding that Wieburg lacks standing to pursue her discrimination claims. GTE argues that the Trustee has exclusive standing to assert these claims. We will review de novo this legal question. See Cadleway Properties, Inc. v. Andrews (In re Andrews), 239 F.3d 708, 710 n. 3 (5th Cir.2001). A Our determination of the proper party to assert Wieburg’s discrimination claims is governed by Rule 17(a) of the Federal Rules of Civil Procedure. It requires that “[e]very action shall be prosecuted in the name of the real party in interest.” “The real party in interest is the person holding the substantive right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery.” Farrell Construction Co. v. Jefferson Parish, La., 896 F.2d 136, 140 (5th Cir.1990). The purpose of this provision “is to assure a defendant that a judgment will be final and that res judicata will protect it from having to twice defend an action, once against an ultimate beneficiary of a right and then against the actual holder of the substantive right.” Id. at 142. Wieburg filed for bankruptcy after the events giving rise to her discrimination claims had occurred. Therefore, consistent with the settlement agreement between Wieburg and the Trustee, the Trustee’s Notice of Intent, and the bankruptcy court’s"
},
{
"docid": "6843444",
"title": "",
"text": "F.3d 817, 819-20 (11th Cir.2002) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)(addi tional citations omitted)). It is undisputed that Barger’s employment discrimination claims satisfy all of these requirements. The issue is really about who can litigate the claim, Barger or the Trustee. Determining the identity of the party who can properly assert the employment discrimination claims begins with Federal Rule of Civil Procedure 17(a). Rule 17(a) states that “[e]very action shall be prosecuted in the name of the real party in interest.” Id. It also provides that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” Id. Because Barger filed her bankruptcy petition after she filed her discrimination claims her discrimination claims are the property of the bankruptcy estate. See 11 U.S.C. § 541(a) (property of bankruptcy estate includes all potential causes of action that exist at the time petitioner files for bankruptcy). Accordingly, the Trustee is the real party in interest and it has exclusive standing to assert any discrimination claims. See Wieburg v. GTE Southwest Incorporated, 272 F.3d 302, 306 (5th Cir.2001)(finding that a trustee is the real party in interest with exclusive standing to assert claims which are property of the bankruptcy estate) (citations omitted). Although it was Barger who pursued the discrimination claims in the district court and it was she who filed this appeal, the Trastee may succeed her position from this point forward by virtue of Federal Rule of Civil Procedure 25(c). Rule 25(c) states that “[i]n case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom interest is"
},
{
"docid": "5557580",
"title": "",
"text": "name of the real party in interest until, after an objection, a reasonable time has been allowed.” Fed. R. Civ. P. 17(a)(3) (emphasis added). Rather than enter judgment immediately after noting the deficiency, the district court should have given plaintiffs a reasonable opportunity to substitute the right party. See, e.g., Esposito, 368 F.3d at 1272 (reversing district court’s dismissal because plaintiffs mistake was honest, even if not understandable, so court was required to give plaintiff an opportunity to substitute); Jaramillo v. Burkhart, 999 F.2d 1241, 1246 (8th Cir. 1993) (reversing district court’s dismissal because plaintiff wasn’t given a reasonable opportunity to substitute); Kilbourn v. West. Sur. Co., 187 F.2d 567, 571-72 (10th Cir. 1951) (reversing summary judgment so that real party in interest could be substituted); cf. Kuelbs v. Hill, 615 F.3d 1037, 1042-43 (8th Cir. 2010) (holding that district court gave plaintiffs reasonable time to substitute party when it ordered them to address the issue and waited six months before dismissing). The district court noted a “disconnect” between the date plaintiffs claimed their probate order appointing Jones’s father as administrator was filed and the actual filing date of that order. See supra note 2. But this “disconnect” had little to do with plaintiffs’ honest mistake—naming the estate, not the administrator of the estate, as a plaintiff—for which our case law requires relief under Rule 17. See, e.g., Goodman, 298 F.3d at 1053-54. Plaintiffs explained that they thought they had named the proper plaintiffs, and they did have the probate order signed—though not filed— at the time of the first amended complaint. They were entitled to a.reasonable amount of time to correct their error. Within five days of the district court’s ruling, plaintiffs filed a motion seeking leave to do so. They represented that they had the proper party ready to substitute in the action because Jones’s father was the administrator of the estate. Although they relied on Rule 15, the motion was one they were permitted to file under Rule 60(b)(1) and sought relief to which they were entitled under Rule 17. Defendants haven’t argued that the citation to"
},
{
"docid": "21684692",
"title": "",
"text": "conflict of interest, because we conclude that the settlement agreement does not satisfy the requirements of Rule 17(a), and consequently does not authorize Wieburg to pursue the discrimination claims solely in her own name. It is true that the settlement agreement grants Wieburg the right to pursue the discrimination claims in her own name without intervention by the Trustee. Nevertheless, it clearly recognizes that the claims belong, not to Wieburg, but to the bankruptcy estate. Importantly, because the claim remains the property of the bankruptcy estate, the settlement agreement does not give any assurance to GTE that the principle of res judicata will protect it from having to defend itself against the claims once again in a later action by the Trustee. Wieburg’s counsel apparently recognized this defect in the settlement agreement, as reflected in his May 5, 2000, letter to the district court’s law clerk, in which he stated that he was seeking confirmation from the Trustee of his being bound by any settlement' or judgment. See Big John, B.V. v. Indian Head Grain Co., 718 F.2d 143, 147 (5th Cir.1983) (formal joinder or substitution of real party in interest not necessary when he ratifies commencement of action); Naghiu v. Inter-Continental Hotels Group, Inc., 165 F.R.D. 413, 421 (D.Del.1996) (proper ratification requires ratifying party to authorize continuation of action and agree to be bound by result). The record contains no indication that such confirmation was ever given by the Trustee. Accordingly, the settlement agreement does not satisfy the fundamental purpose of Rule 17(a) — assuring GTE that res judicata will protect it from having to defend itself twice — and thus is inadequate to authorize Wieburg to pursue her discrimination claims solely in her own name. We therefore agree with the district court that the Trustee is the real party in interest and that Wieburg lacked standing to pursue the discrimination claims solely in her own name. V Having concluded that the Trustee is the real party in interest, we now turn to consider the propriety of the district court’s dismissal of the action. Wieburg contends that the district"
}
]
|
595033 | Chief Justice Rehnquist delivered the opinion of the Court. Respondent Iris REDACTED We hold that Mena’s detention in handcuffs for the length of the search was consistent with our opinion in Michigan v. Summers, 452 U. S. 692 (1981), and that the officers’ questioning during that detention did not violate her Fourth Amendment rights. * * * Based on information gleaned from the investigation of a gang-related, driveby shooting, petitioners Muehler and Brill had reason to believe at least one member of a gang — the West Side Locos — lived at 1363 Patricia Avenue. They also suspected that the individual was armed and dangerous, since he had recently been involved in the driveby shooting. As a result, Muehler obtained a search warrant for 1363 Patricia Avenue that authorized a broad search | [
{
"docid": "15604165",
"title": "",
"text": "February 3, 1998, several officers from the Simi Valley Police Department (SVPD) SWAT team executed a valid search warrant at 1363 Patricia Avenue. Brill and Muehler were directly responsible for supervising the search. The police officers searched the residence as part of their investigation of a gang-related drive-by shooting. The officers believed that Raymond Romero, the officers’ primary suspect, was residing in the house, a single-family dwelling housing many unrelated residents. Iris Mena was a resident in the house, which was owned by her father, Jose Mena. The police officers forcibly entered the residence and observed that some of the rooms were locked, many with padlocks on the outsides of the doors. The officers proceeded to force entry into these locked rooms, including the'bedroom in which Mena was sleeping. The officers, wearing SWAT team paraphernalia, found Mena in bed, and, pointing a submachine gun at her head, turned her over onto her stomach and handcuffed her. After searching her person and her room, the officers led Mena — barefoot and still wearing her pajamas — outside through the rain to a cold garage. Although she was absolutely compliant, the officers detained Mena in handcuffs for approximately two to three hours. While the police officers held Mena in the garage, the officers did not explain to her the reason she was being detained. During her detention, an immigration officer who had joined the police on the search asked Mena questions concerning her citizenship status. Upon learning from Mena that her citizenship documentation was in her purse, a police officer searched her purse without her consent. The police officers did not release Mena from the handcuffs until after they completed the search of the premises, at which time they finally informed her why she had been detained. On October 19, 1998, Mena brought an action under 42 U.S.C. § 1983, alleging that the police officers violated her civil rights in connection with the February 3, 1998, search of her home. Specifically, she contended that (1) the search warrant and search were overbroad; (2) the officers detained Mena unlawfully; (3) the officers detained"
}
]
| [
{
"docid": "22796656",
"title": "",
"text": "not address this contention, we too decline to address it. See Pierce County v. Guillen, 537 U. S. 129, 148, n. 10 (2003); National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 469-470 (1999). The judgment of the Court of Appeals is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. In determining whether a Fourth Amendment violation occurred we draw all reasonable factual inferences in favor of the jury verdict, but as we made clear in Ornelas v. United States, 517 U. S. 690, 697-699 (1996), we do not defer to the jury’s legal conclusion that those facts violate the Constitution. In finding the officers should have released Mena from the handcuffs, the Court of Appeals improperly relied upon the fact that the warrant did not include Mena as a suspect. See Mena v. Simi Valley, 332 F. 3d 1255, 1263, n. 5 (CA9 2003). The warrant was concerned not with individuals but with locations and property. In particular, the warrant in this case authorized the search of 1363 Patricia Avenue and its surrounding grounds for, among other things, deadly weapons and evidence of street gang membership. In this respect, the warrant here resembles that at issue in Michigan v. Summers, 452 U. S. 692 (1981), which allowed the search of a residence for drugs without mentioning any individual, including the owner of the home whom police ultimately arrested. See People v. Summers, 407 Mich. 432, 440-443, 286 N. W. 2d 226, 226-227 (1979), rev’d, Michigan v. Summers, supra. Summers makes clear that when a neutral magistrate has determined police have probable cause to believe contraband exists, “[t]he connection of an occupant to [a] home” alone “justifies a detention of that occupant.” 452 U. S., at 703-704. The Court of Appeals’ reliance on United States v. Brignoni-Ponce, 422 U. S. 873 (1975), is misplaced. Brignoni-Ponce held that stops by roving patrols near the border “may be justified on facts that do not amount to the probable cause require[ment] for an arrest.” Id., at 880. We considered only whether the"
},
{
"docid": "2215194",
"title": "",
"text": "L.Ed. 436 (1948), the Court in Summers observed that [t]he point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers.... When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent. Summers, 452 U.S. at 703 n. 18, 101 S.Ct. 2587 (quoting Johnson, 333 U.S. at 13-14, 68 S.Ct. 367). . For these reasons, the dissent’s reliance on Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), also is not persuasive. The Court's opinion in Mushier, relying exclusively on Summers, recites the unremarkable proposition that “officers executing a search warrant for contraband have the authority 'to detain the occupants of the premises while a proper search is conducted.’ ” Muehler, 544 U.S. at 98, 125 S.Ct. 1465 (quoting Summers, 452 U.S. at 705, 101 S.Ct. 2587). Applying this well-settled principle, the Court held that “Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.” Id. (emphasis added). Similarly, as the dissent itself observes, the search and detention at issue in United States v. Photogrammetric Data Servs., 259 F.3d 229, 239 (4th Cir.2001), occurred after the police had obtained a warrant. . We further observe that even if the holding in Summers is extended at a future date such"
},
{
"docid": "2755290",
"title": "",
"text": "have known prior to the application for the warrant that the Mena residence was a multi-unit dwelling. While it is true that Muehler and Brill both had been to the Mena residence on prior occasions, they were in the house for only a short time. Furthermore, although Muehler testified in his deposition that he observed that all of the doors adjacent to the living room were shut and that some of them were padlocked, he also testified that he did “not know[ ] where those doors led.” No evidence refutes this statement. Officer Muehler’s description in the affidavit prepared for the warrant of the residence is both accurate and materially consistent with the extrinsic facts as he knew them at the time. The fact that Anthony Romero told the officers that his brother lived in a “residence with a large number of subjects residing in a residence designed for one family” does not suggest that the officers knew or should have known that the house was a multi-unit dwelling. The facts in this case are plainly distinguishable from the facts in Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir.1997), wherein we denied qualified immunity to officers because the plaintiffs there made a sufficient showing of “deliberate or reckless dishonesty” on the part of the affiant for a disputed search warrant. Under the circumstances, Defendants reasonably could have believed at the time the warrant was issued that there was probable cause to search the entire premises. Cf. United States v. Williams, 917 F.2d 1088, 1091-92 (8th Cir.1990) (holding that officers were entitled to qualified immunity because they did not know the residence for which they obtained a warrant actually contained multiple units). Accordingly, we hold as a matter of law that Defendants are entitled to qualified immunity with regard to the claim that the search warrant for 1363 Patricia Avenue was overbroad. In this respect, we remand with instructions to enter a summary judgment in favor of all Defendants. B. Overbreadth of the Search Plaintiffs’ next argument is that the manner in which the search warrant was executed"
},
{
"docid": "2755278",
"title": "",
"text": "TROTT, Circuit Judge: City of Simi Valley Police Chief Randy' G. Adams and several police officers (collectively “Defendants”) appeal the district court’s denial of their motion for summary judgment based on qualified immunity. Defendants argue that the district court erred by failing to determine whether, under the clearly established law, the officers reasonably could have believed their conduct in obtaining and executing a search warrant for the residence of Jose and Iris Mena (collectively “Plaintiffs”) and in detaining Iris Mena was lawful. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, we AFFIRM in part, REVERSE in part, and REMAND to the district court. I BACKGROUND On January 13, 1998, Officers Darin L. Muehler (“Muehler”) and Robert Brill (“Brill”) of the Simi Valley Police Department (“SVPD”) responded to and began investigating a gang-related drive-by shooting in Simi Valley. During their investigation, Officers Muehler and Brill learned that their primary suspect, Raymond Romero, was in possession of a .25 caliber handgun used in the shooting. In addition, Raymond’s brother, Anthony, told Officers Muehler and Brill that Raymond Romero lived on Patricia Avenue in a “poor house,” which Anthony explained was “a residence with a large number of subjects residing in a residence designed for one family.” Anthony told the officers also that Raymond Romero’s friend (and fellow gang member), Genaro Gonzales (“Gonzales”), had lived at the house on Patricia Avenue, but that he believed Gonzales had moved to Mexico. Anthony explained that his brother kept some of his personal property at their mother’s house because “Raymond believes these items would be stolen at the Patricia Avenue location.” Finally, Anthony gave the officers his brother’s phone number, which was 522-9437. Subsequently, Officer Muehler had a police dispatcher call Raymond Romero’s phone number and pretend there was a problem with the “911” system on Patricia Avenue. The dispatcher asked the man who answered the phone to verify the address from which he was answering. In response, the man stated that the address was 1363 Patricia Avenue. The dispatcher then asked the man to hang up the phone and dial “911,” which he"
},
{
"docid": "4994831",
"title": "",
"text": "that the federal agent defendants battered them by handcuffing them upon entry into the Unus residence, and that the agents falsely imprisoned them by detaining them in handcuffs in the living room for several hours while the Warrant was executed. It has been consistently recognized that the Fourth Amendment protects a citizen’s right to be free from unreasonable seizures. See Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir.2009). In Michigan v. Summers, however, the Supreme Court explained that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” 452 U.S. at 705, 101 S.Ct. 2587. Moreover, in Muehler v. Mena, the Court observed that “[finherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention.” 544 U.S. 93, 98-99, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005). In his concurring opinion in Mena, Justice Kennedy further explained that “[t]he use of handcuffs is the use of force,” and that the employment of “such force must be objectively reasonable under the circumstances.” Id. at 103, 125 S.Ct. 1465 (Kennedy, J. concurring) (citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). In Mena, the Court reviewed the reasonableness of the two to three hour detention of a woman in handcuffs in her garage — along with three other occupants of her house — while police officers conducted a warranted search of the house for weapons and a wanted gang member. See 544 U.S. at 96, 125 S.Ct. 1465. Examining the circumstances surrounding that assertedly unlawful detention, the Court concluded that the officers’ use of handcuffs for the duration of the search was reasonable, “because the governmental interests out-weighted] the marginal intrusion.” Id. at 99, 125 S.Ct. 1465. Indeed, Chief Justice Rehnquist carefully explained that the length of a detention in handcuffs — even though somewhat lengthy — must be balanced against “the government’s continuing safety interest.” Id. at 100, 125 S.Ct. 1465. The"
},
{
"docid": "22796644",
"title": "",
"text": "Chief Justice Rehnquist delivered the opinion of the Court. Respondent Iris Mena was detained in handcuffs during a search of the premises that she and several others occupied. Petitioners were lead members of a police detachment executing a search warrant of these premises. She sued the officers under Rev. Stat. § 1979, 42 U. S. C. § 1983, and the District Court found in her favor. The Court of Appeals affirmed the judgment, holding that the use of handcuffs to detain Mena during the search violated the Fourth Amendment and that the officers’ questioning of Mena about her immigration status during the detention constituted an independent Fourth Amendment violation. Mena v. Simi Valley, 332 F. 3d 1255 (CA9 2003). We hold that Mena’s detention in handcuffs for the length of the search was consistent with our opinion in Michigan v. Summers, 452 U. S. 692 (1981), and that the officers’ questioning during that detention did not violate her Fourth Amendment rights. * * * Based on information gleaned from the investigation of a gang-related, driveby shooting, petitioners Muehler and Brill had reason to believe at least one member of a gang — the West Side Locos — lived at 1363 Patricia Avenue. They also suspected that the individual was armed and dangerous, since he had recently been involved in the driveby shooting. As a result, Muehler obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house and premises for, among other things, deadly weapons and evidence of gang membership. In light of the high degree of risk involved in searching a house suspected of housing at least one, and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was used to secure the residence and grounds before the search. At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team- and other officers, executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word “POLICE,” entered her bedroom and placed her in handcuffs at gunpoint."
},
{
"docid": "22796649",
"title": "",
"text": "not entitled to qualified immunity. Id., at 1266-1267. We granted certiorari, 542 U. S. 903 (2004), and now vacate and remand. * * * In Michigan v. Summers, 452 U. S. 692 (1981), we held that officers executing a search warrant for contraband have the authority “to detain the occupants of the premises while a proper search is conducted.” Id., at 705. Such detentions are appropriate, we explained, because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial. Id., at 701-705. We made clear that the detention of an occupant is “surely less intrusive than the search itself,” and the presence of a warrant assures that a neutral magistrate has determined that probable cause exists to search the home. Id., at 701. Against this incremental intrusion, we posited three legitimate law enforcement interests that provide substantial justification for detaining an occupant: “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search,” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force.” Id., at 702-708. Mena’s detention was, under Summers, plainly permissible. An officer’s authority to detain incident to a search is categorical; it does not depend on the “quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.” Id., at 705, n. 19. Thus, Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search. Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. See Graham v. Connor, 490 U. S. 386, 396 (1989) (“Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect"
},
{
"docid": "22796657",
"title": "",
"text": "authorized the search of 1363 Patricia Avenue and its surrounding grounds for, among other things, deadly weapons and evidence of street gang membership. In this respect, the warrant here resembles that at issue in Michigan v. Summers, 452 U. S. 692 (1981), which allowed the search of a residence for drugs without mentioning any individual, including the owner of the home whom police ultimately arrested. See People v. Summers, 407 Mich. 432, 440-443, 286 N. W. 2d 226, 226-227 (1979), rev’d, Michigan v. Summers, supra. Summers makes clear that when a neutral magistrate has determined police have probable cause to believe contraband exists, “[t]he connection of an occupant to [a] home” alone “justifies a detention of that occupant.” 452 U. S., at 703-704. The Court of Appeals’ reliance on United States v. Brignoni-Ponce, 422 U. S. 873 (1975), is misplaced. Brignoni-Ponce held that stops by roving patrols near the border “may be justified on facts that do not amount to the probable cause require[ment] for an arrest.” Id., at 880. We considered only whether the patrols had the “authority to stop automobiles in areas near the Mexican border,” id., at 874 (emphasis added), and expressed no opinion as to the appropriateness of questioning when an individual was already seized. See United States v. Martinez-Fuerte, 428 U. S. 543, 556-562 (1976). We certainly did not, as the Court of Appeals suggested, create a “requirement of particularized reasonable suspicion for purposes of inquiry into citizenship status.” 332 F. 3d, at 1267. Justice Kennedy, concurring. I concur in the judgment and in the opinion of the Court. It does seem important to add this brief statement to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged. The safety of the officers and the efficacy of the search are matters of first concern, but so too is it a matter of first concern that excessive force is not used on the persons detainéd, especially when these persons, though lawfully detained under Michigan v. Summers, 452 U. S. 692 (1981), are not themselves suspected of any involvement in criminal activity. The"
},
{
"docid": "2755279",
"title": "",
"text": "that Raymond Romero lived on Patricia Avenue in a “poor house,” which Anthony explained was “a residence with a large number of subjects residing in a residence designed for one family.” Anthony told the officers also that Raymond Romero’s friend (and fellow gang member), Genaro Gonzales (“Gonzales”), had lived at the house on Patricia Avenue, but that he believed Gonzales had moved to Mexico. Anthony explained that his brother kept some of his personal property at their mother’s house because “Raymond believes these items would be stolen at the Patricia Avenue location.” Finally, Anthony gave the officers his brother’s phone number, which was 522-9437. Subsequently, Officer Muehler had a police dispatcher call Raymond Romero’s phone number and pretend there was a problem with the “911” system on Patricia Avenue. The dispatcher asked the man who answered the phone to verify the address from which he was answering. In response, the man stated that the address was 1363 Patricia Avenue. The dispatcher then asked the man to hang up the phone and dial “911,” which he did. The incoming phone number was 522-9437, which was listed to Genaro Gonzales. When the dispatcher asked the man if he was Gonzales, he said “No. A friend,” and then he said that his name was Raymond. Based on this telephone call and the information learned from Anthony Romero, the officers concluded that Raymond Romero resided at 1363 Patricia Avenue, Simi Valley, California. The house located at 1363 Patricia Avenue, which Anthony Romero described as a “poor house,” was owned by Plaintiff Jose Mena. Although Jose Mena lived at the Patricia Avenue residence only part-time, his daughter, Iris, was a full-time resident. In addition, several other unrelated boarders lived in the Menas’ home, renting rooms in the house, space in the garage, and motorhouses and vans parked in the backyard. Notably, Officers Mueh-ler and Brill both had been to the Mena residence on police business on at least two prior occasions. On January 29, 1998, Officer Muehler executed an affidavit in support of a warrant to search the Mena house for, inter alia, “[djeadly weapons,"
},
{
"docid": "22796650",
"title": "",
"text": "the search,” as detainees’ “self-interest may induce them to open locked doors or locked containers to avoid the use of force.” Id., at 702-708. Mena’s detention was, under Summers, plainly permissible. An officer’s authority to detain incident to a search is categorical; it does not depend on the “quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.” Id., at 705, n. 19. Thus, Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search. Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention. See Graham v. Connor, 490 U. S. 386, 396 (1989) (“Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it”). Indeed, Summers itself stressed that the risk of harm to officers and occupants is minimized “if the officers routinely exercise unquestioned command of the situation.” 452 U. S., at 703. The officers’ use of force in the form of handcuffs to effectuate Mena’s detention in the garage, as well as the detention of the three other occupants, was reasonable because the governmental interests outweigh the marginal intrusion. See Graham, supra, at 396-397. The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage. The detention was thus more intrusive than that which we upheld in Summers. See 452 U. S., at 701-702 (concluding that the additional intrusion in the form of a detention was less than that of the warrant-sanctioned search); Maryland v. Wilson, 519 U. S. 408, 413-414 (1997) (conclud ing that the additional intrusion from ordering passengers out of a car, which was already stopped, was minimal). But this was"
},
{
"docid": "2215195",
"title": "",
"text": "these reasons, the dissent’s reliance on Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), also is not persuasive. The Court's opinion in Mushier, relying exclusively on Summers, recites the unremarkable proposition that “officers executing a search warrant for contraband have the authority 'to detain the occupants of the premises while a proper search is conducted.’ ” Muehler, 544 U.S. at 98, 125 S.Ct. 1465 (quoting Summers, 452 U.S. at 705, 101 S.Ct. 2587). Applying this well-settled principle, the Court held that “Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.” Id. (emphasis added). Similarly, as the dissent itself observes, the search and detention at issue in United States v. Photogrammetric Data Servs., 259 F.3d 229, 239 (4th Cir.2001), occurred after the police had obtained a warrant. . We further observe that even if the holding in Summers is extended at a future date such that exigent circumstances, as a general mat ter, could justify the prolonged detention of a suspect while a warrant is obtained, such an extension would not automatically answer the question posed in this case. In our view, it is doubtful whether the type of \"exigent circumstances” referenced by the Court in Summers would encompass the detention, for a period of three hours, of persons who are not suspected of participating in criminal activity. . Our decision in Cephas is also distinguishable on the basis that, once inside the apartment, the officers observed evidence of drug activity in plain view that was near the persons who were detained. See 254 F.3d at 491. Thus, in Cephas, in contrast to the present case, the police officers had individualized suspicion that the defendant was involved in criminal activity. . We reject the government’s argument, offered without any supporting authority, that the officers’ discovery of the firearm and ammunition was a qualifying \"intervening event” under the holding in Brown. The record does not provide any indication that, ab sent"
},
{
"docid": "2755282",
"title": "",
"text": "the surrounding grounds and any storage sheds, detached garages, or out buildings of any kind located thereon, any safes or locked boxes therein. Any vehicles that are registered to or belonging to occupants of the residence and that are on or adjacent to the property. Additionally, the warrant authorized the search of the person of Raymond Joseph Romero. At approximately 7:00 a.m. on February 3, 1998, several officers from the SVPD, including Muehler and Brill, along with a SWAT team, executed the search warrant on Mena’s residence. Defendants claim that, before entering the house, they complied with the knock and announce requirement. Specifically, Defendants declare that they (1) “pounded” on the front door, (2) yelled in both English and Spanish that they were from the SVPD, had a warrant, and intended to enter, (3) waited for approximately thirty seconds, and (4) entered the house after receiving no response. Iris Mena says, on the other hand, that the officers failed to comply with the knock and announce requirement. She bases this claim on her assertion that, although she was sleeping in the bedroom closest to the front door, she was not awakened by the alleged knock and announce. In any event, the officers used a battering ram to force entry into the Mena home. After entering the house, the officers observed that some of the rooms were locked, many with padlocks on the outside of the doors. Nevertheless, the officers proceeded to force entry into these locked rooms, including the bedroom in which Iris Mena was sleeping. The officers found Iris Mena in bed, forcibly turned her over, handcuffed her, and detained her in the bedroom until the residence was cleared and secured by the entry team. Once the house was secure, the members of the SWAT team left the premises, and the remaining officers searched the residence. At that point, Iris Mena and the other residents at 1363 Patricia Avenue were taken to the garage where they were detained, in handcuffs, for approximately two to three hours. During this time, the police refused to inform Iris Mena and the others"
},
{
"docid": "6566316",
"title": "",
"text": "deputies were seeking, the Court of Appeals held that “[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ safety.” Ibid. We need not pause long in rejecting this unsound proposition. When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search. In Michigan v. Summers, 452 U. S. 692 (1981), this Court held that officers executing a search warrant for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In weighing whether the search in Summers was reasonable the Court first found that “detention represents only an incremental intrusion on per sonal liberty when the search of a home has been authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search.” Id., at 702-703; see Muehler v. Mena, 544 U. S. 93 (2005). In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. Id., at 98-100; see also id., at 103 (Kennedy, J., concurring); Summers, supra, at 704-705. The test of reasonableness under the Fourth Amendment is an objective one. Graham v. Connor, 490 U. S. 386, 397 (1989) (addressing the reasonableness of a"
},
{
"docid": "2755295",
"title": "",
"text": "Patricia Avenue, although it was believed he had moved to Mexico; (3) street gang members often hide weapons and evidence in their homes and the homes of fellow gang members; (4) Romero had access to areas of the premises occupied by other residents, as evidenced by the fact that he answered Gonzales’s phone; and (5) other residents had access to Romero’s possessions, as evidenced by the fact that he was worried that some of his belongings might be stolen. In short, Defendants appear to be arguing that, because Romero and Gonzales were gang associates, and they both lived in this house, the police had probable cause to search the entire premises at 1363 Patricia Avenue. We reject Defendants’ argument because, at most, the aforementioned facts provided the officers with probable cause to search Romero’s room, Gonzales’s room (if he still lived there), and common areas. On the other hand, there is virtually no evidence in the record to show that Romero had access to or was in control of the locked rooms inhabited by the other residents, such as Iris Mena. As the district court correctly stated, “the law is well established that the officers ‘were required to discontinue the search of [Plaintiffs’ property not reasonably in Romero’s control] as soon as they discovered that there were [other] separate units [on the property] and therefore were put on notice of the risk that they might be in a [portion of the property] erroneously included within the terms of the warrant.’ ” (quoting Garrison, 480 U.S. at 87, 107 S.Ct. 1013). Because a reasonable jury considering all the facts could determine that it was unreasonable for the officers to continue the search, we affirm the district court’s denial of qualified immunity on this claim. C. Unlawful Detention Third, Plaintiffs contend that Iris Mena’s detention was unlawful on the basis of its duration and the manner in which it was carried out. Defendants once again assert that they are entitled to qualified immunity as a matter of law because “a reasonable officer at the scene could have believed that keeping the four"
},
{
"docid": "22796664",
"title": "",
"text": "to enter the Mena home to search for a gun belonging to Raymond Romero that may have been used in a gang-related driveby shooting. Romero, a known member of the West Side Locos gang, rented a room from the Mena family. The house, described as a “ ‘poor house,’ ” was home to several unrelated individuals who rented from the Menas. Brief for Petitioners 4. Each resident had his or her own bedroom, which could be locked with a padlock on the outside, and each had access to the living room and kitchen. In addition, several individuals lived in trailers in the back yard and also had access to the common spaces in the Mena home. Id., at 5. In addition to Romero, police had reason to believe that at least one other West Side Locos gang member had lived at the residence, although Romero’s brother told police that the individual had returned to Mexico. The officers in charge of the search, petitioners Muehler and Brill, had been at the same residence a few months earlier on an unrelated domestic violence call, but did not see any other individuals they believed to be gang members inside the home on that occasion. In light of the fact that the police believed that Romero possessed a gun and that there might be other gang members at the residence, petitioner Muehler decided to use a Special Weapons and Tactics (SWAT) team to execute the warrant. As described in the majority opinion, eight members of the SWAT team forcefully entered the home at 7 a.m. In fact, Mena was the only occupant of the house, and she was asleep in her bedroom. The police woke her up at gunpoint, and immediately handcuffed her. At the same time, officers served another search warrant at the home of Romero’s mother, where Romero was known to stay several nights each week. In part because Romero’s mother had previously cooperated with police officers, they did not use a SWAT team to serve that warrant. Romero was found at his mother’s house; after being cited for possession of a"
},
{
"docid": "22796645",
"title": "",
"text": "shooting, petitioners Muehler and Brill had reason to believe at least one member of a gang — the West Side Locos — lived at 1363 Patricia Avenue. They also suspected that the individual was armed and dangerous, since he had recently been involved in the driveby shooting. As a result, Muehler obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house and premises for, among other things, deadly weapons and evidence of gang membership. In light of the high degree of risk involved in searching a house suspected of housing at least one, and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was used to secure the residence and grounds before the search. At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team- and other officers, executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word “POLICE,” entered her bedroom and placed her in handcuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the property. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bedroom furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs. Aware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation. Mena’s status as a permanent resident was confirmed by her papers. The search of the premises yielded a .22 caliber handgun with .22 caliber ammunition, a box of .25 caliber ammunition, several- baseball bats with gang writing, various additional gang paraphernalia, and a bag"
},
{
"docid": "2755281",
"title": "",
"text": "specifically firearms including ammunition, casings, holsters and cleaning equipment, knives and accessories such as sheaves; [and] evidence of street gang membership or affiliation with any street gang....” In describing the Mena house, Muehler stated in the affidavit that Anthony Romero had explained that it was a “poor house,” meaning “a residence with a large number of subjects residing in a residence designed for one family.” However, Officer Muehler’s affidavit did not explain that he had been to the Mena residence before, or that he had observed that all of the doors adjacent to the living room were shut and that some of them had padlocks on them. Based on Officer Muehler’s affidavit, a magistrate judge issued a search warrant for Mena’s residence. In particular, the warrant authorized the search of: 1363 Patricia Avenue, City of Simi Valley, County of Ventura, State of California, which is further described as a single story, single family dwelling, ... with an attached garage.... To include all rooms, attics, basements, closets, storage areas, attached garages, and other parts therein; and the surrounding grounds and any storage sheds, detached garages, or out buildings of any kind located thereon, any safes or locked boxes therein. Any vehicles that are registered to or belonging to occupants of the residence and that are on or adjacent to the property. Additionally, the warrant authorized the search of the person of Raymond Joseph Romero. At approximately 7:00 a.m. on February 3, 1998, several officers from the SVPD, including Muehler and Brill, along with a SWAT team, executed the search warrant on Mena’s residence. Defendants claim that, before entering the house, they complied with the knock and announce requirement. Specifically, Defendants declare that they (1) “pounded” on the front door, (2) yelled in both English and Spanish that they were from the SVPD, had a warrant, and intended to enter, (3) waited for approximately thirty seconds, and (4) entered the house after receiving no response. Iris Mena says, on the other hand, that the officers failed to comply with the knock and announce requirement. She bases this claim on her assertion that,"
},
{
"docid": "22796646",
"title": "",
"text": "The SWAT team also handcuffed three other individuals found on the property. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bedroom furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs. Aware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation. Mena’s status as a permanent resident was confirmed by her papers. The search of the premises yielded a .22 caliber handgun with .22 caliber ammunition, a box of .25 caliber ammunition, several- baseball bats with gang writing, various additional gang paraphernalia, and a bag of marijuana. Before the officers left the area, Mena was released. In her § 1983 suit against the officers she alleged that she was detained “for an unreasonable time and in an unreasonable manner” in violation of the Fourth Ameñdment. App. 19. In addition, she claimed that the warrant and its execution were overbroad, that the officers failed to comply with the “knock and announce” rule, and that the officers had needlessly destroyed property during the search. The officers moved for summary judgment, asserting that they were entitled to qualified immunity, but the District Court denied their motion. The Court of Appeals affirmed that denial, except for Mena’s claim that the warrant was overbroad; on this claim the Court of Appeals held that the officers were entitled to qualified immunity. Mena v. Simi Valley, 226 F. 3d 1031 (CA9 2000). After a trial, a jury, pursuant to a special verdict form, found that Officers Muehler and Brill violated Mena’s Fourth Amendment right to be free from unreasonable seizures by detaining her both with force greater"
},
{
"docid": "22796663",
"title": "",
"text": "in Graham v. Connor, 490 U. S. 386 (1989), it misapplies that test. Given the facts of this case — and the presumption that a reviewing court must draw all reasonable inferences in favor of supporting the verdict — I think it clear that the jury could properly have found that this 5-foot-2-inch young lady posed no threat to the officers at the scene, and that they used excessive force in keeping her in handcuffs for up to three hours. Although Summers authorizes the detention of any individual who is present when a valid search warrant is being executed, that case does not give officers carte blanche to keep individuals who pose no threat in handcuffs throughout a search, no matter how long it may last. On remand, I would therefore instruct the Court of Appeals to consider whether the evidence supports Mena’s contention that the petitioners used excessive force in detaining her when it considers the length of the Summers detention. I As the Court notes, the warrant in this case authorized the police to enter the Mena home to search for a gun belonging to Raymond Romero that may have been used in a gang-related driveby shooting. Romero, a known member of the West Side Locos gang, rented a room from the Mena family. The house, described as a “ ‘poor house,’ ” was home to several unrelated individuals who rented from the Menas. Brief for Petitioners 4. Each resident had his or her own bedroom, which could be locked with a padlock on the outside, and each had access to the living room and kitchen. In addition, several individuals lived in trailers in the back yard and also had access to the common spaces in the Mena home. Id., at 5. In addition to Romero, police had reason to believe that at least one other West Side Locos gang member had lived at the residence, although Romero’s brother told police that the individual had returned to Mexico. The officers in charge of the search, petitioners Muehler and Brill, had been at the same residence a few months"
},
{
"docid": "2755280",
"title": "",
"text": "did. The incoming phone number was 522-9437, which was listed to Genaro Gonzales. When the dispatcher asked the man if he was Gonzales, he said “No. A friend,” and then he said that his name was Raymond. Based on this telephone call and the information learned from Anthony Romero, the officers concluded that Raymond Romero resided at 1363 Patricia Avenue, Simi Valley, California. The house located at 1363 Patricia Avenue, which Anthony Romero described as a “poor house,” was owned by Plaintiff Jose Mena. Although Jose Mena lived at the Patricia Avenue residence only part-time, his daughter, Iris, was a full-time resident. In addition, several other unrelated boarders lived in the Menas’ home, renting rooms in the house, space in the garage, and motorhouses and vans parked in the backyard. Notably, Officers Mueh-ler and Brill both had been to the Mena residence on police business on at least two prior occasions. On January 29, 1998, Officer Muehler executed an affidavit in support of a warrant to search the Mena house for, inter alia, “[djeadly weapons, specifically firearms including ammunition, casings, holsters and cleaning equipment, knives and accessories such as sheaves; [and] evidence of street gang membership or affiliation with any street gang....” In describing the Mena house, Muehler stated in the affidavit that Anthony Romero had explained that it was a “poor house,” meaning “a residence with a large number of subjects residing in a residence designed for one family.” However, Officer Muehler’s affidavit did not explain that he had been to the Mena residence before, or that he had observed that all of the doors adjacent to the living room were shut and that some of them had padlocks on them. Based on Officer Muehler’s affidavit, a magistrate judge issued a search warrant for Mena’s residence. In particular, the warrant authorized the search of: 1363 Patricia Avenue, City of Simi Valley, County of Ventura, State of California, which is further described as a single story, single family dwelling, ... with an attached garage.... To include all rooms, attics, basements, closets, storage areas, attached garages, and other parts therein; and"
}
]
|
177219 | U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). If the state proceeding is not criminal or quasi-criminal, it is nonetheless clear that, absent circumstances not present here, “the principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this, brought by the State in its sovereign capacity.” Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1923, 52 L.Ed.2d 486 (1977) (footnote omitted). Finally, appellants’ claims based on 42 U.S.C. § 1985 fail to state a cause of action because there is no allegation of any class-based animus. See, e. g., Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); REDACTED The district court order granting summary judgment for appellees is affirmed. . The Honorable Warren K. Urbom, Chief United States District Judge for the District of Nebraska. . Appellants’ claim for damages based on the alleged libel is also subject to dismissal for failure to state a cause of action under 42 U.S.C. § 1983. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). | [
{
"docid": "11501715",
"title": "",
"text": "PER CURIAM. Lonnie A. Massey, an inmate at Cum-mins, appeals from the dismissal of his civil rights complaint for failure to state a claim. On January 4, 1977, Massey filed a complaint styled “Petition for a criminal indictment against an agent of the F.B.I. * * under 1985(3) title 42 U.S.C.” The sole named defendant was Quinton Smith, an FBI agent. Massey alleged that Smith had conspired to subject him to cruel and unusual punishment. Specifically, Massey alleged that he wrote a letter to the Little Rock FBI office in December 1975 stating that he had been beaten and threatened by corrections officers and asking for the FBI’s help; that Agent Smith visited him in February 1976, took a statement from him, and told him that the statement would be forwarded to the Justice Department and that charges would be brought against the officers; and that in April 1976 the officers named in Massey’s statement placed him in the hole, beat him, showed him the statement he had given Smith and told him that they would beat him to death if he gave any more statements against them and that it would do no good to write to the FBI since Smith would give them any statements made against them. As relief, Massey asked that the court grant his petition, order an investigation into Smith’s action, and grant what other relief the court feels Massey is entitled to. The district court dismissed the complaint for failure to state a claim, stating that Massey had failed to allege any class-based animus, which is an element of a § 1985(3) cause of action. The court also noted that Massey was aware of the availability of § 1983 to redress constitutional deprivation such as the alleged beating, in that he has filed such actions on several occasions. This appeal followed. It is well settled that some class-based animus must be alleged to state a claim under § 1985(3). See, e. g., Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); McNally v. Pulitzer Pub. Co., 532 F.2d 69,"
}
]
| [
{
"docid": "23292718",
"title": "",
"text": "37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Younger held that abstention was required where a plaintiff who was defending criminal charges in state court sought to get the federal court to enjoin the ongoing state criminal proceedings. Id. at 53-54, 91 S.Ct. 746. Younger is grounded in notions of comity: the idea that the state courts should not, in certain circumstances,- be interfered with. See Huffman v. Pursue, Ltd., 420 U.S. 592, 601, 603-04, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). For at least two reasons, the abstention principle announced in Younger does not apply to this case. First, the ongoing state proceeding involved here is not the proper type of proceeding to require adherence to Younger principles. Younger itself occurred within the context of a criminal state proceeding. It has expanded beyond that context, however. “[C]ertain types of state civil proceedings” are also subject to Younger abstention. Quackenbush, 517 U.S. at 716-17, 116 S.Ct. 1712. The Supreme Court has extended abstention to two types of state civil actions. See NOPSI, 491 U.S. at 367-68, 109 S.Ct. 2506. First and most importantly, Younger has been extended to some quasi-criminal (or at least “coercive”) state civil proceedings — and even administrative proceedings — brought by the state as enforcement actions against an individual. Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 31-32, 34 (1st Cir.2004) (applying Younger principles to state administrative disciplinary proceeding of horse trainer); see, e.g., Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 434-35, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Younger abstention appropriate where plaintiff sought to enjoin ongoing state administrative attorney disciplinary proceedings); Moore v. Sims, 442 U.S. 415,- 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (Younger abstention appropriate in context of state child removal proceedings due to allegations of child abuse); Trainor v. Hernandez, 431 U.S: 434, 444, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (Younger applies to state proceeding to recover fraudulently obtained welfare payments); Huffman, 420 U.S. at 603-05, 95 S.Ct. 1200 (Younger abstention appropriate where plaintiff challenged ongoing state civil nuisance proceedings); Esso Standard Oil Co., 389"
},
{
"docid": "16259717",
"title": "",
"text": "law claims were also alleged. In ruling on a motion to dismiss filed by the defendants, the district court (1) dismissed plaintiffs’ claims brought pursuant to 42 U.S.C. § 1985(3) with prejudice; (2) dismissed plaintiffs’ claims brought pursuant to 42 U.S.C. § 1983 without prejudice to plaintiffs’ amendment of the complaint within 20 days in accordance with the accompanying opinion; (3) dismissed plaintiffs’ claims brought pursuant to the First, Fourth, Fifth, Eighth and Fourteenth Amendments with prejudice; (4) dismissed plaintiffs’ prayer for injunctive and declaratory relief with prejudice; and (5) dismissed plaintiffs’ pendent state claims without prejudice. In its opinion, reported as Shirey v. Bensalem Township, 501 F.Supp. 1138 (E.D.Pa. 1980), the court explained its decision as follows: (1) plaintiffs failed to and could not plead the requisite class-based discriminatory animus which the district court interpreted as required in a § 1985(3) action by the decisions in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), and Carchman v. Korman Corp., 594 F.2d 354 (3d Cir.), cert. denied, 444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133 (1979); (2) the § 1983 claims were deficient as pleaded because the complaint failed to identify specific acts of specific defendants and failed to allege an adequate basis for assertion of liability against the municipalities and the police chiefs, but plaintiffs were given leave to file an amended § 1983 complaint; (3) the claims premised directly on the Consti tution were redundant because § 1983 provides an effective statutory remedy for the claims pleaded; and (4) in considering plaintiffs’ challenge to Pennsylvania’s disorderly conduct statute facially and as applied, the court, relying on the anti-injunction statute, 28 U.S.C. § 2283, and the principles enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), stated that it would deny the injunctive and declaratory relief requested by those plaintiffs “currently being prosecuted for disorderly conduct because they have failed to demonstrate any of the exceptional circumstances which would warrant this Court’s intervention in a state criminal prosecution,” 501 F.Supp. at 1145; further, the court stated that"
},
{
"docid": "15106583",
"title": "",
"text": "was pending in state court. The district court correctly determined that the Anti-Injunction Act is inapplicable when the United States is the federal plaintiff, e. g., Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957), and defendants do not challenge this determination on appeal. Even though the action was not barred by the Anti-Injunction Act, the court deemed abstention appropriate under the facts of the case. The district court rested its decision to abstain on the principles enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its progeny, see, e. g., Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). These cases teach that abstention is appropriate when “absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings, state nuisance proceedings antecedent to a criminal prosecution, ... or collection of state taxes .. . . ” Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 816, 96 S.Ct. 1236, 1245, 47 L.Ed.2d 483 (1976) (citations omitted). On appeal the State adopts and urges the reasoning of the district court. On the other hand, the United States urges that abstention is always inappropriate when the United States is seeking to assert a superior federal interest. Alternatively, the United States argues that the facts of this case fall within an exception to Younger and thus abstention is inappropriate. We agree with the United States that abstention is inappropriate when, as here, the United States is seeking to assert a federal interest against a state interest. We also agree with the alternative contention of the United States. It is abundantly clear that this action is not barred by the Anti-Injunction Act. See, e. g., Leiter Minerals, Inc. v. United States, supra, 352 U.S. at 225-26, 77 S.Ct. at 290-91. The United States urges that, for the same policy reasons that support the exception of the United"
},
{
"docid": "19849231",
"title": "",
"text": "grown out of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Younger doctrine, which prohibits the federal courts from enjoining a pending state criminal action or issuing a declaratory judgment that will interfere with the state action, has been extended to civil cases in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482, reh. denied, 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); and their progeny. In Huffman the lessee of a theater, which had been ordered closed under a state nuisance statute because obscene films had been shown at the theater, brought an action for declaratory and injunctive relief challenging the statute. The Supreme Court held that the district court should not have entertained an action to enjoin the state court judgment prior to exhaustion of state appellate remedies unless early intervention was justified because the state proceeding was conducted with an intent to harass or in bad faith or the challenged statute was flagrantly and patently unconstitutional. In Trainor the state initiated proceedings in state court to regain fraudulently obtained welfare benefits and attached the defendants’ credit union account. The defendants commenced a federal action challenging the attachment statute’s constitutionality. The Supreme Court held that considerations of equity, comity, and federalism under the Younger doctrine required the federal court to dismiss the federal action. More recently, the Supreme Court held that a federal court should have abstained from interfering with the state’s ongoing disciplinary proceedings against an attorney. Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Explaining the policy behind Younger abstention, the Supreme Court has stated: Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny espouse a strong federal policy against federal court interference with pending state judicial proceedings absent extraordinary circumstances. The policies underlying Younger abstention have been frequently reiterated by this Court. The notion of “comity” includes “a proper respect for state"
},
{
"docid": "19849230",
"title": "",
"text": "state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern. Colorado River Water Conservation District, 424 U.S. at 814-15, 96 S.Ct. at 1244-45. The present case involves the constitutionality of an uninterpreted state statute which is part of the state’s extensive regulatory scheme to monitor and control landfill operations, garbage and hazardous waste disposal, and pollution in general. This is an area of strong public interest which has traditionally been left to the states. Moreover, the state in its sovereign capacity is involved here as a party, and the state court’s decision overseeing the closure of plaintiffs’ landfill is implicated. The concern for friction between the federal courts and the state is particularly strong under these circumstances. Considerations of federalism and comity dictate that this court abstain to avoid interfering in the state’s complex environmental regulatory system. YOUNGER ABSTENTION The third type of abstention has grown out of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Younger doctrine, which prohibits the federal courts from enjoining a pending state criminal action or issuing a declaratory judgment that will interfere with the state action, has been extended to civil cases in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482, reh. denied, 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); and their progeny. In Huffman the lessee of a theater, which had been ordered closed under a state nuisance statute because obscene films had been shown at the theater, brought an action for declaratory and injunctive relief challenging the statute. The Supreme Court held that the district court should not have entertained an action to enjoin the state court judgment prior to exhaustion of state appellate remedies unless early intervention was justified because the state proceeding was conducted with an intent to harass or in bad faith"
},
{
"docid": "8781754",
"title": "",
"text": "COFFIN, Chief Judge. Three plaintiffs, Raul R. Ramos, Salvador Torres, and Victoriano Rodriguez Diaz, brought an action for injunctive and declaratory relief against electoral officials of Holyoke, Westfield, and Springfield, Massachusetts on the grounds that the jury lists for the Hampden County Superior Court were compiled through an unconstitutional selection process. Specifically they contend that persons with Hispanic surnames, persons not registered to vote, and persons exempt from serving on a jury are all systematically excluded from the jury rolls. Two of the plaintiffs at the time of suit had criminal charges pending against them in the Hampden County Superior Court; the third, Rodriguez Diaz, was a plaintiff in a civil suit docketed in the same court and had requested a jury trial in that action. The district court dismissed the action of all three plaintiffs because of federalism and comity concerns. Plaintiffs appeal that ruling. We have no difficulty in affirming the district court as to the claims of the two plaintiffs who are also criminal defendants. The doctrine of equitable restraint established by the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), makes it clear that in the absence of allegations of bad faith, harassment, or extraordinary circumstances, a federal court may not exercise jurisdiction in suits for relief that would interfere with pending state criminal proceedings. The right of the third plaintiff, Rodriguez Diaz, to go forward in federal court raises more complicated problems and cannot be so easily decided. The Supreme Court has in a few select circumstances involving civil suits brought by the state against private individuals applied the Younger doctrine of equitable restraint to civil proceedings. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). However, it has not done so in a suit by a private litigant. The district court"
},
{
"docid": "23645779",
"title": "",
"text": "action is provided by one of the substantive sections of the Civil Rights Act. Ellis attempts to state a cause of action under two substantive sections of the Civil Rights Act. The district court correctly concluded that he has failed to do so. 42 U.S.C. § 1985(3) provides a federal cause of action for conspiracy to deprive the plaintiff of civil rights only where the plaintiff makes specific allegations of “class-based discriminatory animus.” Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971). Despite appellant’s having been afforded an opportunity to amend, his complaint remains barren of any such allegation. Appellant has also failed to state a cause of action under 42 U.S.C. § 1983. Despite appellant’s sweeping assertions of conspiracy and bad faith on the part of all involved, he has failed to allege facts which would permit the court to conclude that these assertions had substantive validity. The essence of appellant’s complaint is simply that he has litigated and lost; this is not sufficient to demonstrate a conspiracy to deprive appellant of his civil rights. See Campo v. Neimeyer, 182 F.2d 115, 118 (7th Cir. 1950). Having litigated and lost the foreclosure action in state court, appellant is not entitled to federal relitigation under the ambit of 42 U.S.C. § 1983. The district court having properly dismissed appellant’s action for failure to state a claim, we need not consider whether the grant of summary judgment was also proper. Attorneys’ Fees The district court concluded that appellant has brought suit “in bad faith and vexatiously” and awarded appellees attorneys’ fees. It is “unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1972) (citations omitted). The Supreme Court has recently concluded that attorneys’ fees may be awarded to a prevailing defendant in an action brought under the Civil Rights Act of 1964 without a showing of actual bad faith where the action"
},
{
"docid": "23083180",
"title": "",
"text": "122 L.Ed.2d 662 (1993). . The defendants argue the plaintiffs may not raise this issue on appeal because they did not raise it before the district court. The plaintiffs' complaint alleged Chavez \"was acting under col- or of law” at the time he molested Bridget Jojola, and the district court dismissed the plaintiffs’ claims against Chavez on that ground. While inartfully argued to the district court, we believe the plaintiffs did properly raise this issue for the district court's consideration. . Neither the civil rights statutes nor the Fourteenth Amendment are a license to the federal judiciary to displace state law through the creation of a body of general federal tort law. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160-61, 47 L.Ed.2d 405 (1976) (Fourteenth Amendment); Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971) (civil rights statute). .\"[I]n § 1983 actions the statutory requirement of action 'under color of' state law is just as broad as the Fourteenth Amendment's 'state action' requirement.” Hafer v. Melo, 502 U.S. 21, 28, 112 S.Ct. 358, 363, 116 L.Ed.2d 301 (1991) (quoting Lugar, 457 U.S. at 929, 102 S.Ct. at 2749); see also West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988) (citing cases). Therefore, we look to decisional law interpreting the \"state action” requirement for guidance in deciding whether certain conduct was taken \"under color of state law” for purposes of § 1983. . “[Plurely private acts which are not furthered by any actual or purported state authority are not acts under color of state law.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir.1994). . The only allegations in the complaint relevant to Chavez’s conduct are \"Bridget was accosted by Defendant Chavez,” and \"[d]efendant Chavez forcibly lead [sic] Bridget into- a vacant and dark classroom and thereafter unlawfully touched and applied force to her person, including to the intimate parts of her body, committing the act of criminal sexual penetration.” . In any event, even if these arguments had been set forth"
},
{
"docid": "1794352",
"title": "",
"text": "administrative processes of the District of Columbia.” Dist.Ct.Op. at 8. Federal courts in general have the duty to adjudicate claims brought to them that are within their jurisdiction; there is no general principle that forbids federal courts from “interfering” in the processes of state and local courts when that “interference” is in reality the vindication of federal rights in cases within their jurisdiction. However, based on prin-eiples of equity — and in particular the principle that equity courts will not lightly enjoin criminal prosecutions in other courts, see Douglas v. City of Jeannette, 319 U.S. 157, 162-164, 63 S.Ct. 877, 880-881, 87 L.Ed. 1324 (1943) — the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny restrains federal courts from interfering in ongoing state judicial proceedings. It is presumably this doctrine on which the Dis trict Court was relying in referring to the “principle of comity.” In Younger v. Harris the Supreme Court held that, absent extraordinary circumstances, federal courts may not enjoin an ongoing state criminal proceeding. In subsequent cases this prohibition has been extended to some civil proceedings that are in the nature of enforcement actions. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (civil action to “abate” showing of obscene movies); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (civil contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (state action to recover welfare payments); Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (state action to gain custody of abused children). It has also been extended to cases in which the state proceeding was not pending at the time the federal action commenced, but in which the state action did begin before the federal action reached proceedings on the merits of the case. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). However, all valid applications of Younger have in common the principle that “federal equitable intervention is not warranted"
},
{
"docid": "15084513",
"title": "",
"text": "(9th Cir. 1977); Minns v. Paul, 542 F.2d 899 (4th Cir. 1976), cert. denied, 429 U.S. 1102, 97 S.Ct. 1127, 51 L.Ed.2d 552 (1977); Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 93 S.Ct. 3015, 37 L.Ed.2d 1003 (1973). In general, these grants of immunity are based on policy reasons which equate the functions served by public defenders and court-appointed attorneys with those served by prosecutors, given absolute immunity from § 1983 suits in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Whichever approach is taken, however, the plaintiff has no cause of action under 42 U.S.C. § 1983 or a similar analysis of general constitutional claims, and Judge Blumenfeld was correct in dismissing the complaint as to those grounds. The district court was also correct in finding no legitimate claim under 42 U.S.C. § 1985(2) or (3), since no facts were pleaded to show any racial or class biased action. See Harris v. Ward, supra, 418 F.Supp. at 662; Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976), citing Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). Though § 1985 is framed so as not to require action under color of law in the same manner as § 1983, Housand’s allegations are so vague and conclusory as to render his claim under this section insufficient. Since there was no basis, then, for a claim under the Civil Rights Act or the Constitution, the district court was correct in dismissing Housand’s complaint on those grounds. There is, however, another ground upon which federal jurisdiction may be based and which was not considered by the district court. In his complaint, Housand lists 28 U.S.C. § 1332, dealing with diversity, as one of the bases for federal jurisdiction over his case. Though he does not make clear in his pleadings on what facts his diversity claim is based, pro se papers should be read liberally, Haines v. Kerner, 404 U.S. 519, 92 S.Ct."
},
{
"docid": "4120102",
"title": "",
"text": "argument can be made here, however. Defendants concede that no ruling has been rendered by any Northern District judge that would predictably control the decision of this case. Under the circumstances, plaintiffs appear to be proceeding in this district for legitimate tactical considerations, and not for the purpose of harassing defendants. No substantial injustice is caused by plaintiffs’ choice. II. ABSTENTION Defendants also seek dismissal of plaintiffs’ complaint on the theory that this court should abstain. Defendants note that plaintiffs have brought two separate cases in state court challenging the Director’s determination, but have carefully refrained from raising or pursuing their constitutional claims in the state actions. They argue that, since plaintiffs had the opportunity to present their federal claims in state court, plaintiffs should be precluded from doing so here. “Abstention from the exercise of federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). At the time this action was brought, it appeared to fall into none of the categories in which the Supreme Court has indicated that federal court abstention is appropriate. Id. at 813-20, 96 S.Ct. 1236. See generally, 17 Wright, Miller & Cooper, Federal Practice and Procedure § 4241 (1978). Defendants initially relied on the principles of federal judicial restraint established by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1941), and its progeny involving civil litigation. See, e. g., Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1978); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). But these principles are inapplicable here. Younger problems arise when the federal plaintiff is a defendant in a state judicial proceeding in which the state or a private litigant has sued to enforce an important state interest. The purpose of the federal suit is to vindicate a constitutional right by either enjoining the state judicial proceeding or by obtaining declaratory relief which effectively moots"
},
{
"docid": "7319516",
"title": "",
"text": "S.Ct. 693, 98 L.Ed. 884 (1954)). Therefore, as the complaint fails to present a federal question or any basis for diversity jurisdiction under 28 U.S.C. § 1332, the complaint may be dismissed for lack of subject matter jurisdiction on these bases alone. However, the Court is mindful that Plaintiff is proceeding pro se and has thus construed his claims liberally, as it must do with pro se litigants. See Kim v. United States, 618 F.Supp.2d 31, 37 (D.D.C.2009), rev’d on other grounds, 632 F.3d 713, 717 (D.C.Cir.2011). Even if the Court were to construe Plaintiffs claims as being brought under the Fifth Amendment, the Court still lacks jurisdiction over Plaintiffs claims. In Younger v. Harris, the Supreme Court ruled that absent extraordinary circumstances, “a federal court should not enjoin a pending state proceeding (including an administrative proceeding) that is judicial in nature and involves state interests.” 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Dist. Properties Associates v. Dist. of Columbia, 743 F.2d 21, 28 (D.C.Cir.1984). The District of Columbia is regarded as a state for purposes of the Younger abstention doctrine. JMM Corp. v. Dist. of Columbia, 378 F.3d 1117, 1125 (D.C.Cir.2004). Younger precludes federal jurisdiction where there are ongoing state proceedings that are judicial in nature, implicate important state interests, and “afford an adequate opportunity in which to raise the federal claims.” Bridges v. Kelly, 84 F.3d 470, 476 (D.C.Cir.1996); Delaney v. Dist. of Columbia, 659 F.Supp.2d 185, 194 (D.D.C.2009). Extraordinary circumstances that may warrant equitable relief nonetheless include cases where the state action was brought in bad faith or to harass the plaintiff or where a state statute is flagrantly unconstitutional. JMM Corp., 378 F.3d at 1127 (citing Trainor v. Hernandez, 431 U.S. 434, 446-47, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977)). This suit meets the three criteria for Younger abstention. First, Plaintiff is subject to an ongoing child support order, the monitoring of which is left to the courts of the District of Columbia. He is therefore party to “an open case that does not terminate until the child support order is finally"
},
{
"docid": "8781755",
"title": "",
"text": "the Supreme Court in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), makes it clear that in the absence of allegations of bad faith, harassment, or extraordinary circumstances, a federal court may not exercise jurisdiction in suits for relief that would interfere with pending state criminal proceedings. The right of the third plaintiff, Rodriguez Diaz, to go forward in federal court raises more complicated problems and cannot be so easily decided. The Supreme Court has in a few select circumstances involving civil suits brought by the state against private individuals applied the Younger doctrine of equitable restraint to civil proceedings. Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). However, it has not done so in a suit by a private litigant. The district court in the present case correctly recognized the inapplicability of Younger to such suits. The court cited our holding in Puerto Rico International Airlines, Inc. v. Silva Recio, 520 F.2d 1342 (1st Cir. 1975), that the test for determining whether or not to provide equitable relief to a private litigant involved in a state civil proceeding required “an assessment of the countervailing interests of the parties” based on “normal equitable principles antedating Younger.” Id. at 1345. In applying this standard to the facts alleged in the complaint before it, the district court concluded, “In this case, the Court finds nothing to justify an exercise of its equitable discretion which might impede or embarrass the courts of the Commonwealth. Plaintiffs have alleged no facts which might support a finding that they are threatened with irreparable harm. Moreover, the Court is convinced that plaintiffs’ remedies in the trial and appellate courts of Massachusetts are adequate. The Court, therefore, will refuse to exercise its equity jurisdiction over the claims of plaintiff Diaz and dismisses those claims.” Had plaintiffs sought"
},
{
"docid": "22903918",
"title": "",
"text": "Manhattan Bank, N.A., 558 F.2d 680 (2d Cir. 1977). “[I]t was never a doctrine of equity that a federal court should exercise its judicial discretion to dismiss a suit merely because a State court could entertain it.” Colorado River, supra, 424 U.S. at 814-15, 96 S.Ct. at 1244-1245. The effect of applying Burford here might be to forego exercise of our concurrent federal jurisdiction with respect to any claim involving a regulated state insurance company, which would be unthinkable. Nor do I agree with the majority that the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), warrants abstention here. We firmly rejected an identical proposal in an opinion by Judge Mulligan in the closely analogous case of Marshall v. Chase Manhattan Bank, supra, 558 F.2d at 683-84, which likewise involved the administration of an ERISA plan. Noting that Younger related to a pending state court criminal action, Judge Mulligan stated: “Younger abstention has been recently broadened by considerations of comity and federalism to include federal abstention even where the pending state action is civil in nature but where the state has a clear interest. Thus, in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the state had brought an action to enforce a nuisance statute. Since the state was a party to the proceeding and the nuisance statute was akin to a criminal enactment, federal abstention was decreed. In Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), Huffman was extended to require federal abstention where the federal plaintiffs had previously been incarcerated by the state in contempt proceedings. The interest of the state in vindicating its civil enforcement proceedings required federal abstention on comity grounds. Similarly in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), where a state agency had brought a civil action against the federal plaintiffs in a state court to recover welfare payments allegedly fraudulently obtained, the Supreme Court held that the federal court should abstain under Huffman principles. [Footnote omitted] “This case does"
},
{
"docid": "22927347",
"title": "",
"text": "as an express congressional authorization to intervene in state court proceedings in order to protect federal rights. See also Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1977); Trainor v. Hernandez, 431 U.S. 434, 444-45 n.8, 97 S.Ct. 1911, 1918-19, 52 L.Ed.2d 486 (1977); Joiner v. City of Dallas, Texas, 5 Cir., 1974, 488 F.2d 519, 520; American Radio Assoc. v. Mobile Steamship Assoc., Inc., 5 Cir., 1973, 483 F.2d 1, 6; Palaio v. McAuliffe, 5 Cir., 1972, 466 F.2d 1230, 1232 n.7. As the district court’s first order was entered pursuant to a claim under section 1983 involving the deprivation of constitutional rights, section 2283 did not prohibit the issuance of this injunction. Appellants argue that, even if section 2283 creates no absolute bar to entry of an injunction in this case, the district court should have abstained from exercising its jurisdiction under the doctrine articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. The applicability of the Younger abstention doctrine requires consideration entirely apart from the determination that section 2283 does not prohibit issuance of an injunction. See Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705 (1972); Trainor v. Hernandez, 431 U.S. 434, 444-45 n.8, 97 S.Ct. 1911, 1918-19, 52 L.Ed.2d 486 (1977). Neither the Supreme Court nor this court has made the Younger doctrine generally applicable to all civil litigation and we decline the invitation to do so in this case. In Younger, the Supreme Court held that a federal district court ought not enjoin a pending state criminal prosecution absent exceptional circumstances such as a prosecution brought in bad faith or for harassment, a prosecution under a statute flagrantly unconstitutional in all respects or other possibly extraordinary circumstances. Younger v. Harris, supra, 401 U.S. at 53-54, 91 S.Ct. at 755. This doctrine rests on the traditional reluctance of federal courts of equity to intervene in state criminal prosecutions and on the considerations of comity and federalism that must guide relations between state and federal courts."
},
{
"docid": "4258364",
"title": "",
"text": "1428, 1433, 51 L.Ed.2d 752 (1977) (citing Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). And a district court should not shirk its obligation to exercise jurisdiction where a case may properly be adjudicated. See Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821). 1. Younger Abstention In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971), the Supreme Court held that the federal district court could not intervene in an ongoing criminal proceeding in state court and noted that the “normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions”. Younger applied the abstention doctrine to a state criminal proceeding, but the doctrine has since been expanded to apply to quasi-criminal, civil, and administrative proceedings. E.g., Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Younger policies fully applicable to noncriminal judicial proceeding when important state interests are involved); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil enforcement action); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (nuisance action). Defendant argues that I should abstain, because to enjoin the Chief Judge of the Nineteenth Judicial Circuit from enforcing the Circuit’s local rule would be in direct violation of the precepts embodied in the Younger decision and “would represent a gross intrusion into the functions of Illinois state courts.” I disagree. Plaintiffs’ request that I examine the constitutionality of a rule promulgated by the state judges does not implicate Younger. Younger is confined to cases in which the federal plaintiff had engaged in conduct actually or arguably in violation of state law, thereby exposing himself to an enforcement proceeding in state court which, once commenced, must be allowed to continue uninterrupted to conclusion. Allegheny Corp. v. Hasse, 896 F.2d 1046, 1053 (7th Cir.1990). Plaintiffs contend that there are ongoing proceedings here, namely the case involving Jane Doe who is accused of DUI violations. But I"
},
{
"docid": "12635219",
"title": "",
"text": "of his state court conviction is currently still being adjudicated by the state courts. Thus, it is abundantly clear that this action should be dismissed based on the reasoning of Matos v. Quealy, supra, and Younger v. Harris, cited therein. Conclusion For the reasons set forth above, this action is dismissed as to all defendants. This dismissal is without prejudice to plaintiff’s right to petition the federal district court for. a writ of habeas corpus pursuant to 28 U.S.C. § 2254, after exhausting available state remedies. SO ORDERED. . The allegations in 83 Civ. 5166 arise from the same state conviction discussed herein. The claims in 83 Civ. 3869 concern a state conviction on a different charge. . The only claim asserted by plaintiff not specifically challenging the fact of his conviction is his allegation of defamation on the part of defendant Hays, a reporter for the Daily News, who allegedly wrote an article entitled, \"Lottery Ticket Killer Gets Maximum Term,” which appeared in the newspaper’s January 6, 1983 edition. Hays’ counsel correctly asserts that the reporter's alleged action is not actionable under § 1983 due to plaintiff’s failure to allege state action, and because injury to reputation, even . by a state actor, is not actionable under this section. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Similarly, the alleged conduct of Hays is not actionable under § 1985(3). See infra note 3. . To the same effect, see Howard v. Koch, 575 F.Supp. 1299, 1304 (E.D.N.Y.1982) (Costantino, J.); Flaherty v. Nadjari, 548 F.Supp. 1127, 1129 (E.D.N.Y.1982) (McLaughlin, J.). . Plaintiff's § 1983(3) claims must also be dismissed. This is so because plaintiff has failed to allege any racial or class-based discriminatory animus behind defendants’ actions. Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971)."
},
{
"docid": "12429682",
"title": "",
"text": "to the Sinclair case, and the Rooker-Feldman doctrine does not bar this Court’s exercise of jurisdiction. B. Younger Abstention 1. Standard of Review In Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court could not enjoin state criminal proceedings enforcing state law on the ground that the underlying state law was unconstitutional. See also Samuels v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (holding that Younger applies to declaratory judgments). The Court soon expanded the Younger holding to prohibit federal injunctions of certain civil proceedings which were quasi-criminal or in aid of state courts’ authority to enforce their orders. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to state nuisance proceedings); Juidice v. Vail, 430 U.S. 327, 334-36, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying Younger to contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444-46, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (applying Younger to state civil enforcement proceedings to recover fraudulently-obtained welfare payments). Subsequently, in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Court ruled that district courts should only abstain under Younger if: (1) there are ongoing state proceedings of a judicial nature; (2) these proceedings implicate important state interests; and (3) the state proceedings offer adequate opportunity to raise federal claims. See also Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 408 (3d Cir.2005) (applying the three-prong test of Middlesex County). In Pennzoil v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), however, the Court cautioned that it did “not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather ... we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’ ” Id. at 14 n. 12, 107 S.Ct. 1519 (citation omitted). Amplifying these limitations,"
},
{
"docid": "12429681",
"title": "",
"text": "five relationships that can bind “[a] person who is not a party to an action but who is represented by a party....” Restatement (Second) of Judgments § 41 (1982). A person is represented by a party who is: (a) The trustee of an estate or interest of which the person is a beneficiary; or (b) Invested by the person with authority to represent him in an action; or (c) The executor, administrator, guardian, conservator, or similar fiduciary manager of an interest of which the person is a beneficiary; or (d) An official or agency invested by law with authority to represent the person’s interests; or (e) The representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member. Id. None of these relationships is present in the instant case. While the Sinclair plaintiffs purported to represent all others similarly situated, they did not seek nor receive certification as class representatives by the state court. Thus, instant plaintiffs were not parties nor privies to the Sinclair case, and the Rooker-Feldman doctrine does not bar this Court’s exercise of jurisdiction. B. Younger Abstention 1. Standard of Review In Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court could not enjoin state criminal proceedings enforcing state law on the ground that the underlying state law was unconstitutional. See also Samuels v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (holding that Younger applies to declaratory judgments). The Court soon expanded the Younger holding to prohibit federal injunctions of certain civil proceedings which were quasi-criminal or in aid of state courts’ authority to enforce their orders. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to state nuisance proceedings); Juidice v. Vail, 430 U.S. 327, 334-36, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying Younger to contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444-46, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (applying Younger"
},
{
"docid": "14989224",
"title": "",
"text": "his prosecution.” Stewart v. Abraham, 275 F.3d 220, 225 (3d Cir. 2001). The Third Circuit also cited Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), in which the Supreme Court “distinguished Gerstein from the case before it” on the basis that, in Gerstein, “the action was not barred by Younger because the injunction was not addressed to a state proceeding and therefore would not interfere with the criminal prosecutions themselves. The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits.” Stewart, 275 F.3d at 226 (quoting Moore, 442 U.S. at 431, 99 S.Ct. 2371) (internal quotations omitted). Younger abstention has been expanded over the years from its original context in criminal proceedings to apply in other types of proceedings. See Huffman, 420 U.S. at 604, 95 S.Ct. 1200 (abstention under Younger appropriate in state civil proceeding that is “both in aid of and closely related to criminal statutes” and where state’s interest “is likely to be every bit as great as it would be ... [in] a criminal proceeding”); Trainor v. Hernandez, 431 U.S. 434, 441, 444, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (“[T]he principles of Younger and Huffman are broad enough to apply to interference by a federal court with an ongoing civil enforcement action such as this [for the return of money obtained via alleged welfare fraud], brought by the State in its sovereign capacity!,]” for reasons of federalism and comity); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 10-14, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (abstention under Younger appropriate with, regard- to state civil proceedings that seek to enforce the orders and judgments of the state’s courts).. In response to this, the Supreme Court has recently described at greater length the limited circumstances when it is appropriate for a lower court to invoke Younger abstention: In the main, federal courts are obliged to decide cases within the scope of federal jurisdiction. Abstention is not in order simply because a pending state-court proceeding involves the same subject matter.... Younger exemplifies one class of cases"
}
]
|
582786 | of electrician’s helper, the plaintiff will not only be entitled to resume his former employment, but, under the rules and the seniority rights acknowledged by the defendant, he will be reinstated, if he so desires, in his old position. The averment that he was arbitrarily ■Jischarged on November 9, 1946 was completely negatived by all of the proof and particularly by the records. 2. The seniority rights of the plaintiff and his experience as an electrician helper did not entitle him ipso facto to be classified as an electrician. The statute invoked would not aid him. The object of the statute was to give him back his old position without prejudice to his seniority rights. REDACTED Sullivan Drydock & Repair Corp., et al., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110. Practically the same contention -was made in the Fish-gold case as here, and both the Court of Appeals as well as the Supreme Court hold adversely to the contention of the plaintiff. Judgment should be for the defendant. | [
{
"docid": "11226146",
"title": "",
"text": "L. HAND, Circuit Judge. Local 13 of the Industrial Union of Marine and Shipbuilding Workers of America appeals from a judgment awarding damages to the plaintiff for his loss of wages because of two lay-offs by his employer, the Sullivan Drydock and Repair Corporation, against which alone the action was brought. The union intervened, and charged itself with the defence; the United States, the Railway Labor Executives Association and the Congress of Industrial Organizations have filed briefs, as amici. The appeal raises only the proper interpretation of subdivision (b) and (c) of § 8 of the Selective Training and Service Act of 1940, as amended in 1944 (§ 308(b) and § 308(c), 50 U.S.C.A. Appendix, which we quote in the margin). The facts as found by the judge were as follows. The plaintiff entered the employ of the Sullivan Drydock and Repair Corporation as a welder, on December 21, 1942, and was steadily employed as such until May 22, 1943, when he was inducted into the Army. He served until July 12, 1944, and was then honorably discharged, and received a certificate of the kind described in § 8(a), 50 .U.S.C.A. Appendix § 308(a). At that time he concededly was, and he has since been, qualified as a first-class welder; and the company restored him to this former position on August 21, 1944, and has never dismissed him. The controversy here at bar arises because on three occasions: Viz., on April 9, April 11, and from May 17 to May 24, inclusive, it refused to give him any work, because there was not enough on those days to occupy all hands. In so refusing it preferred other welders, not veterans, who had a higher shop seniority than the plaintiff: this in accordance with the agreement between the company and the union. The plaintiff’s position is that, as a veteran, § 8(b) and (c) gave him priority over all his fellows except other veterans ; the union’s position is that those sections merely restored him to the same place in the shop hierarchy which he would have had, if he had"
}
]
| [
{
"docid": "6023954",
"title": "",
"text": "occurs due to slackening of work in the plant. Following the provisions of the contract, the company lays off the returned veteran before laying off union officials who, under the contract, have seniority superior to the veteran, but who, in point of service, are junior to him. Has the veteran a claim against his employer for violation of the provisions of the statute? We have, to aid us, two Supreme Court decisions: Fishgold v. Sullivan Drydock & Repair Corp., 1946, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110, and Trailmobile Co. v. Whirls, 67 S.Ct. 982. To . these should be added the very able discussion of the Fishgold case by the Circuit Court of Appeals, 2 Cir., 1946, 154 F.2d 785. Neither case is directly in point. The Fish-gold decision dealt with the question whether the veteran had, by virtue of the statute, acquired a super seniority over all non-veteran employees of the plant. The Trail-mobile case was concerned only with the duration of the veteran’s restored seniority standing. This Court, therefore, must decide the new question as best it can without precedent on which to lean for help. We do have, however, from the majority opinion in the Fishgold case what seems to us a pretty clear statement of the Supreme Court’s view of the purpose and effect of the Act. While we quite realize the danger of pulling a judicial statement out of its context to support a conclusion on a question not directly before the Court, we think the repeated expressions of view in the Fishgold opinion give us something far more than a single casual dictum possibly could. We quote from the opinion therefore upon the question of what the Supreme Court considered the returning veteran’s rights to be with regard to his position in former employment. The Court said: “ * * * he does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” 328"
},
{
"docid": "13960561",
"title": "",
"text": "returning from a period of service if the person meets the Act’s eligibility criteria. Id. at § 4312(f)(4). “Prompt employment” means as soon as practicable under the circumstances of the case. For example, prompt reinstatement after “weekend National Guard duty generally means the next regularly scheduled working day.” However, prompt reinstatement after “several years of active duty may require more time, because [the] employer may have to reassign or give notice to another employee who occupied [the] position.” In construing a precursor to USERRA, the Supreme Court in Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946), invented the “escalator” principle in stating that a returning service member “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Id. at 284-285, 66 S.Ct. 1105. Although Fishgold was mainly a seniority case, the escalator principle applies to the employment position, and rate of pay, as well as the seniority rights to which the returning service member is entitled. Thus, USERRA requires that the service member be reemployed in the escalator job position comparable to the position he would have held had he remained continuously in his civilian employment. 38 U.S.C. § 4313. After service of 90 days or less, the person is entitled to reinstatement in the position of employment in which she or he would have been but for the interruption of employment by uniformed service. Id. at § 4313(a)(1)(A). If the service period was longer than 90 days, the service member is entitled to reemployment in the escalator position, but the employer may also reinstate the member in any position of like seniority status and pay for which he is qualified. 38 U.S.C. § 4313(a)(2)(A). If the service member is unable to qualify for either the escalator position or a comparable position, despite reasonable employer efforts, he is entitled to reemployment in a position that is the nearest approximation to the escalator position. Id. at §"
},
{
"docid": "12327322",
"title": "",
"text": "was entitled to be reinstated as an apprentice, a status which the court concluded he, in effect, enjoyed before entry into the service. With this we cannot agree: The union contract, the relative rates of pay, the seniority rights of an apprentice, all stand together to refute such a conclusion. It is necessary when there is such misapprehension of the evidence and when the decision is so clearly erroneous, that is, against the truth and right of the case, that this court give effect to its own conclusions. From the facts proved, Rosario Delaney was, while employed by Special Service Co., engaged as a laborer and was forbidden by the union contract and by company policy to engage in mechanics’ work, and, further, the position of apprentice then, as at the present time, constituted a higher classification of employment. The law is clear that under the statute, 50 U.S. C.A.Appendix, § 308, the employee is entitled to his old job or an equivalent job but is not entitled to advance to a higher classification, in the absence of some particular agreement of employment, during his service with the Armed Forces. See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110; Raulins v. Memphis Union Station Co., 6 Cir., 168 F.2d 446; and Maloney v. Chicago B. & Q. R. Co., D.C., 72 F.Supp. 124. That Delaney has no legitimate claim to apprentice status is clear. There remains the question relating to his right to employment in a status equivalent to that of the job he left on entry into the service. Delaney, after his timely application of March 5, 1946, would have a right to a job of the same status as he held before, unless such re-employment would be impossible or unreasonable because of a change in the company’s circumstances. 50 U.S.C.A.Appendix, § 308. An extensive examination of the record convinces us that such a change did not take place. Moreover, on the facts before us, we are of the opinion that the reason given Delaney for failure to"
},
{
"docid": "3917953",
"title": "",
"text": "plaintiff entered military Service and under the above quoted section of the Act plaintiff is precluded from receiving severance pay while in the military service. Dwyer v. Crosby Company (C.A. 2, 1948), 167 F.2d 567, 569. Compare: Alvado v. General Motors Company (C.A. 2, 1955), 229 F.2d 408. The next question for consideration is whether plaintiff is entitled to severance pay for the period following his restoration to the recall list for recall after his return from military service. Defendant asserts that the employee must be restored to active service before he is restored to a position within the meaning of the Act. We agree with the District Judge in concluding that active service was not necessary to entitle plaintiff to severance pay. In the case of Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, the Supreme Court stated: “ * * * Moreover, a veteran on his return is entitled to his old ‘position’ or its equivalent even though at the time of his application the plant is closed down, say for retooling, and no work is available, unless of course the private employer’s ‘circumstances have so changed as to make it impossible or unreasonable’ to restore him. § 8 (b) (B) [now § 9(b) (B)]. He is entitled to be recalled to work in accordance with his seniority. His ‘position’ exists though no work is then available. The slackening of work which causes him to be laid off by operation of a seniority system is neither a removal or dismissal or discharge from the ‘position’ in any normal sense.” 328 U.S. p. 288, 66 S.Ct. pp. 1112-1113, 90 L.Ed. 1230. Section 9(b), subsection (B) (i) reads in part: «•«•*** “(B) if such position was in the employ of a private employer, such person shall— “(i) if still qualified to perform the duties of such position, be restored by such employer or his successor in interest to such position or to a position of like seniority, status, and pay; or •Jr if 4C* * •Jfr unless the employer’s circumstances have so"
},
{
"docid": "19324943",
"title": "",
"text": "regard to degree of proficiency. Since appellants Spearmon, Rhodes and Holmes, by the terms of the contract of July 1st, had to be and were qualified as mechanics before advancement to that position, and since they were advanced to that position before induction and were serving therein at the time of induction, they were entitled to acquire seniority as mechanics. In the language of the Supreme Court in Fishgold v. Sullivan Drydock & Repair Corporation, 328 U.S., loc. cit. 284, 66 S.Ct. loc. cit. 1110, 90 L.Ed. 1230, 167 A.L.R. 110, “[they do] not step back on the seniority escalator at the point [they] stepped off. [They] step [s] back on at the precise point [they] would have occupied had [they] kept [their] position continuously during the war.” It is conceded that the demotion had the legal effect of a discharge within one year of these appellants’ reinstatement. The judgment is therefore reversed and remanded as to Spearmon, Rhodes and Holmes with directions to enter judgment for them in accordance with the prayer of their petition. There has been no claim for relief beyond the one-year period fixed by the Act. And since appellants’ right under the Act to benefits beyond that period has not been briefed or argued we express no opinion on that question. See Trailmobile v. Whirls, 331 U.S. 40, 67 S.Ct. 982, supra. The judgment to be entered should therefore be limited to such benefits as these appellants are entitled to in accord with the conclusions hereinabove stated, to the extent such benefits would accrue within the period of one year fixed by the Act. As to Delozier, the judgment is affirmed. Although it is stipulated that had he remained in the position of helper until November 2, 1942, he would on that date have been advanced to the position of me chanic, it is a conceded fact that he occupied the position of helper at the time of his induction. The seniority which accrued to him during the time he served with the armed forces was seniority in the position of helper and not as"
},
{
"docid": "2258454",
"title": "",
"text": "unless the Management and the Committee agree that the senior bidders are not qualified. * * * “(2) Employees desiring to avail themselves of this rule will make application in writing to the official in charge and copy of application will be given to Local Committeeman. “(3) An employe exercising his seniority or assigned under Section 1 of this Rule, if, after fair trial, fails to qualify, may return to his former position with full seniority rights. Employes exercising their seniority rights under this Rule, will do so without expense to the Company.” The agreement provided for separate seniority lists for each craft and sub-division thereof, and classified members of the Electrical Workers craft into four subdivisions, namely, electricians, motor attendants, apprentices and electrician-helpers. The District Judge held that under the Collective Bargaining Agreement the electricians had seniority rights among themselves; that the electrician-helpers had seniority rights among themselves; that the seniority system for electricians was wholly separate from that applicable to electrician-helpers, and that the appellants at the time when they left their positions as electrician-helpers had no fixed right to promotion from the position of electrician-helper to the position of electrician by virtue of any custom or by virtue of any contract, written or otherwise; that while the electrician-helper, oldest in point of service, was usually given preference in filling vacancies on the electrician roster, other things, particularly qualifications, required consideration; and that while the Act guaranteed them their seniority in the subdivision of electrical workers, it did not guarantee them promotion to vacancies occurring in the sub-division of electricians. We agree with that ruling. The Collective Bargaining Agreement does not make promotion from electrician-helper to electrician in case of vacancy an automatic one. It plainly provides application on the part of the electrician-helper, proof of his qualification for the promotion by actual trial, and for a return to his former position as electrician-helper with full seniority rights if he fails to qualify after a reasonable trial. Although there is a strong probability that the appellants would have applied for promotion to the vacancies and would have been"
},
{
"docid": "21035579",
"title": "",
"text": "the plaintiff is of the opinion that such position should have been available to him. 1. The evidence was beyond controversy that when plaintiff returned from the service he was reinstated in accordance with his seniority rights and that he continued in his position until laid off for good and sufficient reason, that is, a reduction in force, and that from that time until the present his name has been carried on the seniority list and that, upon the restoration of the position of electrician’s helper, the plaintiff will not only be entitled to resume his former employment, but, under the rules and the seniority rights acknowledged by the defendant, he will be reinstated, if he so desires, in his old position. The averment that he was arbitrarily ■Jischarged on November 9, 1946 was completely negatived by all of the proof and particularly by the records. 2. The seniority rights of the plaintiff and his experience as an electrician helper did not entitle him ipso facto to be classified as an electrician. The statute invoked would not aid him. The object of the statute was to give him back his old position without prejudice to his seniority rights. Fishgold v. Sullivan Drydock & Repair Corp., 2 Cir., 154 F.2d 785, Fishgold v. Sullivan Drydock & Repair Corp., et al., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110. Practically the same contention -was made in the Fish-gold case as here, and both the Court of Appeals as well as the Supreme Court hold adversely to the contention of the plaintiff. Judgment should be for the defendant."
},
{
"docid": "19324938",
"title": "",
"text": "were entitled to have the time they spent with the armed forces applied toward seniority in the mechanic’s classification or merely as helpers. Much stress is placed by appellees upon the contractual provision contained in paragraph 8 of the July 1 agreement, heretofore quoted, that seniority as a mechanic should not begin until three years’ service had been accumulated in the position of mechanic. But a contractual provision denying an ex-serviceman seniority to which he is entitled under the Selective Training and Service Act is invalid. Fishgold v. Sullivan Drydock & Repair Corporation et al., 328 U.S..275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110; Trailmobile v. Whirls, 331 U.S. 40, 67 S.Ct. 982. The contract therefore cannot deprive appellants of their seniority as mechanics if in fact they were mechanics at the time of their induction. Appellees contend that the contract required three years’ service on the job as a prerequisite to the attainment of the degree of proficiency which would entitle them to classification as mechanics. If proficiency was really the test, no Act of Congress could supply it and these three appellants would have beén helpers when they were inducted and would still be “helpers” when they were reinstated. But was proficiency the test contemplated by the contract? Or was the qualification for permanent classification as a mechanic attainable from the lapse of time, or in other words, seniority? Paragraph 1 of the July 1st agreement does not contain any requirement for “qualification”. As heretofore noted, it simply provides that helpers and apprentices may be advanced to mechanics when others who have already attained that classification, nomenclatured as “qualified mechanics”, are not available. Paragraph 2 provides the order of seniority for advancement to mechanics from the various inferior classifications. Paragraph 3 merely emphasizes the importance of seniority in advancement by providing that advancements to service as mechanics should be with due regard to “order of seniority” and “qualification for advancement in their respective classifications”. Paragraphs 5, 6 and 7 all deal with seniority as such. In paragraphs 6 and 7 appears the first reference to a"
},
{
"docid": "21035576",
"title": "",
"text": "loss of wages from May 10, 1946, to the date of judgment, etc. It is charged in substance that the plaintiff was employed by the defendant up to January 1, 1942, at which time he entered the armed forces of the United States. He remained in the armed service until honorably discharged on January 18, 1946. On March 13, 1946, the plaintiff reentered his employment as his position was made available to him in compliance with the provisions of the law. On May 10, 1946, plaintiff was “layed off” and it is alleged by him that this was done without just cause or reason. It is further alleged that it was done arbitrarily and wrongfully and that it culminated on November 9; 1946, when “plaintiff was informed by defendant that his lay-off was permanent.” ' The defendant by its amended answer denies these averments. The defendant admits that the plaintiff was inducted into the armed services and that when so inducted plaintiff held a position of electrician helper at its shops or place of business at North Kansas City, Missouri. It says, however, that he was restored to his employment upon his return from the service on March 13, 1946, and that on May 10, 1946, “plaintiff was laid off because of reduction in force, and no other electrician helper has been employed at said point by 'defendant since May 10, 1946.” Moreover, it is alleged by the defendant, that the plaintiff’s seniority rights have been and are now being respected and that if, and when, an electrician helper is again needed, the position is and will be available to the plaintiff. The facts are scarcely in dispute. The controversy is on the interpretation of such facts. Only one electrician helper was and has been employed in the North Kansas City Yards of the defendant. Plaintiff was laid off on May 10, 1946, because of a claimed necessary reduction in force. There was no controversy but that the defendant was justified because of economic conditions in thus reducing its force at the yards mentioned. Others were laid off at the"
},
{
"docid": "6780151",
"title": "",
"text": "reversed a district court decision granting summary judgment to an employer because the bargaining agreement gave the employer discretion in promotion since the plaintiff had submitted affidavits to the effect that despite the language of the agreement promotions were made automatically in practice. In the case before us there is uncontro-verted evidence that Power was employed as meter repairman’s helper November 30, 1956, that in July, 1957, he advanced to meter shop helper, and that his performance from December 30, 1956, through February, 1957, was satisfactory. There is no evidence that thereafter his service had not continued satisfactorily before he left employment for military service January 2, 1958. And it is stipulated that on several occasions in 1957 he performed “upgraded work” normally performed by meter repairmen. The record shows that the twenty men who were promoted to meter repairmen during Power’s absence advanced “in order of seniority.” Nothing in the record indicates that these men had greater ability than Power, nor that any tests were given them that Power could not have successfully met. We conclude that despite the wording of the bargaining agreement the finding that “in actual practice” promotion was virtually automatic and was not the result of Northern’s discretion is not clearly erroneous. The purpose of the Act is to protect the veteran, not to penalize him. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284, 66 S.Ct. 1105, 90 L.Ed. 1230 (1945). He is to have not only the same seniority he had when he left, but his military service is to be counted as service in the plant so that he does not lose ground. Id. The Supreme Court in Fishgold put it metaphorically: The veteran steps back on the “seniority escalator,” not at the point where he stepped off, but at the “precise point” where he would have been had he kept his position continuously during his military service. The Supreme Court in Fishgold was construing the original provisions of the Act. This principle was reaffirmed in subsequent decisions of the Court in Trailmobile Co., v. Whirls, 331 U.S. 40, 67"
},
{
"docid": "12327323",
"title": "",
"text": "the absence of some particular agreement of employment, during his service with the Armed Forces. See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110; Raulins v. Memphis Union Station Co., 6 Cir., 168 F.2d 446; and Maloney v. Chicago B. & Q. R. Co., D.C., 72 F.Supp. 124. That Delaney has no legitimate claim to apprentice status is clear. There remains the question relating to his right to employment in a status equivalent to that of the job he left on entry into the service. Delaney, after his timely application of March 5, 1946, would have a right to a job of the same status as he held before, unless such re-employment would be impossible or unreasonable because of a change in the company’s circumstances. 50 U.S.C.A.Appendix, § 308. An extensive examination of the record convinces us that such a change did not take place. Moreover, on the facts before us, we are of the opinion that the reason given Delaney for failure to reinstate him was resorted to as an excuse for the company’s failure to hire him. The letter of October 30, 1946, written for Delaney by Major Cox and directed to the defendant company, incorporated Delaney’s claim to the position of apprentice. Had Special Service Co. come forward at that time with an offer to reinstate the plaintiff as laborer, the whole matter would then have terminated. However, such was not the case, as it was not until March 28, 1947, that the defendant made an offer to reinstate Delaney as a laborer, conditioned on liis waiver of claim for back pay. On receipt of this offer, the plaintiff stated again he would accept reinstatement only as an apprentice with back pay at rates paid an apprentice. When it was seen that there would be a delay before trial of this case, the defendant agreed to employ the plaintiff as' a “laborer” pending the trial, without prejudice to his rights. To this he turned a deaf ear. Delaney’s arbitrary stand, we think, relieved the company of"
},
{
"docid": "6023953",
"title": "",
"text": "GOODRICH, Circuit Judge. This litigation presents a new phase of the problem of veterans’ rights under the Selective Training and Service Act of 1940, ‘50 U.S.C.A.Appendix, § 301 et seq., of which the relevant amended portion of section 8 is cited in the margin. The follow ing set of facts will present the question involved. A man is employed by a corporate employer. His employment is interrupted by his call for service in the armed forces. He qualifies and is inducted into the army. During his absence a new contract is negotiated by the employer and the union which is the authorized bargaining agent for employees in the plant. Under the terms of the new agreement, the seniority provisions which existed earlier are modified so that certain union officials become entitled to a higher seniority than anyone else. In course of' time our employee returns from his tour of duty, and is discharged under circumstances which fulfil all the qualifications to give him the benefits of the statute. He resumes his former employment. A lay-off occurs due to slackening of work in the plant. Following the provisions of the contract, the company lays off the returned veteran before laying off union officials who, under the contract, have seniority superior to the veteran, but who, in point of service, are junior to him. Has the veteran a claim against his employer for violation of the provisions of the statute? We have, to aid us, two Supreme Court decisions: Fishgold v. Sullivan Drydock & Repair Corp., 1946, 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110, and Trailmobile Co. v. Whirls, 67 S.Ct. 982. To . these should be added the very able discussion of the Fishgold case by the Circuit Court of Appeals, 2 Cir., 1946, 154 F.2d 785. Neither case is directly in point. The Fish-gold decision dealt with the question whether the veteran had, by virtue of the statute, acquired a super seniority over all non-veteran employees of the plant. The Trail-mobile case was concerned only with the duration of the veteran’s restored seniority standing. This"
},
{
"docid": "19324937",
"title": "",
"text": "Act to protect an employer from the necessity of creating a useless job to give to a former employee merely because there was a transitory temporary need for such a job at one time and the ex-serviceman happened to be occupying it at the time of his induction. The position of mechanic, involved here, had been in existence for many years. It was in existence when the contract was made between the System Federation and the Railroad in 1936 and is mentioned in that contract. It continued in existence from that time (and probably from an even earlier date) up to the present time. It apparently still exists. The supplementary agreement of July 1, 1942, did not abolish it. On the contrary, that agreement explicitly protected those holding seniority in that classification from having upgraded helpers attain any seniority as mechanics for a period of three years. The position was not one which may properly be characterized as “temporary” within the meaning of the Act But the more troublesome question remains as to whether’ appellants were entitled to have the time they spent with the armed forces applied toward seniority in the mechanic’s classification or merely as helpers. Much stress is placed by appellees upon the contractual provision contained in paragraph 8 of the July 1 agreement, heretofore quoted, that seniority as a mechanic should not begin until three years’ service had been accumulated in the position of mechanic. But a contractual provision denying an ex-serviceman seniority to which he is entitled under the Selective Training and Service Act is invalid. Fishgold v. Sullivan Drydock & Repair Corporation et al., 328 U.S..275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110; Trailmobile v. Whirls, 331 U.S. 40, 67 S.Ct. 982. The contract therefore cannot deprive appellants of their seniority as mechanics if in fact they were mechanics at the time of their induction. Appellees contend that the contract required three years’ service on the job as a prerequisite to the attainment of the degree of proficiency which would entitle them to classification as mechanics. If proficiency was really the test,"
},
{
"docid": "19362449",
"title": "",
"text": "before his deferment expired, and on the day when that event took place he was ordered to report for induction. Meanwhile he had no other employment, SO' far as the record discloses. The Railway Company makes the additional contention that the plaintiff may not be legally restored to his old position or to a “position of like seniority, status and pay,” because at the time of his resignation he was a member of the Order of Railway Telegraphers which had a contract with the Railway Company that provides that the seniority rights of a member shall be lost upon resignation, according to the interpretation placed upon the contract by the Union. The answer to this argument is clearly given by the Supreme Court in Fishgold v. Sullivan Drydock & Repair Corporation, 328 U.S. 275, 285, 66 S.Ct. 1105, 1111, 90 L.Ed. 1530, 167 A.L.R. 110, where in considering the seniority rights conferred upon a returned veteran by the statute the court said: “This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. See Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 1231, 87 L. Ed. 1587. And no practice of employers or agreements between employers and unions can cut down the service adjustment benefits which Congress has secured the veteran under the Act. Our problem is to construe the separate provisions of the Act as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits.” (Italics supplied.) The judgment of the District Court will be reversed and the case remanded for further proceedings: Reversed and remanded."
},
{
"docid": "21035577",
"title": "",
"text": "at North Kansas City, Missouri. It says, however, that he was restored to his employment upon his return from the service on March 13, 1946, and that on May 10, 1946, “plaintiff was laid off because of reduction in force, and no other electrician helper has been employed at said point by 'defendant since May 10, 1946.” Moreover, it is alleged by the defendant, that the plaintiff’s seniority rights have been and are now being respected and that if, and when, an electrician helper is again needed, the position is and will be available to the plaintiff. The facts are scarcely in dispute. The controversy is on the interpretation of such facts. Only one electrician helper was and has been employed in the North Kansas City Yards of the defendant. Plaintiff was laid off on May 10, 1946, because of a claimed necessary reduction in force. There was no controversy but that the defendant was justified because of economic conditions in thus reducing its force at the yards mentioned. Others were laid off at the same time. Since said lay-off there has been no occasion, acfcording to the testimony, to restore the position of the electrician’s helper. At one time, because of an emergency, the work was such that two electricians were employed, but in no instance was an electrician helper employed. In the operation of the yards it did appear that certain work had to be done which previously had been performed by electrician helper, however, such duties were slight and of short duration and the work was performed under union rules by mechanics who were available for such slight and small service. The services thus performed sporadically were insufficient to have commanded or justified the employment of an electrician helper. It may be deduced from the plaintiff’s testimony that he believed that, upon his return from military service, his seniority rights would entitle him to advance from the position of electrician’s helper to that of electrician. The electrician who was employed when he left for the service had retired and a new electrician had taken his place hence"
},
{
"docid": "8650484",
"title": "",
"text": "two of the veterans meant the difference between employment and nonemployment. I am in complete agreement with Judge McLaughlin’s statement in his dissenting opinion in the Koury case, and consider it equally applicable in this case, that “The ‘super seniority’ referred to by the majority in connection with this veteran is not, * * * the super seniority condemned in Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110 but is the ‘extraordinary statutory security’ given the veteran by Section 8 of the Selective Service Act of 1940 (54 Stat. 890 as amended).” The majority opinion refers to “the utter impracticability of enforcing in the same plant two conflicting systems of seniority,” and also to the “impossible task which employers must endeavor to carry out * * If the employer does find himself in a dilemma, it is because he has attempted to do that which he had no right to do, namely, to enter into an agreement which disregarded the statutory rights of the veteran, and in his absence. It must be assumed that such agreement between the employer and the union was made with full knowledge of the provisions of the Selective Training and Service Act of 194 0 and that the contracting parties were fully aware that any such agreement must necessarily be read in the light of such existing law. Nor do we feel that employers are faced with an impossible task in the adoption of a formula which would not only be workable but thoroughly consonant with the views herein expressed. Here is a situation where a non-veteran by his own agreement has waived his seniority position in favor of a union steward whose only seniority is that accorded him by such bargaining agreement; the steward, in effect, occupying the position surrendered to him by the non-veteran. In passing it may be noted that the question is posed here only because of the injection into the employment line-up of the union stewards. Were it not for them reinstatement would be predicated entirely on seniority, veteran,"
},
{
"docid": "2258455",
"title": "",
"text": "as electrician-helpers had no fixed right to promotion from the position of electrician-helper to the position of electrician by virtue of any custom or by virtue of any contract, written or otherwise; that while the electrician-helper, oldest in point of service, was usually given preference in filling vacancies on the electrician roster, other things, particularly qualifications, required consideration; and that while the Act guaranteed them their seniority in the subdivision of electrical workers, it did not guarantee them promotion to vacancies occurring in the sub-division of electricians. We agree with that ruling. The Collective Bargaining Agreement does not make promotion from electrician-helper to electrician in case of vacancy an automatic one. It plainly provides application on the part of the electrician-helper, proof of his qualification for the promotion by actual trial, and for a return to his former position as electrician-helper with full seniority rights if he fails to qualify after a reasonable trial. Although there is a strong probability that the appellants would have applied for promotion to the vacancies and would have been qualified, yet such promotion was not a matter of right or of certainty merely because of seniority. If the appellants had been on furlough or leave of absence, instead of in the service, when the vacancies occurred, they would not have obtained the promotions which they are now claiming. Section 8 of the Act provides that the employee shall be considered as having been on furlough or leave of absence «during his period of training. Rule 13 of the Collective Bargaining Agreement, dealing with leave of absence, provided for such a leave for a period not exceeding 30 days with privilege of renewal, but made no provision that an employee who has been absent upon leave may upon returning exercise those rights that would have been available to him if he had not been absent. Appellants rely strongly upon certain statements of the Supreme Court in its opinion in Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S. Ct. 1105, 1111, 90 L.Ed. 1230, 167 A.L.R. 110. In that case the Supreme"
},
{
"docid": "20798028",
"title": "",
"text": "prosecuting his claim, and we likewise will not preclude assertion here on the theory of laches under the rule quoted above. Shell v. Strong, supra. The Court has determined that Plaintiff made repeated and persistent demands to certain management and union representatives from March, 1966, to June, 1966. Each demand was ultimately rejected on the basis of two 1955 arbitration decisions between the Corporation and the United Steelworkers of America which dictated company policy regarding Plaintiff’s grievance. This position as to retroactive seniority status has since been emasculated by District Judge Sorg’s decision in Foremsky v. United States Steel Corporation et al., 297 F.Supp. 1094 (D.C., 1968). Plaintiff was not aware of his specific federal re-employment rights under the Selective Service Act of 1967, until he came into the possession of a pamphlet explaining such rights in February of 1967. Thereafter in March, April and May of 1967, Plaintiff met with Robert J. Lau, Supervisor, New Jersey Division of Veterans Affairs, Department of Conservation and Economic Development, to discuss Plaintiff’s rights under the federal statutes. On May 11, 1967, Plaintiff filled out and mailed an OVRR-100 grievance form to Dow E. Walker, Regional Director of the Veterans Re-employment Bureau, U. S. Department of Labor. Thereafter, the matter was in the Government’s hands. After several attempts by the Labor Department to settle the case amicably in June of 1967, suit was instituted by the Government on behalf of Plaintiff on April 24, 1969. On the basis of Plaintiff’s repeated and persistent conduct in pursuing his claim, and in view of Defendant Corporation’s adherence to a policy which contravened the case law since Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) as well as Section 9(c)(2) of the Selective Service Act of 1967 in which the “escalator principle” of Fishgold is enunciated, the Court finds that Plaintiff is in no way guilty of laches. [H]e [the veteran] does not step back on the seniority escalator at the point he stepped off. He steps back on the precise point he would have occupied had"
},
{
"docid": "6023967",
"title": "",
"text": "* * to * * * like seniority * * * unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; * * (Emphasis Added) See statute in footnote 1, supra. For comments regarding the industrial significance of the Trailmobile and Fish-gold cases see: 46 Col.L.Rev. 3030 (1946), a critical discussion adversely commenting upon the Circuit Court opinion in the Trailmobile ease, 6 Cir.1946, 154 F.2d 866, wherein the conflict regarding veteran and labor developments is sharply noted; and 21 Tulane L.Rev. 109 (1946), directing attention to the impact of the Fishgold case upon industrial relations remarks at page 112: “ * * * Thus, the Supreme Court in the instant case has announced a final solution to this controversial question, and reached a view consistent with the analogous British and Canadian statutes. It is submitted that the instant case points towards a sound policy in curtailing the liberality of construction of legislation relative to veterans where such liberality would jeopardize a fundamental rule of industrial relations which has been relied upon ■ so heavily by both labor and management.” McLAUGHLIN, Circuit Judge (dissenting). The question before us is whether under Section 8 of the Selective Service and Training Act a returning veteran employee has the right to displace a nonveteran union official of less service seniority who claims actual seniority because of an employment contract entered into between the union and the employer while the veteran was in the Navy. I think this question has been answered in the affirmative by the Supreme Court in Trailmobile Co. v. Whirls, 67 S.Ct. 982. That case not only followed and approved Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230, 167 A.L.R. 110, but it expressly interpreted the language of the latter decision which is quoted by the majority here as favoring its view. Speaking of the veteran in the Fishgold litigation, Mr. Justice Rutledge for the Court in Trailmobile said at page 991 of 67 S.Ct.: “He was to be restored and kept, for the year"
},
{
"docid": "21035578",
"title": "",
"text": "same time. Since said lay-off there has been no occasion, acfcording to the testimony, to restore the position of the electrician’s helper. At one time, because of an emergency, the work was such that two electricians were employed, but in no instance was an electrician helper employed. In the operation of the yards it did appear that certain work had to be done which previously had been performed by electrician helper, however, such duties were slight and of short duration and the work was performed under union rules by mechanics who were available for such slight and small service. The services thus performed sporadically were insufficient to have commanded or justified the employment of an electrician helper. It may be deduced from the plaintiff’s testimony that he believed that, upon his return from military service, his seniority rights would entitle him to advance from the position of electrician’s helper to that of electrician. The electrician who was employed when he left for the service had retired and a new electrician had taken his place hence the plaintiff is of the opinion that such position should have been available to him. 1. The evidence was beyond controversy that when plaintiff returned from the service he was reinstated in accordance with his seniority rights and that he continued in his position until laid off for good and sufficient reason, that is, a reduction in force, and that from that time until the present his name has been carried on the seniority list and that, upon the restoration of the position of electrician’s helper, the plaintiff will not only be entitled to resume his former employment, but, under the rules and the seniority rights acknowledged by the defendant, he will be reinstated, if he so desires, in his old position. The averment that he was arbitrarily ■Jischarged on November 9, 1946 was completely negatived by all of the proof and particularly by the records. 2. The seniority rights of the plaintiff and his experience as an electrician helper did not entitle him ipso facto to be classified as an electrician. The statute invoked"
}
]
|
510335 | treatment of grade “A” steel from different national classification societies as most similar, rather than identical, merchandise in Rautaruukki’s Second Administrative Review reflects its standard practice of distinguishing identical from most similar merchandise and its standard policy of treating different merchandise differently. RR at 5-7. In Rautaruukki’s First Administrative Review, however, Commerce assigned one value to all grade “A” steel plate. See Rautaruukki, 1998 WL 465219, at *2. Thus, it did not consider this “standard practice” to apply during the First Administrative Review. Commerce may view the same facts differently or change its methodologies, but to be in accordance with law, the agency is required to articulate its reasons for the change and accompany these by substantial evidence. REDACTED Commerce’s general defense of its division of subject merchandise into “identical” and “nearly identical” categories, RR, at 10-11, does not support its choice to draw that line anyplace in particular, much less specifically between “AB A” steel and other grade “A” steel. Likewise, Commerce’s contention that it may look at specifications rather than actual product characteristics is inapposite, because no one contests this. At issue is whether Commerce has made a reasonable distinction among specifications. Commerce continues to state that it cannot discern whether the reported seemingly minor differences are commercially significant and claims that it may therefore presume that they are significant. RR, at 8. Nevertheless, Commerce makes its own wholly unsubstantiated and inconsistent claims about | [
{
"docid": "6638658",
"title": "",
"text": "it deemed sufficient to justify deviation from its books and records. Consequently, Shikoku, predicated as it is on concepts of procedural fairness and administrative equity, is not a guide for the resolution of the present case. Notwithstanding its verification and acceptance of Miramonte’s response in the fourth administrative review, Commerce stated that it had committed a significant error by using Miramonte’s twenty-year cost allocation in prior reviews. Commerce need not perpetuate an error from one review to the next. See Gilmore Steel, Corp. v. United States, 7 CIT 219, 224, 585 F.Supp. 670, 674 (1984) (“A contrary holding would be tantamount to saying that once an error initially evades detection, the ITA is thereafter powerless to take remedial steps, thereby compounding the error.”). Acknowledgment of an error is therefore a proper legal basis for Commerce to change its position given an identical set of facts. The difficulty here is that Commerce’s specific findings are not supported by substantial evidence. Commerce stated in the final determination that Miramonte “never explained why it treated land adequation expenses differently in its accounting records,.... ” 61 Fed.Reg. at 42,847. Miramonte did, however, alert Commerce that its accounting records were “primarily oriented for tax purposes.” Miramonte Public § D QR, Public Doc. 783 (7/8/94) at 21. This may or may not have been a sufficient explanation, see, e.g., Hercules, Inc. v. United States, 11 CIT 710, 755-56, 673 F.Supp. 454, 491 (1987)(holding that mere assertion that accounting records were tax-motivated and not reflective of true costs was insufficient), but it was some explanation. Commerce’s conclusion that Miramonte “did not justify why a five year amortization did not reasonably reflect the cost of producing the merchandise,” 61 Fed.Reg. at 42,847, is similarly at odds with the administrative record. Miramonte explained that the land preparation provided a useful benefit for the life of its greenhouses which lasted twenty years. It therefore allocated the land preparation costs over twenty years. Here again, this explanation may or may not have been sufficient, but it nonetheless was some justification for Miramonte’s claim that the five-year amortization did not reasonably reflect"
}
]
| [
{
"docid": "16829069",
"title": "",
"text": "by only an individual producer. U.S. Steel’s Comments 5. U.S. Steel argues that Commerce erred in the Second Remand Results when it “did not apply the industry-wide standard” and instead “based its analysis solely on Union’s cost of production, prices and product brochures.” Id. U.S. Steel argues that “like the ease in Pesquera, here there was absolutely no evidence of industry-wide acceptance of the difference between paints and laminates as a commercially meaningful difference.” Id. at 5-6. This was legal error, U.S. Steel maintains, because Commerce was obliged to supply a reasoned analysis upon changing its prior policies and standards and because the Court of Appeals “determined that commercial significance was properly based on industry-wide standards, rather than the claims of a single producer or individual customer preferences, in order to avoid the risk of manipulation.” Id. at 6-7. U.S. Steel’s argument misconstrues the holding in Pesquera. In that decision, the Court of Appeals cited approvingly the Department’s relying on industry-wide standards for concluding that there was no commercially significant difference between “premium” salmon and “super-premium” salmon. Pesquera, 266 F.3d at 1385. The Court of Appeals opined on the advantage of industry-wide standards in the context of the issue before it, which arose because the two grades of salmon were shown by record evidence to differ in only minor, commercially insignificant respects, such as the presence of certain minor aesthetic flaws. Id. at 1383-85. The Court of Appeals upheld the Department’s comparing as identical sales of salmon meeting a quality grade of “super premium” with sales of salmon meeting only the quality grade of “premium” because Commerce found that most industry participants did not distinguish between the two grades, which finding was supported by substantial evidence. Id. Pesquera does not hold that Commerce must find a basis in commercially-established, industry-wide product standards before concluding that any two groups of products are not “identical in physical characteristics” within the meaning of 19 U.S.C. § 1677(16)(A). U.S. Steel is also incorrect in arguing that Commerce erred by departing from a past policy or standard without a reasoned analysis. U.S. Steel’s Comments 6-7."
},
{
"docid": "14870832",
"title": "",
"text": "Commerce issued the Final Results on March 16, 2009. See Final Results, 74 Fed. Reg. 11,082. Plaintiff Union Steel brings three claims in its complaint contesting the Final Results. It claims, first, that Commerce violated the antidumping statute when, in calculating a weighted-average dumping margin, Commerce regarded the sales that plaintiff made in the United States at prices above normal value to have dumping margins of “zero.” See Compl. ¶¶ 5, 8-15. Plaintiff argues, in support of this claim, that Commerce erred in continuing to apply its “zeroing” practice in anti-dumping administrative reviews after having abandoned the practice in antidumping investigations. See id. ¶ 15. Second, plaintiff claims that Commerce erred in its use of certain model match criteria, arguing that “Commerce used model match criteria that failed to account for the significant differences in cost, price, physical characteristics, end use applications, and production processes between painted products and laminated products.” Id. ¶ 17. Finally, Union Steel “contests Commerce’s change of practice regarding the calculation of the general and administrative (‘G & A’) and interest expense ratios and Commerce’s use of Plaintiffs 2007 financial statements to calculate these ratios.” Id. ¶ 7. With respect to all three claims, Union Steel maintains that the Department’s errors caused a significant overstatement of the weighted-average dumping margin (and the resulting assessment rate) determined by Commerce for plaintiffs sales and entries during the period of review. Id. ¶¶ 5-7. On April 15, 2009, Whirlpool filed its motion to intervene as of right on the side of plaintiff Union Steel. Mot. to Intervene as of Right 1 (“Whirlpool’s Intervention Mot.”). Whirlpool argues that it has a stake in this judicial review proceeding because its supplier of the subject merchandise, LG Chem America, Inc., received a weighted-average antidumping duty margin that was based, in part, on the margin Commerce assigned to Union Steel, which Union Steel is challenging before the court. Id. at 2. On the same date, April 15, 2009, Whirlpool moved for a TRO and a preliminary injunction to prevent liquidation of its entries of subject merchandise imported during the period of review. Mot."
},
{
"docid": "17819268",
"title": "",
"text": "Iron and Steel Institute (“AISI”) or the American Welding Society (“AWS”). Fagersta Section C Questionnaire Response, C.R. Doc. No. 4, at C-4. Fagersta also stated that its internal grades “occasionally do not have a comparable AISI or AWS counterpart.” Fagersta Section A Questionnaire Response, C.R. Doc No. 1, at A-39. Fagersta has not disputed that both categories of SSWR produced by Fagersta fit within the same commercial grade established by the AISI, Final Decision Memo, P.R. Doc. No. 102, at 11, without regard to their respective levels of inclusions or fatigue resistance or any other characteristic. What Fagersta has asserted is that “AISI and other grade designation schemes do not fully capture certain physical distinctions.” Fagersta Section B Questionnaire Response, C.R. Doc. No. 3, at B-2. Fagersta has placed no evidence on the record which demonstrates that any relevant industry grading standards reflect a distinction based on the use of ESR technology in the production of SSWR. Thus, because Commerce can reasonably rely on industry grading standards to assess commercial significance, see Pesquera Mares, 266 F.3d at 1384-85, Commerce’s decision not to modify the existing model-match methodology to incorporate ESR as an additional product characteristic is both in accordance with law and supported by substantial evidence. 2 Commerce is Not Required to Adjust for Differences in Price and Cost Between Products When Those Products Are Identical According to Fagersta, “ESR-treated merchandise is significantly more costly to make, and carries a significant price premium in the market, compared to non-ESR-treated merchandise.” Plaintiffs Motion at 18. In support of this assertion, Fagersta sets out the difference between the weighted-average price of ESR SSWR and the average price of non-ESR SSWR, and the total cost of manufacture, across the three control numbers to which those products were assigned. Id. Fagersta contends that Commerce “should have placed great weight on the differences in price and cost” between these products. Id. at 21. First, Fagersta asserts that “Commerce routinely considers prices and costs in the structure of the model match,” and cites to two recent decisions issued by Commerce in support of that proposition. See"
},
{
"docid": "7983999",
"title": "",
"text": "The Court, however, is bound by the standard of review established by Congress. Congress has granted Commerce substantial discretion and has bound the Court to respect that discretion, even where the Court would have reached a different conclusion if it had been the ultimate trier of fact. The Court likely would have reached a different conclusion had this case been reviewed de novo. Nevertheless, despite its tenuous nature, the Court must conclude that in toto there is more than a “mere scintilla” of evidence supporting Commerce’s determination. The Court recognizes that the record also provides some evidence that Plaintiffs actually used “merchant grade” steel in the production of subject merchandise. The presence of this contradictoiy evidence, however, is insufficient to negate the validity of Commerce’s conclusion. It is well established that substantial evidence supporting an agency’s determination may exist even when there is sufficient evidence to support a reasonable, but contrary conclusion. See Heveafil Sdn. Bhd, 2001 WL 194986, *2 (Ct. Int’l Trade), citing, Atlantic Sugar, Ltd. v. United States, 744 F.2d at 1563. Plaintiffs could prevail only if they demonstrated that Commerce’s conclusion was unreasonable. In the absence of such proof, the Court finds that Commerce’s selection of Indian HTS category 7214.10.09 is supported by substantial evidence and otherwise in accordance with law. 2. Commerce’s use of import data to calculate the surrogate value of forged steel is supported by substantial evidence and otherwise in accordance with law. a. Parties’ Contentions Plaintiffs contend that Commerce is statutorily required to value factors of production based on prices and information from within the chosen country. Specifically, Plaintiffs cite 19 U.S.C. §1677b(c)(4), which states that Commerce shall value a non-market economy’s factors of production, to the extent possible, in one or more market economies at the same level of economic development and that are significant producers of comparable merchandise. Taking a literal approach to the “in a market economy,” Plaintiffs argue that “the best choice for selecting a price ‘in’ India is a domestic Indian price.” In support of this argument, Plaintiffs note that in addition to being a significant producer of"
},
{
"docid": "16352351",
"title": "",
"text": "matches it to non-prime merchandise sold abroad. Corus Staal BV v. United States Dep’t of Commerce, 27 CIT 388, 405, 259 F.Supp.2d 1253, 1268 (2003); see also Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea, 71 Fed.Reg. 7,513 (Dep’t Commerce Feb. 13, 2006) (notice of final results of the eleventh administrative review), Mem. to David M. Spooner, Assistant Secretary, Import Administration from Stephen J. Claeys, Re: Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea (Issues and Decisions for the Final Results of the 11th Admin. Review) at 23 (Cmt.13), available at http://ia.i ta.doc.gov/frn/summary/korea-south/E6-1984-l.pdf (excluding home market sales of non-prime merchandise from calculations where there were no sales of non-prime merchandise in the United States). In this case, Commerce has interpreted the ambiguous term “identical” in making its determination. Specifically, Commerce has determined that rod labeled “composite wire rod” is not identical to “prime wire rod.” The Court of Appeals for the Federal Circuit has held that in section 1677(16)(A), Congress meant for “identical” to mean “closely alike or equivalent, rather than ‘being the same’ or ‘exactly equal and alike.’ ” Pesquera Mares Aust- rales Ltda. v. United States, 266 F.3d 1372, 1383 (Fed.Cir.2001). The Federal Circuit found the term “identical” ambiguous, and, reviewing Commerce’s interpretation, found it to be a reasonable interpretation, where “Commerce [ ] concluded that merchandise should be considered to be identical despite the existence of minor differences in physical characteristics, if those minor differences are not commercially significant.” Id. at 1384; see also Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 845, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)(agency’s interpretation of an ambiguous term in statute reviewed for reasonableness). Thus, slight physical differences need not preclude merchandise from being considered prime merchandise. In Pesquera Mares, however, the differences “were not commercially significant.” Pesquera Mares, 266 F.3d at 1384. Faced with this legal landscape, Mittal argues that Commerce’s treatment of composite wire rod as non-prime is inconsistent with prior agency practice. PI. ’s Br. 10. Mittal points to a previous Commerce determination treating as prime merchandise rolls"
},
{
"docid": "16829070",
"title": "",
"text": "“super-premium” salmon. Pesquera, 266 F.3d at 1385. The Court of Appeals opined on the advantage of industry-wide standards in the context of the issue before it, which arose because the two grades of salmon were shown by record evidence to differ in only minor, commercially insignificant respects, such as the presence of certain minor aesthetic flaws. Id. at 1383-85. The Court of Appeals upheld the Department’s comparing as identical sales of salmon meeting a quality grade of “super premium” with sales of salmon meeting only the quality grade of “premium” because Commerce found that most industry participants did not distinguish between the two grades, which finding was supported by substantial evidence. Id. Pesquera does not hold that Commerce must find a basis in commercially-established, industry-wide product standards before concluding that any two groups of products are not “identical in physical characteristics” within the meaning of 19 U.S.C. § 1677(16)(A). U.S. Steel is also incorrect in arguing that Commerce erred by departing from a past policy or standard without a reasoned analysis. U.S. Steel’s Comments 6-7. U.S. Steel overlooks the essential point that the court already has held contrary to law the “past policy or standard,” i.e., the existing CORE model-match methodology, as that methodology was applied to Union’s products in the thirteenth review. The argument also miseharacterizes the Second Remand Results. Commerce, whether or not required to do so, gave a compelling reason for changing its established model-match methodology for CORE in response to the court’s remand order, i.e., the need to comply with the requirement that merchandise compared under § 1677(16)(A) be identical in physical characteristics. See Second Remand Results 11. Finally, U.S. Steel argues that the Second Remand Results inadequately analyze the factual record, impermissibly reaching, on the same evidence, findings of fact that are the opposites of those on which Commerce based its earlier decision. U.S. Steel’s Comments 4-11. According to U.S. Steel, “Commerce has simply recited facts that it previously rejected and has decided to rely on them without any analysis” and “at the very least should have reserved decision on the model match question and"
},
{
"docid": "22361580",
"title": "",
"text": "(“Carbon Steel Final Results”). Indeed, in the anti-dumping investigation at issue, Commerce (with agreement of all parties) used three matching criteria based on the physical characteristics of the salmon: “form, grade, and weight band.” Preliminary Results, 63 Fed.Reg. at 2,666. The “weight band” criterion, in turn, treated salmon of slightly differing weights (or salmon that could be characterized as “nearly alike”) as “identical” for purposes of the antidumping determination. In support of its argument that Congress intended the word “identical” to mean exactly the same (rather than the same with minor differences), appellant notes that 19 U.S.C. § 1677b(a)(6)(C) authorizes Commerce to adjust normal value (i.e., to make a “difmer adjustment”) when it “is established to the satisfaction” of that agency that any difference between the normal value and the United States price is “wholly or partly due” to the fact that non-identical merchandise (i.e., merchandise that falls under the definitions of “foreign like product” set forth in 19 U.S.C. § 1677(16)(B)-(C)), is used to calculate normal value. Appellant reasons from the existence of this statutorily-prescribed “difmer adjustment” that Congress intended the word “identical” used in 19 U.S.C. § 1677(16)(A) to mean “exactly the same.” We do not agree. The language of 19 U.S.C. § 1677b(a)(6)(C)(ii) tells us nothing about what definition of “identical” Congress intended Commerce to follow. Despite our conclusion that Congress intended to allow identical merchandise to have minor differences, the phrase “identical in physical characteristics,” 19 U.S.C. § 1677(16)(A), remains ambiguous, and, as we have discussed above, under Chevron Commerce has discretion to define the term. See SKF USA Inc., 263 F.3d at 1381 (noting that Commerce has “considerable discretion in defining ‘foreign like product.’ ”); American Silicon Technologies, 261 F.3d at 1378. This conclusion also finds support in our earlier (pre-URAA) decisions. In Koyo Seiko Co. v. United States, 66 F.3d 1204 (Fed.Cir.1995), for example, we held that Chevron deference was owed to the model-matching methodology used by Commerce to determine the appropriate “such or sim ilar merchandise” to be compared to the subject merchandise exported to the United States. We concluded that: Congress has"
},
{
"docid": "3433461",
"title": "",
"text": "industry-wide standards for concluding that there was no commercially significant difference between “premium” salmon and “super-premium” salmon. Pesquera, 266 F.3d at 1385. The Court of Appeals opined on the advantage of industry-wide standards in the context of the issue before it, which arose because the two grades of salmon were shown by record evidence to differ in only minor, commercially insignificant respects, such as the presence of certain minor aesthetic flaws. Id. at 1383-85. Pesquera upheld the Department’s comparing as identical sales of salmon meeting a quality grade of “super premium” with sales of salmon meeting only the quality grade of “premium” because Commerce found, based on substantial record evidence, that most industry participants did not distinguish between the two grades. Id. This case presents facts distinctly different from Pesquera. Here, the two groups of products compared in the Final Results were not shown by substantial record evidence to be “identical in physical characteristics” within the meaning of the statutory provision. U.S. Steel also contends, inaccurately, that Commerce improperly construed evidence that laminated and non-laminated, painted CORE go through separate production processes as establishing that these products had commercially significant physical differences. U.S. Steel’s Comments 8-9. Commerce did not base its conclusion of commercial significance solely on the “the fact that different production processes happen to be used.” Id. at 8. Instead, Commerce determined that different production processes resulted in the physical differences that, for various reasons grounded in record evidence, were commercially significant. Remand Redetermination 9 (“Union’s questionnaire responses, and Union’s price and cost data, demonstrate that the physical differences between laminated CORE products and non-laminated, painted CORE products are neither minor nor commercially insignificant.”). For the reasons discussed in the foregoing, the court must affirm the decision in the Remand Redetermination not to compare the subject non-laminated, painted CORE with home-market laminated CORE as merchandise identical in physical characteristics under 19 U.S.C. § 1677(16)(A). Based on the Department’s valid findings and the reasoning set forth in the Remand Redetermination, the court affirms the Department’s decision to classify the laminated CORE products as a separate type category and thereby"
},
{
"docid": "3433456",
"title": "",
"text": "in which the court held that comparing laminated CORE with painted, non-laminated CORE as identical merchandise is unlawful absent a valid finding of fact that these two groups of products are “identical in physical characteristics” within the meaning of 19 U.S.C. § 1677(16)(A). Union Steel II, 35 CIT at -, 755 F.Supp.2d at 1315-16. The order directed that Commerce review and reconsider its model-match methodology, including, specifically, the decision to deny Union’s request that the methodology be changed with respect to the treatment of laminated CORE. Id. at -, 755 F.Supp.2d at 1315-16. The order gave Commerce the option of reaching these factual determinations on the existing record or reopening the record “to investigate whether only minor and commercially insignificant physical differences distinguish Union’s laminated products from the non-laminated products to which the Department compared Union’s laminated products.” Id. at -, 755 F.Supp.2d at 1316. Commerce determined that it did not need to reopen the record to make the factual determinations necessary for compliance with the court’s remand order. For the reasons the court discussed previously in this opinion and order, the findings on which Commerce based its ultimate model-match determination are supported by substantial record evidence and, accordingly, must be upheld on judicial review. Any contrary factual determinations that the Department may have reached in deciding the model-match issue in the Final Results, or in a previous administrative review are, therefore, of no moment. Moreover, it appears that the premise of Nucor’s argument as to the Final Results is misguided. Although finding broadly that “the current model match methodology regarding laminated products is reflective of subject merchandise in the instant review,” Decision Mem. 7, Commerce, in preparing the Final Results, did not set forth clear and specific findings regarding differences in physical characteristics, production processes, marketing, or price between the laminated and the non-laminated, painted CORE products that were the subject of the fourteenth administrative review. As a general matter, the Decision Memorandum analyzed whether Union had shown that the model-match criteria were not reflective of the subject merchandise in question, whether there had been industry-wide changes to the"
},
{
"docid": "3433460",
"title": "",
"text": "the physical differences must be recognized as commer dally significant by an industry as a whole rather than by only an individual producer. U.S. Steel’s Comments 5. U.S. Steel argues that Commerce erred in the Remand Redetermination when it “did not apply the industry-wide standard” and instead “based its analysis solely on Union’s cost of production, prices and product brochures.” Id. at 6. U.S. Steel argues that “[l]ike the ease in Pesquera, here there was absolutely no evidence of industry-wide acceptance of the difference between paints and laminates as a commercially meaningful difference.” Id. This was legal error, U.S. Steel maintains, because Commerce was obliged to supply a reasoned analysis upon changing its prior policies and standards. Id. U.S. Steel’s argument misconstrues the holding in Pesquera. The case does not hold that Commerce must find a basis in commercially-established, industry-wide product standards before concluding that any two groups of products are not “identical in physical characteristics” for purposes of 19 U.S.C. § 1677(16)(A). In Pesquera, the Court of Appeals cited approvingly the Department’s relying on industry-wide standards for concluding that there was no commercially significant difference between “premium” salmon and “super-premium” salmon. Pesquera, 266 F.3d at 1385. The Court of Appeals opined on the advantage of industry-wide standards in the context of the issue before it, which arose because the two grades of salmon were shown by record evidence to differ in only minor, commercially insignificant respects, such as the presence of certain minor aesthetic flaws. Id. at 1383-85. Pesquera upheld the Department’s comparing as identical sales of salmon meeting a quality grade of “super premium” with sales of salmon meeting only the quality grade of “premium” because Commerce found, based on substantial record evidence, that most industry participants did not distinguish between the two grades. Id. This case presents facts distinctly different from Pesquera. Here, the two groups of products compared in the Final Results were not shown by substantial record evidence to be “identical in physical characteristics” within the meaning of the statutory provision. U.S. Steel also contends, inaccurately, that Commerce improperly construed evidence that laminated and non-laminated,"
},
{
"docid": "21159801",
"title": "",
"text": "that was consumed in the production of the subject merchandise. Def.’s Br. 16. Commerce further claims that the administrative determinations that Mittal cites addressing the use of the same or similar methodology, in which Commerce did not assign a surrogate value to the recycled scrap product, are of no moment. Commerce contends that the court is foreclosed from considering the methodologies adopted in other determinations because the record data in those cases are not on the record as part of the underlying ad ministrative proceeding at issue here. Commerce concedes that Appendix 7, which is' the Factor Valuation Memorandum for Certain Hot-Rolled Steel Flat Products from Romania, can be considered part of the record here, but argues that that determination is not relevant as it only indicates that in a review for a different product, recycled scrap was not valued. Def.’s Br. 12. Commerce claims that Mittal’s reliance on proceedings in other reviews for other products is equally unavailing, as none of the determinations to which Mittal points are for the same order. Def.’s Br. 13. Mittal counters this argument by the Defendant-Intervenor by asserting that it has reported the scrap product at the same level of specificity as all of the other materials reported. PI. ’s Reply Br. 3. Additionally, Mittal claims it calculated the contribution of recycled iron scrap to the subject merchandise, saying that the worksheets provided demonstrated the allocations of scrap in the production of subject merchandise. Mittal states that it “provided both the stage-specific input consumption and the cumulative input consumption over all of the stages of the production process for the subject merchandise.” Pl.’s Reply Br. 8. It then adjusted the recycled scrap by the yields of the slab caster and the plate mills, utilizing “the same reporting methodology applied to all material inputs in this proceeding.” Id. Finally, Mittal notes that in Certain Hot-Rolled Carbon Steel Flat Products from Romania, Commerce valued recycled iron scrap at zero both in its investigation and in the first administrative review. Mittal claims that the integrated production processes for hot-rolled steel and steel plate are identical until"
},
{
"docid": "2083732",
"title": "",
"text": "to include sales that did not form part of that pattern in the numerator of the ratio. Commerce’s decision to use only those sales that passed the Nails test as the numerator thus was reasonable and in accordance with law. CONCLUSION For the foregoing reasons, Commerce’s Final Results are SUSTAINED. Judgment will issue accordingly. . For a detailed explanation of the zeroing practice and its history, see Union Steel v. United States, 823 F.Supp.2d 1346 (CIT 2012). . Although the transaction-to-transaction (\"TT”) methodology also is listed as a preferred methodology, Commerce, for practical reasons, rarely employs this methodology. See 19 C.F.R. § 351.414(c)(2) (2013) (\"The Secretary will use the transaction-to-transaction method only in unusual situations, such as when there are very few sales of subject merchandise and the merchandise sold in each market is identical or very similar or is custom-made.”). . The Nails test derives its name from the cases in which it was first used. See Certain Steel Nails from the People’s Republic of China: Final Determination of Sales at Less than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73 Fed.Reg. 33,977 (Dep’t Commerce June 16, 2008); Certain Steel Nails from the United Arab Emirates: Notice of Final Determination of Sales at Not Less than Fair Value, 73 Fed.Reg. 33,-985 (Dep’t Commerce June 16, 2008). Commerce may be applying an entirely different test in future reviews. See, e.g., Certain Activated Carbon from the People's Republic of China: Issues and Decision Memorandum for the Final Results of the Fifth Antidumping Duty Administrative Review, A-5 70-904, at 21-22 (Nov. 20, 2013), available at http:// enforcement. trade.gov/frn/summary/prc/ 2013-28359-i.pdf (last visited Feb. 20, 2014); Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review: Welded Carbon Steel Standard Pipe and Tube Products from Turkey; 2011-2012, A-489-501, at 38-39 (Dec. 23, 2012), available at htlp://enforcement.trade. gov/frn/summary/turkey/2013-31344-1 .pdf (last visited Feb. 20, 2014). The court expresses no opinion on a test that was not employed in this case. . Timken had filed similar allegations in November 2011, before Commerce’s change in methodology was finalized. See I & D"
},
{
"docid": "21159802",
"title": "",
"text": "13. Mittal counters this argument by the Defendant-Intervenor by asserting that it has reported the scrap product at the same level of specificity as all of the other materials reported. PI. ’s Reply Br. 3. Additionally, Mittal claims it calculated the contribution of recycled iron scrap to the subject merchandise, saying that the worksheets provided demonstrated the allocations of scrap in the production of subject merchandise. Mittal states that it “provided both the stage-specific input consumption and the cumulative input consumption over all of the stages of the production process for the subject merchandise.” Pl.’s Reply Br. 8. It then adjusted the recycled scrap by the yields of the slab caster and the plate mills, utilizing “the same reporting methodology applied to all material inputs in this proceeding.” Id. Finally, Mittal notes that in Certain Hot-Rolled Carbon Steel Flat Products from Romania, Commerce valued recycled iron scrap at zero both in its investigation and in the first administrative review. Mittal claims that the integrated production processes for hot-rolled steel and steel plate are identical until the liquid steel stage (at which point the difference lies in the finishing of the products). Mittal argues that even though hot-rolled steel is not covered by the same order, it is so like the goods at issue here that Commerce’s treatment of the recycled scrap input here is a departure from its previous methodology. Pis Br. 11-12. The court finds it is necessary to remand this issue to Commerce. The agency’s policy is that “Commerce will offset the respondent’s cost of production by the value of a reported byproduct where the respondent’s questionnaire responses indicate that it was sold, or where the record evidence demonstrates clearly that the byproduct was re-entered into the production process.” Def.’s Br. 11. Here, Commerce’s decision not to follow its own policy is unsupported by substantial evidence; nor did Commerce “articulate[ ] a rational connection between the facts found and the choices made.” Celanese Chems. Ltd. v. United States, 2007 WL 735024, *17-18, 31 CIT-,-(CIT 2007) (citing Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83"
},
{
"docid": "17819270",
"title": "",
"text": "id. at 36 (citing Metal Calendar Slides from Japan: Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances, 71 Fed.Reg. 36,063, and accompanying Issues and Decision Memorandum at cmt. 1 (June 23, 2006), and Certain Corrosion Resistant Carbon Steel Flat Products from Canada, Final Results of Antidumping Duty Administrative Review, 70 Fed.Reg. 13,458, and accompanying Issues and Decision Memorandum at cmt. 1 (March 21, 2005)). Those decisions do not support that proposition. Commerce states that it did not switch the hierarchical order of two model-matching criteria in Metal Calendar Slides from Japan, 71 Fed.Reg. 36,063, because the petitioner “did not demonstrate that the differences in functionality, production, or pricing, and marketing were sufficient to overturn the established methodology.” Final Decision Memo, P.R. Doc. No. 102, at 16. Similarly, Commerce states that it decided not to include a certain characteristic in the model-match criteria in Carbon Steel Flat Products from Canada, 70 Fed.Reg. 13,458, in part because there were no significant price differences associated with it, and in part because the respondent had not demonstrated other compelling reasons — such as new technological developments and/or an industry-wide, commercially accepted standard. Id. Second, Fagersta criticizes Commerce for not “addressing] the significance of the difference in production costs between ESR SSWR and non-ESR SSWR, particularly in light of Commerce’s DIFMER test.” Id. at 34. Fagersta summarizes the test as follows: (1) comparison between non-identical, or “similar,” products with differences in variable production costs representing more than twenty percent of total manufacturing costs are forbidden, even with an adjustment to normal value to account for the difference; and (2) when comparing non-identical, or “similar,” merchandise an adjustment to normal value is made to account for the differences in variable production costs. Id. at 23. That summary is not accurate. Commerce is required to make adjustments to reflect the difference in price between home market sales and sales in the United States when that difference in price arises because the foreign like product is not “identical” to the domestic product to which it is being compared."
},
{
"docid": "3433455",
"title": "",
"text": "data on the record supported maintaining the current model-match criteria.” Id. at 4. Further, Nucor argues that the Department’s findings in the Remand Redetermination were not consistent with the Department’s findings in certain proceedings of the thirteenth administrative review of the order. Nucor’s Comments 3 (citing “an initial remand determination related to the previous administrative review”). U.S. Steel makes a similar argument, maintaining that the Remand Redetermination is inconsistent with the Department’s statements in certain proceedings in the thirteenth administrative review (“13AR”). U.S. Steel’s Comments 6-10. U.S. Steel argues, specifically, that the Department’s statements were “inconsistent with specific assessments made by Commerce in the 13AR,” id. at 7, such as statements regarding the significance of physical differences, id., differences in production processes, id. at 8, and differences in production costs, id. at 9. These arguments are unpersuasive. Commerce reached new findings of fact in determining whether the physical differences between laminated and non-laminated, “other painted” CORE products were minor and not commercially significant. It did so to comply with the court’s previous opinion and order, in which the court held that comparing laminated CORE with painted, non-laminated CORE as identical merchandise is unlawful absent a valid finding of fact that these two groups of products are “identical in physical characteristics” within the meaning of 19 U.S.C. § 1677(16)(A). Union Steel II, 35 CIT at -, 755 F.Supp.2d at 1315-16. The order directed that Commerce review and reconsider its model-match methodology, including, specifically, the decision to deny Union’s request that the methodology be changed with respect to the treatment of laminated CORE. Id. at -, 755 F.Supp.2d at 1315-16. The order gave Commerce the option of reaching these factual determinations on the existing record or reopening the record “to investigate whether only minor and commercially insignificant physical differences distinguish Union’s laminated products from the non-laminated products to which the Department compared Union’s laminated products.” Id. at -, 755 F.Supp.2d at 1316. Commerce determined that it did not need to reopen the record to make the factual determinations necessary for compliance with the court’s remand order. For the reasons the court discussed"
},
{
"docid": "23210535",
"title": "",
"text": "be identical despite the existence of minor differences in physical characteristics, if those minor differences are not commercially significant. We conclude that this standard adopted by Commerce constitutes a permissible construction of the statute.”); Certain Polyethylene Terephthalate Film, Sheet, and Strip from India, 70 Fed.Reg. 8,072 & accompanying Issues and Decisions Mem., 22 cmt. 5, available at http://ia.ita.doe.gov/ frn/summary/india/E5-658-l.pdf (Dep’t of Commerce Feb. 17, 2005) (finding shorter rolls to be prime solely because there was “no evidence ... that Jindal America consistently sold shorter rolls of PET film at prices lower than that charged for full rolls of identical PET film”). Indeed, Commerce may rely on any reasonable distinction. See Koyo Seiko, 66 F.3d at 1210-11. In this case, as Commerce explained, composite rod was “not identified as prime on [Mittal’s] price list for matching purposes.” Carbon and Certain Alloy Steel Wire Rod from Trinidad & Tobago, 70 Fed.Reg. 69,512 & accompanying Issues and Decisions Mem., 9 cmt. 4. Mittal admits that it charges a lower price for composite rod and that composite rod is less efficient to use. Those price and quality differences represent “commercially significant” differences. And Commerce explained that Mittal’s prime rod better represented an “identical or similar match[ ]” with the rod sold in the United States. Id. We therefore hold that Commerce’s decision to treat composite rod as non-prime merchandise was supported by substantial evidence and was adequately explained. B. Calculation of Credit Expenses from Invoice Date In its cross-appeal, Gerdau argues that, on remand, Commerce should have calculated Mittal’s credit expenses beginning on the shipment date, not the invoice date. Gerdau points out that, in its previous cases and in the prior administrative review involving Mittal, Commerce has calculated credit expenses beginning on the date of shipment. According to Gerdau, Commerce has merely given a post hoc rationalization for changing its practice. Gerdau also argues that Commerce has specifically rejected the claim that the date of sale is relevant in determining the credit expense period. According to Gerdau, Mittal’s process is not unique and does not warrant different treatment from previous practice because, like"
},
{
"docid": "17819266",
"title": "",
"text": "not contest that ESR-treated SSWR has different properties than some other SSWR products,” but rather that “Fagersta did not establish that these properties were unique to ESR-treated merchandise.” Defendant’s Response at 12. In its Final Decision Memo, Commerce stated that “many factors and/or different production steps could affect the final SSWR product with respect to both its internal characteristics (e.g., impurities or inclusion, dimensional tolerances) and its external characteristics (e.g., surface imperfections).” Final Decision Memo, P.R. Doc. No. 102, at 14. Based on this statement, Defendanb-Intervenors argue that Commerce “established that the ESR product was not significantly different than the non-ESR product....” Defendant-Inter-venors’ Response Brief (“Defendant-In-tervenors’ Response”) at 14. Commerce has interpreted the word “identical” to mean the same with “minor differences in physical characteristics, if those minor differences are not commercially significant,” and this interpretation has been upheld as a “permissible construction of the statute.” Pesquera Mares, 266 F.3d at 1384 (quoting Chevron, 467 U.S. at 843, 104 S.Ct. 2778). Commerce has not explained what it considers a “commercially significant” difference in physical characteristics, and appears to conduct a case-by-case assessment each time it determines whether products are identical. See, e.g., New World Pasta Co., 28 CIT at 309 n. 20; Pesquera Mares Australes Ltda. v. United States, 24 CIT 443, 447 n. 1 (2000), aff'd, 266 F.3d 1372 (Fed.Cir.2001). Indeed, the Federal Circuit has established that Commerce’s commercial significance determination is subject to review under the “substantial evidence” standard, Pesquera Mares, 266 F.3d at 1384. In Pesquera Mares, the court affirmed Commerce’s decision to treat “premium” and “super-premium” salmon as identical, partly because that distinction was only reflected in the grading standards of the Chilean salmon industry and not in any of the other of the “world’s largest salmon farming countries.” Id. In this case, Fagersta has not demonstrated that the differences between ESR SSWR and non-ESR SSWR are commercially significant. In its response to Commerce’s questionnaire, Fagersta stated that it produces and sells SSWR according to its own internal grading system which, according to Fagersta, is more specific than the grading system established by either the American"
},
{
"docid": "17819261",
"title": "",
"text": "and convincing evidence” that the existing model-match criteria “are not reflective of the merchandise in question,” that there have been changes in the relevant industry, or that “there is some other compelling reason present which requires a change.” Notice of Final Results of the Twelfth Administrative Review of the Antidump-ing Duty Order on Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea, 72 Fed.Reg. 13,086, and accompanying Issues and Decision Memorandum at cmt. 1(b) (March 20, 2007). Such other compelling reasons may include, for example, (1) “greater accuracy in comparing foreign like product to the single most similar U.S. model, in accordance with [19 U.S.C. § 1677(16)(B)];” (2) “a greater number of reasonable price-to-price comparisons in accordance with [19 U.S.C. § 1677b];” or (3) the existence of a “specific standard ... that is not captured in the model-matching criteria but which is industry-wide, commercially accepted and recognizes material physical characteristics of various types for the particular product at issue.” Final Decision Memo, P.R. Doc. No. 102, at 10,14-15. Commerce’s stated position that it will not modify an existing model-match methodology absent “compelling reasons” has been recognized as a reasonable means of interpreting the statute. See, e.g., SKF USA Inc. v. United States, 491 F.Supp.2d 1354, 1363 (CIT 2007) (“Commerce does indeed express its preference for maintaining a stable methodology across reviews unless compelling reasons exist.”), aff'd, 537 F.3d 1373; Mittal Steel USA, Inc. v. United States, Slip Op. 07-117, 2007 WL 2701369, **2-3, 2007 Ct. Int’l Trade LEXIS 138, at *8-*9 (August 1, 2007) (“For Commerce, the need for consistency in the model match criteria stems from its duty to calculate antidumping rates as accurately as possible.”) (citing Lasko Metal Prods., Inc. v. United States, 43 F.3d 1442, 1446 (Fed.Cir.1994)). Fagersta does not contest the lawfulness of the “compelling reasons” standard. Plaintiffs Motion at 11. Nor does Fagersta dispute that Commerce may define products as “identical” even if those products are not exactly the same. Id. at 10. Instead, Fagersta argues that it sufficiently demonstrated to Commerce that ESR and non-ESR SSWR are not “identical,” id., and thus"
},
{
"docid": "17819260",
"title": "",
"text": "analysis, Commerce states that it “considers merchandise to be identical within the meaning of section 1677(16)(A) when all the relevant characteristics match.” Id. (citing Notice of Final Determination of Sales at Less Than Fair Value: Steel Wire Rod from Trinidad & Tobago, 63 Fed.Reg. 9,177, 9,180 (February 24, 1998)). 2 A Party Seeking to Modifying an Existing Model-Match Methodology Must Meet a “Compelling Reasons” Standard Once Commerce has established a model-match methodology in an antidumping investigation, it will not modify that methodology in subsequent proceedings unless there are “compelling reasons” to do so. See Final Decision Memo, P.R. Doc. No. 102, at 10 (citing Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom: Final Results of Antidumping Duty Administrative Review, 70 Fed.Reg. 54,-711) (September 16, 2005), and accompanying Issues and Decision Memorandum at cmt. 2. A party seeking to modify an existing model-match methodology has alternative means to demonstrate that “compelling reasons” exist to do so. Commerce will find that “compelling reasons” exist if a party proves by “compelling and convincing evidence” that the existing model-match criteria “are not reflective of the merchandise in question,” that there have been changes in the relevant industry, or that “there is some other compelling reason present which requires a change.” Notice of Final Results of the Twelfth Administrative Review of the Antidump-ing Duty Order on Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea, 72 Fed.Reg. 13,086, and accompanying Issues and Decision Memorandum at cmt. 1(b) (March 20, 2007). Such other compelling reasons may include, for example, (1) “greater accuracy in comparing foreign like product to the single most similar U.S. model, in accordance with [19 U.S.C. § 1677(16)(B)];” (2) “a greater number of reasonable price-to-price comparisons in accordance with [19 U.S.C. § 1677b];” or (3) the existence of a “specific standard ... that is not captured in the model-matching criteria but which is industry-wide, commercially accepted and recognizes material physical characteristics of various types for the particular product at issue.” Final Decision Memo, P.R. Doc. No. 102, at 10,14-15. Commerce’s stated position that it"
},
{
"docid": "22361579",
"title": "",
"text": "closely alike or equivalent). We find nothing in the statute to suggest that Congress intended to depart from the ordinary definition of the term “identical.” But that leaves the question of which of the two common usages was intended by Congress: exactly the same or the same with minor differences? We conclude that Congress intended the latter usage. As the Court of International Trade observed in the decision on appeal, Mares Australes’ interpretation of the term “identical” to mean exactly the same “would frustrate the purpose of the [antidumping] statute.” Pesquera Mares Australes, 2000 WL 766520, at *3. As appellee Coalition for Fair Atlantic Salmon Trade points out, Congress could hardly have intended to require Commerce in each and every instance to compare all the physical characteristics of the goods. It might not be possible, for example, with certain types of merchandise to “account for every conceivable physical characteristic” of that merchandise. Certain Cold Rolled Carbon Steel Flat Products From Germany; Final Results of Antidumping Duty Administrative Review, 60 Fed.Reg. 65,264, 65,271 (Dec. 19, 1995) (“Carbon Steel Final Results”). Indeed, in the anti-dumping investigation at issue, Commerce (with agreement of all parties) used three matching criteria based on the physical characteristics of the salmon: “form, grade, and weight band.” Preliminary Results, 63 Fed.Reg. at 2,666. The “weight band” criterion, in turn, treated salmon of slightly differing weights (or salmon that could be characterized as “nearly alike”) as “identical” for purposes of the antidumping determination. In support of its argument that Congress intended the word “identical” to mean exactly the same (rather than the same with minor differences), appellant notes that 19 U.S.C. § 1677b(a)(6)(C) authorizes Commerce to adjust normal value (i.e., to make a “difmer adjustment”) when it “is established to the satisfaction” of that agency that any difference between the normal value and the United States price is “wholly or partly due” to the fact that non-identical merchandise (i.e., merchandise that falls under the definitions of “foreign like product” set forth in 19 U.S.C. § 1677(16)(B)-(C)), is used to calculate normal value. Appellant reasons from the existence of this"
}
]
|
173285 | S.Ct. 1644, 71 L.Ed.2d 875 (1982), and ACandS, Inc. v. Aetna Cas. & Sur. Co., 764 F.2d 968 (3d Cir.1985), both of which adopted the continuous trigger of coverage. Although not making any finding as to when bodily injury or property damage may have occurred, this Court finds this issue is not appropriate for summary judgment. Debtor has not cited a single reported decision in the relevant jurisdictions, nor has this Court found any reported decisions in the relevant jurisdictions, which adopt Debtor’s theory of a continuous trigger of coverage for asbestos-related bodily injury claims, asbestos-related property damage claims, or environmental claims. Indeed, the relevant jurisdictions which have considered the issue adopt other triggers of coverage. See, REDACTED cert. denied, — U.S.-, 112 S.Ct. 1586, 118 L.Ed.2d 805 (1992), citing Zurich Ins. v. Raymark Indus., 118 Ill.2d 23, 112 Ill.Dec. 684, 694-695, 514 N.E.2d 150, 160-161 (1987) (both exposure and manifestation are triggers for asbestos-related bodily injury under Illinois law, and continuous trigger is specifically rejected); Abex Corp. v. Maryland Cas. Co., 790 F.2d 119, 121 (D.C.Cir.1986) (injury-in-fact is the trigger for asbestos-related bodily injury under New York law); Eagle-Picher Indus. v. Liberty Mut. Ins. Co., 682 F.2d 12, 25 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983) (manifestation is the trigger for asbestos-related bodily injury under Ohio law); United States Fidelity & Guar. Co. v. Wilkin Insulation Co., 144 | [
{
"docid": "3978855",
"title": "",
"text": "Further, the $254 million figure does not include the cost of asbestos claims settled by UNR and its other insurance carriers prior to the reorganization. CNA states in the record that these settlement costs were $8.4 million, see Affidavit of Stephen R. Hoff, Table 9, but we do not decide the actual value. The point is only that the full value of all asbestos claims includes pre-reorganization claims as well. The parties may come up with other, valid adjustments to the $254 million value of the asbestos claims determined by the reorganization. On remand, the District Court should consider such additional adjustments to the extent necessary to determine CNA’s obligations. The key question is how much of the $254 million (as adjusted) is allocable to each year that CNA provided its excess insurance. The parties agree that the Illinois Supreme Court’s decision in Zurich Insurance v. Raymark Industries, 118 Ill.2d 23, 112 Ill.Dec. 684, 514 N.E.2d 150 (1987) controls this allocation. In Raymark, the Court interpreted the policy terms “sickness,” “disease” and “bodily injury” in the context of insurance coverage in asbestos cases. The Court concluded that a “ ‘[bjodily injury’ takes place at or shortly after the time a claimant is exposed to asbestos and continues throughout a claimant’s exposure to asbestos.” 112 Ill. Dec. at 695, 514 N.E.2d at 161. “Disease” is an illness that is “reasonably capable of clinical detection and diagnosis.” Id. And “ ‘Sickness’ takes place at any time during which the claimant ‘suffers from a disordered, weakened, or unsound condition’ before the clinical manifestation of a disease.’ ” Id. Not surprisingly, UNR and CNA disagree about what portion of the asbestos claims meet the Raymark standards for the policy period. UNR urges 69%; CNA argues that the number is about 3.8%. See UNR’s Reply Memorandum in Support of its Motion for Partial Summary Judgment, June 6, 1989, p. 13 (naming 69% figure); CNA’s Affidavit of Steven R. Hoff, Tables 5 and 6 (reporting 587 claims out of 15,339 reviewed by CNA as showing evidence of exposure or manifestation during the policy period). To resolve"
}
]
| [
{
"docid": "23219615",
"title": "",
"text": "for insurance coverage; court concluded that New York courts would apply injury-in-fact standard for insurance coverage); Abex Corp v. Maryland Casualty Co., 790 F.2d 119, 124-25 (D.C.Cir.1986) (interpreting policy which provides coverage for occurrence that “results, during the policy period, in bodily injury”); Eagle-Picher Indus. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982) (manifestation triggers insurance coverage), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 1280, 75 L.Ed.2d 500 (1983). If persons exposed to asbestos fibers have a sufficient injury to warrant insurance coverage, they must have suffered a quantum of harm adequate to satisfy the constitutional case or controversy minimum of injury-in-fact. See generally In re Johns-Manville Corp., 36 B.R. 743, 750 (Bankr.S.D.N.Y.1984) (discussion of insurance cases), aff'd, 52 B.R. 940 (S.D.N.Y.1985). As the Seventh Circuit explained: Even in a “discovery” state the cause of action may “exist” before it “accrues”— that is before the statute of limitations on bringing it begins to run.... These states postpone the date of accrual of the cause of action not in order to prevent the early filing of claims but in order to lift the bar of a statute of limitations to later filings. In re UNR Indus., 725 F.2d 1111, 1119 (7th Cir.1984); see also Insurance Co. of North America, 657 F.2d at 816; Keene, 667 F.2d at 1047) (court decided both exposure and manifestation trigger coverage under comprehensive general liability policies). In Commercial Union Insurance Co. v. Pittsburgh Coming Corp., 553 F.Supp. 425, 433 (E.D.Pa.1981), the district court explained its holding that exposure triggered insurance coverage: I hold in favor of an exposure theory based on either of two simple, uncontro-verted, and indisputable facts: (1) asbestos disease is cumulative; and (2) some microscopic damage occurs before manifestation of the injury ... By the former, I mean that asbestos diseases are caused by an accumulation over time of asbestos particles in the body. Particles accumulated during exposure, but before manifestation of an asbestos disease, are a cause-in-fact of the disease. The second fact statement is self-explanatory. Id. at 433; cf. Maryland Casualty Co. v. W.R. Grace Co., 1991 WL"
},
{
"docid": "13764335",
"title": "",
"text": "the court considered the trigger of coverage issue in relation to diseases caused by asbestos. The court interpreted the term “injury,” see id. at 1042-47, and concluded the policy did “not direct [it] unambiguously” to a particular trigger theory. Id. at 1043. The court held that “any part of a single injurious process” would trigger coverage. Id. at 1047. Similarly, in Lac D’Amiante Du Quebec v. American Home Assurance Co., 613 F.Supp. 1549 (D.N.J.1985) (“LAQ ”), the court considered the trigger issue in the context of asbestos related property damage and bodily injury. With respect to bodily injury, the court stated that “these provisions are ambigu ous in that they fail to articulate with any precision a point in the lengthy development of an insidious disease at which coverage is triggered,” and adopted the reasoning of Keene. The court then noted that asbestos-related property damage was, like the asbestos-related diseases, both “continuous and progressive.” Id. at 1561. Applying both AC & S and Keene, the LAQ court concluded that if any part of the injurious process took place during the policy period, the policy would be triggered. See id. Although not urged by the parties to this action, this Court is cognizant of recent cases that require a showing of “actual injury” or “injury-in-fact” in order for a policy to be triggered. See, e.g., Triangle Publications, Inc. v. Liberty Mutual Insurance Co., 703 F.Supp. 367, 371 (E.D.Pa.1989); Uniroyal, Inc. v. Home Insurance Co., 707 F.Supp. 1368, 1388 (E.D.N.Y.1988). Courts that have adopted this standard in a continuous injury context have had to abandon a precise determination of when injury in fact did occur because of the evidentiary problems posed. In Eagle-Picher Industries v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982) (“Eagle-Picher I”), cert. denied sub nom., Froude v. Eagle-Picher Indus., 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983), the First Circuit held that coverage for asbestos related diseases was triggered when a disease became diagnosable. Id. at 25. The district court's first attempt at applying this standard was appealed. The circuit court, in its second look"
},
{
"docid": "4506503",
"title": "",
"text": "denied. IV. Coverage Trigger As noted earlier, the Trust has not moved for summary judgment on any of the counts alleged in the Complaint. At least one declaration sought in the Complaint, however, raises only legal issues and, we find, is ripe for disposition sua sponte pursuant to Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 826, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (“district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.”) (citations omitted); LTV Corp. v. AM General Corp. (In re Chateaugay), 154 B.R. 843, 852 (Bankr.S.D.N.Y.1993) (“Where there are no disputed issues of material fact and the nonmoving party is entitled to judgment as a matter of law, a court may sua sponte enter judgment against a party moving for summary judgment.”) (citations omitted). The Trust, as a nonmovant, will have ten days from the entry of an order to file objections to summary judgment. See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720, 27-28 (1983 & 1994 Supp.). Count 8, in part, seeks a declaration that the following three events trigger coverage under the applicable P & I policies: (1) exposure to asbestos; (2) “exposure-in-residenee” or “continuous trigger,” i.e., the cumulative period following initial exposure during which asbestos-related disease progresses; and (3) manifestation of asbestos-related disease. See Complaint at ¶ 82. All three examples reflect the variety of analyses employed to determine when coverage arises in asbestos litigation. See, e.g., Commercial Union Ins. Co. v. Sepco Corp., 765 F.2d 1543 (11th Cir.1985) (asbestos exposure triggers coverage); Eagle-Picher Indus. v. Liberty Mut. Ins. Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983) (manifestation of disease triggers coverage); and Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982) (inhalation exposure, exposure in residence and manifestation all trigger insurance"
},
{
"docid": "7595836",
"title": "",
"text": "Insulations, 633 F.2d at 1225. In accord Porter v. American Optical Corp., 641 F.2d 1128. Under the exposure theory, which applies to diseases that are cumulative and progressive, bodily injury occurs when an exposure causing tissue damage takes place and not when physical symptoms caused by the disease manifest themselves. The District of Columbia Circuit, taking the exposure theory a step further, adopts the continuous exposure theory and holds that coverage is triggered by either exposure to asbestos products, i.e., injury suffered to the tissue after the asbestos fibers are imbedded in the tissue, or manifestation of asbestos-related disease during the policy period. Keene Corp. v. Insurance Co. of North America, 667 F.2d at 1047; A C and S, Inc. v. Aetna Casualty and Surety Co., 764 F.2d 968, (3rd Cir.1985). The First Circuit adopts the manifestation theory and concludes that coverage under these types of insurance policies is triggered by a claim that an asbestos disease has manifested itself during the policy period. Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12, 24 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). Cf. Todd Shipyards Corp. v. Black, 717 F.2d 1280 (9th Cir.1983), cert. denied, 466 U.S. 937, 104 S.Ct. 1910, 80 L.Ed.2d 459 (1984) (under the Longshoremen’s and Harbor Workers’ Compensation Act Congress intended to hold the last covered employer, who causes or contributes to the occupational injury, completely liable once the injury has manifested itself.) Admiral appears to contend that this court should adopt the continuous exposure theory. Mutual, on the other hand, contends that this court should adopt the exposure theory. We must determine whether coverage liability was only triggered by the exposure, that is to say, the implantation of the contaminated porcine valve or whether liability was also triggered by the continuous growth of bacteria throughout both insurance policy periods. The record indicates that following exposure to the contaminated valve, the bacteria continued to grow. The infectious disease process resulting from the contaminated Hancock heart valve is similar to a cumulative progressive type of disease rather than a"
},
{
"docid": "10560574",
"title": "",
"text": "coverage because it is reasoned that the disease is not manifested until it is diagnosable. Under this theory, “bodily injury” means the manifestation of a diagnosable disease. See Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). Under the Exposure-in-Residence Theory, it has been held that, since asbestos-related diseases are progressive, bodily injury occurs during the latency period of the disease continuously from exposure to manifestation. Coverage is triggered by a claim that a victim was either exposed to asbestos products, suffered exposure-in-residence, or manifested an asbestos-related disease during the policy period. See Lac D'Amiante, supra, 613 F.Supp. at 1555. The Pennsylvania Supreme Court has not ruled on the issue of which theory is applicable in asbestos health cases decided, like the instant claims, under the law of Pennsylvania. However, the Third Circuit concluded, in AC and S II, 764 F.2d at 972-73, that the Exposure, Exposure-in-Residence and Manifestation Theories all constitute bodily injury. In predicting how the Pennsylvania Supreme Court would rule on this issue, the Third Circuit relied upon the Pennsylvania Superior Court’s opinion in Vale Chemical Co. v. Hartford Accident & Indemnity Co., 340 Pa.Super. 510, 490 A.2d 896 (1985), vacated on other grounds, 512 Pa. 290, 516 A.2d 684 (1986) (hereinafter cited as “Vale”). The court in Vale, applying Keene, supra, reasoned that “in the context of a disease with a long latency period such as asbestos-related diseases, the terms ‘bodily injury,’ ‘sickness’ and ‘disease,’ standing alone, simply lack the precision necessary to identify a point in the development of the disease at which coverage is triggered.” 340 Pa.Super. at 520-21, 490 A.2d at 901. Thus, the courts in both AC & S II, supra; and Keene, supra, adopted an all encompassing definition for “bodily injury” which includes the Exposure, Exposure-in-Residence, and Manifestation Theories. “Bodily injury” means, therefore, according to these courts, “any part of the single injurious process that asbestos-related diseases entail.” AC & S II, supra, 764 F.2d at 972. See also Techalloy Co. v. Reliance Insurance Co.,"
},
{
"docid": "2437968",
"title": "",
"text": "words is that an injury — and not mere exposure — must result during the policy period. The CGL policies expressly distinguish exposure from injury; ... Abex Corp. v. Maryland Casualty Co., 790 F.2d 119, 127 (D.C.Cir.1986) (emphasis in original); accord, Detrex Chem. Indus, v. Employers Ins. Co., 746 F.Supp. 1310, 1323 (N.D.Ohio 1990) (“an actual injury must occur during the time the policy is in effect in order to be indemnifiable or compensable”); Triangle Publications, Inc. v. Liberty Mutual Ins. Co., 703 F.Supp. 367, 370 (E.D.Pa. 1989) (“the plain language of the CGL contract supports only one construction: the injury-in-fact analysis”). Where a release results in immediate contamination, the distinction between “exposure” and “injury-in-fact” is largely semantic. Reasoning from the premise that “environmental contamination caused by improper disposal of hazardous wastes constitutes ‘property damage’ ” within the meaning of a CGL policy, the Eighth Circuit observed in NEPACCO that “application of either the ‘exposure’ or ‘injury-in-fact’ theory of coverage would make little difference because of the specific facts presented” in that case; “the improper disposal of the hazardous wastes immediately resulted in their release into the environment.... Because by definition hazardous wastes are extremely harmful, there was clearly both ‘exposure’ and ‘injury-in-fact’ during the first policy period....” 842 F.2d at 984. “In cases where disposal of hazardous wastes into the environment causes the release of hazardous wastes at some point in the future, however, the exposure theory may not accurately reflect the moment in time when injury occurs.” F. Powell, supra. 3. The “manifestation” trigger. The “manifestation” trigger invokes coverage when, e.g., in one “landmark” asbestos contamination case, an asbestos-related disease becomes “reasonably capable of medical diagnosis” during the policy period. See, e.g., Eagle-Picher Indus., Inc. v. Liberty Mutual Ins. Co., 523 F.Supp. 110 (D.Mass. 1981), modified, 682 F.2d 12, 17 (1st Cir. 1982) , cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). In the context of property damage resulting from contamination by hazardous wastes, the “manifestation” trigger appears to have more reasoned application in instances where the time that actual injury begins to occur"
},
{
"docid": "14822171",
"title": "",
"text": "any genuine issues of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Furthermore, under Rule 56(e), “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Trigger of Coverage for Bodily Injury Claims The first issue the parties raise concerns the trigger of coverage for bodily injury claims. The insurer “on the risk” at the triggering time must provide coverage. Eagle-Picher Industries v. Liberty Mutual Ins. Co., 523 F.Supp. 110, 111 (D.Mass. 1981), modified on other grounds, 682 F.2d 12 (1st Cir.1982). This issue “usually arises when several different insurers have, in sequence, insured a company whose products caused injuries at different or uncertain times.” Uniroyal, Inc. v. Home Ins. Co., 707 F.Supp. 1368, 1387 (E.D.N.Y.1988). Maryland argues that the bodily injury claims and, for that matter, the property damage claims, fall outside its policy periods and, thus, its policies are not triggered. Citing Keene Corp. v. Ins. Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982) (“Keene”), Grace argues that all policies on the risk during the continuous bodily injury process, from first exposure to asbestos through manifestation of the asbestos-related disease, must pay in full Grace’s legal liability for all asbestos-related bodily injury claims and lawsuits against Grace. In Keene, the court rejected the manifestation theory, which requires manifestation of injury during the policy period, as the only trigger of coverage in delayed manifestation cases. Id. at 1046. Inhalation exposure (exposure to asbestos dust) and exposure in residence (the subsequent development of the disease) also trigger coverage, the Keene court found. Id. The Keene court concluded that once triggered, each policy on the risk covered the insured’s liability. Id. at 1048. In American Home Products"
},
{
"docid": "2121388",
"title": "",
"text": "asbestos. If the exposure occurs during the policy period of more than one carrier, the coverage and defense obligations are to be apportioned pro rata among the carriers on the risk during any period of exposure. Proponents of this theory contend that bodily injury takes place at or shortly after exposure to asbestos. The “manifestation theory” was adopted by the First Circuit in Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). Under this theory, coverage and defense obligations are not triggered until the occurrence insured against has manifested itself in such manner as to be medically detectable and diagnosable. Proponents of this theory assert that a court must focus on the word “disease” rather than bodily injury. They contend that asbestos-related diseases are undiagnosable until an individual has recognizable symptoms, which may be as long as 20 to 40 years after exposure if exposure actually produces a disease. A third or hybrid theory was stated by the D.C. Circuit in Keene Corp. v. Insurance Company of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). The Keene court held that coverage is triggered by injury and that such injury occurs from first inhalation of asbestos through exposure and until clinical manifestation of an asbestos-related disease. This theory provides the maximum amount of insurance coverage. The Keene theory was adopted by the Third Circuit in ACandS, Inc. v. Aetna Casualty & Surety Co., 764 F.2d 968 (3d Cir.1985). However, the theory has not been consistently applied in the D.C. Circuit. See Abex Corporation v. Maryland Casualty Co., 790 F.2d 119 (D.C.Cir.1986); Owens-Illinois, Inc. v. Aetna Casualty & Surety Co., 597 F.Supp. 1515 (D.D.C.1984), appeal pending D.C.Cir. On May 27, 1986, the Illinois Appellate Court, First District, decided the case of Zurich Insurance Co. v. Northbrook Excess & Surplus Insurance Co., 145 Ill.App.3d 175, 98 Ill.Dec. 512, 494 N.E.2d 634 (1st Dist.1986). The Appellate Court decided that asbestos-related claims trigger policies in effect during exposure and"
},
{
"docid": "10560573",
"title": "",
"text": "for damages paid to asbestos health claimants, the determination of liability turns on the definition of the term “personal injury” as set forth in the Stonewall policy. Three divergent legal theories have evolved in interpreting the terms “personal injury” and “bodily injury” in the context of asbestos-related diseases. For our purposes herein, these two terms shall be treated as interchangeable. The three theories are known as (1) the Exposure Theory; (2) the Exposure-in-Residence Theory; and (3) the Manifestation Theory. Under the Exposure Theory, mere exposure to asbestos is determined to be sufficient to trigger coverage because “bodily injury” arises from exposure. See Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.1980), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); and Insurance Co. of N. America v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980), clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). Under the Manifestation Theory, manifestation of the disease during the policy period is the sole trigger to coverage because it is reasoned that the disease is not manifested until it is diagnosable. Under this theory, “bodily injury” means the manifestation of a diagnosable disease. See Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). Under the Exposure-in-Residence Theory, it has been held that, since asbestos-related diseases are progressive, bodily injury occurs during the latency period of the disease continuously from exposure to manifestation. Coverage is triggered by a claim that a victim was either exposed to asbestos products, suffered exposure-in-residence, or manifested an asbestos-related disease during the policy period. See Lac D'Amiante, supra, 613 F.Supp. at 1555. The Pennsylvania Supreme Court has not ruled on the issue of which theory is applicable in asbestos health cases decided, like the instant claims, under the law of Pennsylvania. However, the Third Circuit concluded, in AC and S II, 764 F.2d at 972-73, that the Exposure, Exposure-in-Residence and Manifestation Theories all constitute bodily injury. In predicting how the Pennsylvania"
},
{
"docid": "18787688",
"title": "",
"text": "clarified, 657 F.2d 814 (6th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). . Id. . Under the CGL policy, occurrence is defined as an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured. Id. . 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). . 748 F.2d 760 (2d Cir.1984). . As will be discussed in Part IIC, infra, Maryland disputes that it insured Abex during the years alleged. . Comprehensive General Liability Policy, note 1 supra. . Id. . Id. . This provision is called a deemer clause because it deems when injury occurs. . Liberty Mutual Insurance Policy (emphasis added), reprinted in Record Excerpts Submitted by Liberty Mutual Insurance Company (“R.E.”) 41. . R.E. 45. The 1966 policy uses different language: If the insured has other insurance against a loss covered by this policy, the insurance afforded by this policy shall be excess insurance over and above any other valid and collectible insurance available to the insured. R.E. 41. . Maryland Casualty Company Policy, reprinted in Record Excerpts Submitted by Appellee Abex Corporation 13. . Abex Corp. v. Maryland Casualty Co., Civil Action No. 82-2098 (D.D.C. April 16, 1986) (order), reprinted in R.E. 9-10. . See, e.g., Eagle-Picher Indus., Inc. v. Liberty Mut. Ins. Co., 523 F.Supp. 110 (D.Mass.1981), modified, 682 F.2d 12 (1st Cir.1982) (as modified, insurance coverage is triggered when \"asbestos-related disease became reasonably capable of medical diagnosis”), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). . See, e.g., Porter v. American Optical Corp., 641 F.2d 1128, 1145 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). For a detailed study of the various approaches used to solve this problem, see Note, Adjudicating Asbestos Insurance Liability: Alternatives to Contract Analysis, 97 Harv.L.Rev. 739 (1984). . 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). . Id. at 1047"
},
{
"docid": "2121389",
"title": "",
"text": "Circuit in Keene Corp. v. Insurance Company of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). The Keene court held that coverage is triggered by injury and that such injury occurs from first inhalation of asbestos through exposure and until clinical manifestation of an asbestos-related disease. This theory provides the maximum amount of insurance coverage. The Keene theory was adopted by the Third Circuit in ACandS, Inc. v. Aetna Casualty & Surety Co., 764 F.2d 968 (3d Cir.1985). However, the theory has not been consistently applied in the D.C. Circuit. See Abex Corporation v. Maryland Casualty Co., 790 F.2d 119 (D.C.Cir.1986); Owens-Illinois, Inc. v. Aetna Casualty & Surety Co., 597 F.Supp. 1515 (D.D.C.1984), appeal pending D.C.Cir. On May 27, 1986, the Illinois Appellate Court, First District, decided the case of Zurich Insurance Co. v. Northbrook Excess & Surplus Insurance Co., 145 Ill.App.3d 175, 98 Ill.Dec. 512, 494 N.E.2d 634 (1st Dist.1986). The Appellate Court decided that asbestos-related claims trigger policies in effect during exposure and at the time of manifestation of sickness or disease, but not those in effect during any post-exposure, pre-manifestation latency period. The court further held that a primary insurer is not obligated to continue to fund the defense of pending actions once its duty to indemnify has been terminated by the payments of judgments or settlements and the insurer has made an orderly withdrawal from pending proceedings. The principal of pro rata allocation of costs of defense and indemnity among the triggered policies was rejected. The Illinois Supreme Court granted petitions for leave to appeal filed by both the insured and the insurers in the Zurich case. On September 15, 1987, the Illinois Supreme Court rendered its decision affirming the judgment of the Appellate Court. Zurich Insurance Company, et al. v. Raymark Industries, Inc., 118 Ill.2d 23, 112 Ill.Dec. 684, 514 N.E.2d 150 (1987). The Illinois Supreme Court found the language of the policies in dispute to be unambiguous. The Court stated: ... [W]e hold that under the plain and unambiguous language of the policies at"
},
{
"docid": "16040799",
"title": "",
"text": "excess insurer of Raymark, its policies being excess to primary coverage provided by Zurich and first-layer excess coverage provided by American Home Insurance Company (“American Home”). Lumbermens’ policies covered a period of only two out of the forty-two years for which Raymark purchased liability insurance and represent only $10,000,000 of Raymark’s total of nearly $400,000,000 of liability insurance coverage. Over eight years ago Zurich filed an action in Illinois for a declaratory judgment as to when bodily injury triggers coverage under comprehensive general liability policies, naming as defendants Raymark’s other primary insurers. Zurich contended, like Lumbermens in the instant action, that injury triggering coverage occurs at the time of a claimant’s exposure to asbestos while certain other of Raymark’s primary insurers contended that injury triggering coverage occurs only at the time of the claimant’s manifestation of symptoms of an asbestos-related disease. As the First Circuit pointed out in Liberty Mutual Insurance Co. v. Foremost-McKesson, Inc., 751 F.2d 475, 477 (1st Cir.1985), if these two actions were to proceed concurrently there is the real possibility that the two courts might interpret the same standard policy language differently. The First Circuit compared Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12, 19 (1st Cir.1982) (asbestosis “results” when it is manifested), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983), with Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1046 (D.C.Cir.1981) (asbestos causes “injury” at time of exposure), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). On September 29, 1983, the Illinois court issued an order relating to triggers of coverage for the primary insurance policies. Three other of Raymark’s first-layer excess insurers were later joined in the Illinois action, see Zurich Insurance Co. v. Raymark Industries, Inc., supra, and on May 6, 1986, Raymark was given leave to join its remaining excess insurers, including Lumbermens, so as to adjudicate the entire coverage dispute in one comprehensive action. Lumbermens brought this declaratory judgment action in federal court in Connecticut in March 1984. Raymark’s first motion to dismiss or stay the Connecticut"
},
{
"docid": "7636244",
"title": "",
"text": "occurrence, the plaintiff in the underlying suit, Sample, had not sustained covered property damage since, at the time of the yellowing, Joanna rather than Penda owned the books. Looking to the wording of the policy, the Seventh Circuit observed that the policy covered liability that the insured incurred “because of property damage,” and declined to require that the damaged property belong to the plaintiff in the underlying action. Travelers, 974 F.2d at 830. The court observed, “Illinois cases do not consider who owned the property in question when determining if a claim is within policy coverage.” Id. Zurich Ins. Co. v. Raymark Industries, Inc., 118 Ill.2d 23, 112 Ill.Dec. 684, 514 N.E.2d 150 (1987), established that under Illinois law, an occurrence policy which is triggered by injury is triggered even by non-manifest, microscopic injury. In Zurich, the court dealt with an occurrence policy that defined an occurrence as “an accident, including injurious exposure to conditions, which results during the policy period, in bodily injury.” Id. at 154. The claimants had suffered asbestos-related injury, and the issue was whether inhalation of asbestos fibers or manifestation of asbestos-related disease triggered the policy. After an evidentiary hearing, the trial court concluded that asbestosis begins when a person first inhales asbestos fibers, that the fibers that settle in the small air passages in the lower respiratory tract continuously injure the lung, that the body’s futile efforts to ingest the fibers cause additional damage including the formation of scar tissue, that each new inhalation of fibers causes additional damage and that at some time subsequent to the initial exposure, disease manifests itself. The Illinois Supreme Court held that, according to the unambiguous policy language, “ ‘bodily injury’ is the event which gives rise to the insurers’ obligations under the policies.” Id. at 159. Because the policies defined “bodily injury” as “bodily injury, sickness or disease,” and because bodily injury occurred, albeit on a microscopic level, when the asbestos fibers were first inhaled, the court held that “an insurer whose policy was in force at the time a claimant was exposed to asbestos must provide coverage.”"
},
{
"docid": "14822172",
"title": "",
"text": "1368, 1387 (E.D.N.Y.1988). Maryland argues that the bodily injury claims and, for that matter, the property damage claims, fall outside its policy periods and, thus, its policies are not triggered. Citing Keene Corp. v. Ins. Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982) (“Keene”), Grace argues that all policies on the risk during the continuous bodily injury process, from first exposure to asbestos through manifestation of the asbestos-related disease, must pay in full Grace’s legal liability for all asbestos-related bodily injury claims and lawsuits against Grace. In Keene, the court rejected the manifestation theory, which requires manifestation of injury during the policy period, as the only trigger of coverage in delayed manifestation cases. Id. at 1046. Inhalation exposure (exposure to asbestos dust) and exposure in residence (the subsequent development of the disease) also trigger coverage, the Keene court found. Id. The Keene court concluded that once triggered, each policy on the risk covered the insured’s liability. Id. at 1048. In American Home Products Corp. v. Liberty Mutual Ins. Co., 565 F.Supp. 1485 (S.D.N.Y.1983), affd as modified, 748 F.2d 760 (2d Cir.1984) (“AHP’), however, Judge Sofaer, applying New York law, rejected the conclusions reached in Keene. Instead, Judge Sofaer determined that actual injury triggers coverage. Id. at 1489. Grace argues that AHP does not apply here because that case involved six different pharmaceutical products, not asbestos. See AHP, supra, 565 F.Supp. at 1490 n. 1. If any doubt existed as to AHP’s applicability to asbestos in New York, Abex Corp. v. Maryland Casualty Co., 790 F.2d 119, 124-25 (D.C.Cir.1986), put it to rest. The same court that decided Keene, after examining the applicable New York case law applied AHP to asbestos. Id. at 125. The court also noted that Keene did not purport to apply New York law. Id. at 124. Not only that, the Abex court’s own reading of the policy language, which it termed unambiguous, agreed with the result in AHP. Still, Grace contends that Abex should have relied on New York state cases, and not on"
},
{
"docid": "7595835",
"title": "",
"text": "diseases, it is often difficult to determine what occurrence triggers liability under a particular policy. The basic theories advanced by the courts in similar cases are the “exposure” theory, the “manifestation” theory, and the “continuous exposure” theory. These theories have generally been addressed by courts faced with determining the insurance liability coverage in asbestosis cases. See e.g. Insurance Co. of North America v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir.1980) clarified in part, 657 F.2d 814, cert. denied, 455 U.S. 1099, 102 S.Ct. 1648, 71 L.Ed.2d 878 (1982); Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). The Sixth Circuit follows the exposure theory and holds that the obligations imposed upon insurance companies by the standard comprehensive general liability policy are triggered by “exposure” to asbestos-containing products during the policy period. Insurance Co. of North America v. Forty-Eight Insulations, 633 F.2d at 1225. In accord Porter v. American Optical Corp., 641 F.2d 1128. Under the exposure theory, which applies to diseases that are cumulative and progressive, bodily injury occurs when an exposure causing tissue damage takes place and not when physical symptoms caused by the disease manifest themselves. The District of Columbia Circuit, taking the exposure theory a step further, adopts the continuous exposure theory and holds that coverage is triggered by either exposure to asbestos products, i.e., injury suffered to the tissue after the asbestos fibers are imbedded in the tissue, or manifestation of asbestos-related disease during the policy period. Keene Corp. v. Insurance Co. of North America, 667 F.2d at 1047; A C and S, Inc. v. Aetna Casualty and Surety Co., 764 F.2d 968, (3rd Cir.1985). The First Circuit adopts the manifestation theory and concludes that coverage under these types of insurance policies is triggered by a claim that an asbestos disease has manifested itself during the policy period. Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12,"
},
{
"docid": "2140733",
"title": "",
"text": "establish the claim of ambiguity regarding the “occurrence” clause and any related question. To support the application of the continuous trigger of coverage in environmentally-related property damage matters, Detrex cites several cases. One of these cases is New Castle County v. Continental Casualty Company, 725 F.Supp. 800 (D.Del.1989) (New Castle III). The county brought its action for a declaratory judgment seeking a declaration that 12 insurance companies must defend and indemnify the county for claims arising from pollution leaking from two county landfills, Llangol-len and Tybouts Corner. The County and 11 of the insurance companies settled before trial. The case was tried on the merits solely as to Continental Casualty Company for claims brought for damages caused by the Tybouts Corner operation. The New Castle III court observed that “applying both AC & S [Inc. v. Aetna Casualty & Surety Co., 764 F.2d 968 (3rd Cir.1985) ] and Keene [Corp. v. Ins. Co. of N. America, 667 F.2d 1034 (D.C.Cir.1986) ], the LAQ court concluded that if any part of the injurious process took place during the policy period, the policy would be triggered.” New Castle III, supra. The New Castle III court was cognizant of recent cases that require a showing of “actual injury” or “injury-in-fact” in order for a policy to be triggered. See e.g., Triangle Publications, Inc. v. Liberty Mutual Insurance Co., 703 F.Supp. 367, 371 (E.D.Pa.1989; Uniroyal, Inc. v. Home Insurance Co., 707 F.Supp. 1368, 1388 (E.D.N.Y.1988). Courts that have adopted this standard in a continuous injury context have had to abandon a precise determination of when injury in fact did occur because of the evidentiary problems posed. The court then recounted In Eagle-Picher Industries v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982) (‘‘Eagle-Picher (”), cert denied sub nom., Froude v. Eagle-Picher Indus., 460 U.S. 1028 [103 S.Ct. 1279, 75 L.Ed.2d 500] (1983), the First Circuit held that coverage for asbestos related diseases was triggered when a disease became diagnosable. Id. at 25. The district court’s first attempt at applying this standard was appealed. The circuit court, in its second look at the case,"
},
{
"docid": "23219614",
"title": "",
"text": "assert their interests during a pre-launching distribution. Id. at 749. Some courts have held that the time of exposure to asbestos triggers insurance coverage. See Insurance Co. of North America v. Forty Eight Insulations, Inc., 657 F.2d 814, 816 (6th Cir.) (trigger for insurance coverage exposure because ‘bodily injury’ occurs when asbestos victims first starts breathing asbestos fibers), cert denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); see also Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1047 (D.C.Cir.1981) (term “bodily injury” in comprehensive liability policies means “any part of the single injurious process that asbestos-related disease entails”), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982); Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981) (same). But see W.R. Grace & Co. v. Continental Casualty Co., 896 F.2d 865, 876 (5th Cir.1990) (reversing district court after analysis of Texas and New York law revealed conflict on issue of injury-in-fact versus continuous trigger for insurance coverage; court concluded that New York courts would apply injury-in-fact standard for insurance coverage); Abex Corp v. Maryland Casualty Co., 790 F.2d 119, 124-25 (D.C.Cir.1986) (interpreting policy which provides coverage for occurrence that “results, during the policy period, in bodily injury”); Eagle-Picher Indus. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982) (manifestation triggers insurance coverage), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 1280, 75 L.Ed.2d 500 (1983). If persons exposed to asbestos fibers have a sufficient injury to warrant insurance coverage, they must have suffered a quantum of harm adequate to satisfy the constitutional case or controversy minimum of injury-in-fact. See generally In re Johns-Manville Corp., 36 B.R. 743, 750 (Bankr.S.D.N.Y.1984) (discussion of insurance cases), aff'd, 52 B.R. 940 (S.D.N.Y.1985). As the Seventh Circuit explained: Even in a “discovery” state the cause of action may “exist” before it “accrues”— that is before the statute of limitations on bringing it begins to run.... These states postpone the date of accrual of the cause of action not in order to prevent the"
},
{
"docid": "4506504",
"title": "",
"text": "summary judgment. See generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720, 27-28 (1983 & 1994 Supp.). Count 8, in part, seeks a declaration that the following three events trigger coverage under the applicable P & I policies: (1) exposure to asbestos; (2) “exposure-in-residenee” or “continuous trigger,” i.e., the cumulative period following initial exposure during which asbestos-related disease progresses; and (3) manifestation of asbestos-related disease. See Complaint at ¶ 82. All three examples reflect the variety of analyses employed to determine when coverage arises in asbestos litigation. See, e.g., Commercial Union Ins. Co. v. Sepco Corp., 765 F.2d 1543 (11th Cir.1985) (asbestos exposure triggers coverage); Eagle-Picher Indus. v. Liberty Mut. Ins. Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983) (manifestation of disease triggers coverage); and Keene Corp. v. Insurance Co. of N. Am., 667 F.2d 1034 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982) (inhalation exposure, exposure in residence and manifestation all trigger insurance coverage). In Prudential Lines, supra, 148 B.R. at 742, we confronted the trigger issue and concluded that New York law applies an “injury-in-fact” trigger: [W]e find that federal courts applying New York law adopt the “injury-in-fact” theory as triggering coverage under a CGL policy. See Maryland Casualty Co. v. W.R. Grace & Co., 794 F.Supp. 1206 (S.D.N.Y. 1991) (and cases cited therein). The injury-in-fact theory was first advanced in American Home Products Corp. v. Liberty Mut. Ins. Co., 565 F.Supp. 1485 (S.D.N.Y. 1983), aff'd as modified, 748 F.2d 760 (2d Cir.1984) (“AHP”). In AHP, Judge So-faer held that actual injury during the relevant policy period triggers coverage under New York law. In other words, at the time an injury actually occurs, the applicable policy is, in effect, triggered. It is of no consequence whether the injury has been discovered or not. According to AHP, “a real but undiscovered injury, proved in retrospect to have existed at the relevant time, would establish coverage, irrespective of the time the injury became [diagnosable].” AHP, 748 F.2d at 766"
},
{
"docid": "2121387",
"title": "",
"text": "insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury ... caused by an occurrence_ Definitions “Bodily injury” means bodily injury, sickness or disease sustained by any .person. “Occurrence” means an accident, including injurious exposure to conditions which results in bodily injury during the policy period neither expected nor intended from the standpoint of the insured. The “exposure theory” was first adopted by the Sixth Circuit in Insurance Co. of North America v. Forty-Eight Insulations, 633 F.2d 1212 (6th Cir.1980), clarified, 657 F.2d 814, cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981) as an interpretation of Illinois law. This theory was later adopted by the Fifth Circuit in Porter v. American Optical Corp., 641 F.2d 1128 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981) and by the Eleventh Circuit in Commercial Union Insurance Co. v. Sepco Corp., 765 F.2d 1543 (11th Cir.1985). Under the exposure theory, coverage is based solely on the claimant’s period of exposure to asbestos. If the exposure occurs during the policy period of more than one carrier, the coverage and defense obligations are to be apportioned pro rata among the carriers on the risk during any period of exposure. Proponents of this theory contend that bodily injury takes place at or shortly after exposure to asbestos. The “manifestation theory” was adopted by the First Circuit in Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983). Under this theory, coverage and defense obligations are not triggered until the occurrence insured against has manifested itself in such manner as to be medically detectable and diagnosable. Proponents of this theory assert that a court must focus on the word “disease” rather than bodily injury. They contend that asbestos-related diseases are undiagnosable until an individual has recognizable symptoms, which may be as long as 20 to 40 years after exposure if exposure actually produces a disease. A third or hybrid theory was stated by the D.C."
},
{
"docid": "6700606",
"title": "",
"text": "least with regard to the Travelers policies. Finally, it argues that the district court’s judgment was erroneous because it ignored disputed issues of material fact. ACandS argues that exposure and manifestation both constitute “bodily injury.” It also argues that asbestos-related disease is progressive, suggesting that tissue damage occurs continuously from exposure through manifestation, and that this “exposure-in-residence” is also “bodily injury.” Thus, in ACandS’ view, exposure, exposure-in-residence, and manifestation all trigger coverage. ACandS supports this position by arguing that the application of the policy language in this context is unclear, that Pennsylvania law applies, and that Pennsylvania law requires ambiguities in the application of insurance policies to be construed in favor of the insured. All parties agree, and it is evident from the policy language, that the trigger of coverage issue turns on the meaning of the phrase “bodily injury.” Analogous terms have been interpreted in the asbestos context in cases considering statutes of limitations, workmen’s compensation statutes, and health insurance policies. Those cases are not particularly relevant here, however, because the phrase operates differently in those contexts. For example, statutes of limitations have generally been interpreted to provide for manifestation of the disease as the time of “injury,” because to do otherwise would result in the barring of claims even before the plaintiffs knew of their existence. See Keene Corp. v. Insurance Company of North America, 667 F.2d 1034, 1043-44 (D.C.Cir.1981), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982). The phrase “bodily injury” has also been interpreted by four courts of appeals in this very context, i.e., on the issue of trigger of coverage under comprehensive general liability policies in asbestos-related personal injury actions. Those courts, under the rules of construction of various states, have arrived at a variety of interpretations. These interpretations include all of the positions espoused by the parties in this action. See Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12 (1st Cir.1982), cert. denied, 460 U.S. 1028, 103 S.Ct. 1280, 75 L.Ed.2d 500 (1983) (manifestation); Keene, 667 F.2d 1034 (exposure, exposure-in-residence, and manifestation); Porter v. American Optical Corp.,"
}
]
|
640199 | "on her arrest to detain her violated due process. The Government responds that (1) the Court lacks jurisdiction to review the IJ's discretionary decision to deny bond, (2) even if the Court finds jurisdiction Ms. Ortega has not exhausted administrative remedies, and (3) Ms. Ortega's petition does not state a due process violation. 1. Jurisdiction The Immigration and Nationality Act (""INA"") authorizes the detention of aliens awaiting removal from the United States. Different sections of the INA govern different phases of detention. It authorizes ""the Government to detain certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2)"" and ""aliens already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c)."" REDACTED The section at issue here is 1226(a). ""Section 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and detention of an alien pending a decision on whether the alien is to be removed from the United States."" Id. at 837 (internal quotations omitted). ""Except as provided in subsection (c) of this section, the Attorney General may release an alien detained under § 1226(a) on bond ... or conditional parole."" Id. (internal quotations omitted). To determine whether an immigrant who is detained under Section 1226(a) presents a flight risk or danger to the community immigration judges look to the factors set forth in Matter of Guerra , 24 I. & N. Dec." | [
{
"docid": "22492744",
"title": "",
"text": "Section 1226 generally governs the process of arresting and detaining that group of aliens pending their removal. As relevant here, § 1226 distinguishes between two different categories of aliens. Section 1226(a) sets out the default rule: The Attorney General may issue a warrant for the arrest and detention of an alien \"pending a decision on whether the alien is to be removed from the United States.\" § 1226(a). \"Except as provided in subsection (c) of this section,\" the Attorney General \"may release\" an alien detained under § 1226(a)\"on bond ... or conditional parole.\" Ibid. Section 1226(c), however, carves out a statutory category of aliens who may not be released under § 1226(a). Under § 1226(c), the \"Attorney General shall take into custody any alien\" who falls into one of several enumerated categories involving criminal offenses and terrorist activities. § 1226(c)(1). The Attorney General may release aliens in those categories \"only if the Attorney General decides ... that release of the alien from custody is necessary\" for witness-protection purposes and \"the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.\" § 1226(c)(2). Any release under those narrow conditions \"shall take place in accordance with a procedure that considers the severity of the offense committed by the alien.\" Ibid. In sum, U.S. immigration law authorizes the Government to detain certain aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the Government to detain certain aliens already in the country pending the outcome of removal proceedings under §§ 1226(a) and (c). The primary issue is the proper interpretation of §§ 1225(b), 1226(a), and 1226(c). B Respondent Alejandro Rodriguez is a Mexican citizen. Since 1987, he has also been a lawful permanent resident of the United States. In April 2004, after Rodriguez was convicted of a drug offense and theft of a vehicle, the Government detained him under § 1226 and sought to remove him from the country. At his removal hearing, Rodriguez argued both that he"
}
]
| [
{
"docid": "18053298",
"title": "",
"text": "thousands of Immigrants to the United States are detained while they await the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country. According to the most recently available statistics, over 429,000 detainees were held by U.S. Immigration and Customs Enforcement (“ICE”) over the course of fiscal year 2011; on average, over 33,000 were detained on any given day. As of late 2011, the Los Angeles Field Office of ICE oversaw the detention of over 2,000 aliens, the great majority of whom were not subject to a final order of removal. Id. at 1. This appeal concerns individuals detained in southern California for six months or longer under one of two federal immigration statutes. Section 1226(c) of Title 8 of the United States Code (“Section 1226(c)” or “§ 1226(c)”) subjects certain aliens who are deportable or inadmissible on account of their criminal history to mandatory detention pending proceedings to remove them from the United States. If an ICE official determines that an individual’s criminal history triggers application of § 1226(c), the alien is processed for detention. If the relevant ICE official is unsure whether § 1226(c) applies to a certain individual, he may consult an ICE attorney who is “embedded” in the field office. Detainees are permitted to ask an Immigration Judge to reconsider the applicability of mandatory detention, see 8 C.F.R. § 1003.19(h)(2)(ii), but such review is limited in scope and addresses only whether the individual’s criminal history falls within the statute’s purview. See generally In re Joseph, 22 I. & N. Dec. 799 (B.I.A.1999). Section 1225(b) of Title 8 (“Section 1225(b)” or “§ 1225(b)”), the other statute at issue here, applies to “applicants for admission,” such as those apprehended at the border or at a port of entry. The statute provides that “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained” for removal proceedings. 8 U.S.C. § 1225(b)(2)(A); see also 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (providing for mandatory detention of asylum seekers “pending a final"
},
{
"docid": "22492768",
"title": "",
"text": "of the inquiry; Congress obviously did not mean to allow aliens to feel free to leave once immigration officers asked their first question. In sum, §§ 1225(b)(1) and (b)(2) mandate detention of aliens throughout the completion of applicable proceedings and not just until the moment those proceedings begin. Of course, other provisions of the immigration statutes do authorize detention \"pending\" other proceedings or \"until\" a certain point. See post, at 870 - 871 (BREYER, J., dissenting) (quoting § 1225(b)(1)(B)(iii)(IV) ). But there is no \"canon of interpretation that forbids interpreting different words used in different parts of the same statute to mean roughly the same thing.\" Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 540, 133 S.Ct. 1351, 185 L.Ed.2d 392 (2013). We decline to invent and apply such a canon here. B While the language of §§ 1225(b)(1) and (b)(2) is quite clear, § 1226(c) is even clearer. As noted, § 1226 applies to aliens already present in the United States. Section 1226(a) creates a default rule for those aliens by permitting-but not requiring-the Attorney General to issue warrants for their arrest and detention pending removal proceedings. Section 1226(a) also permits the Attorney General to release those aliens on bond, \"[e]xcept as provided in subsection (c) of this section.\" Section 1226(c) in turn states that the Attorney General \"shall take into custody any alien\" who falls into one of the enumerated categories involving criminal offenses and terrorist activities. 8 U.S.C. § 1226(c)(1). Section 1226(c) then goes on to specify that the Attorney General \"may release\" one of those aliens \"only if the Attorney General decides\" both that doing so is necessary for witness-protection purposes and that the alien will not pose a danger or flight risk. § 1226(c)(2) (emphasis added). Like § 1225(b), § 1226(c) does not on its face limit the length of the detention it authorizes. In fact, by allowing aliens to be released \"only if\" the Attorney General decides that certain conditions are met, § 1226(c) reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances"
},
{
"docid": "18053297",
"title": "",
"text": "OPINION WARDLAW, Circuit Judge: Alejandro Rodriguez, Abdirizak Aden Farah, Jose Farias Cornejo, Yussuf Abdi-kadir, and Abel Perez Ruelas (“Appellees”) are the named plaintiffs representing a certified class of non-citizens who challenge their prolonged detention, pursuant to certain federal immigration statutes, without individualized bond hearings and determinations to justify their continued detention. The district court entered a preliminary injunction requiring the government to identify all class members de- tamed pursuant to 8 U.S.C. §§ 1226(c) and 1225(b) (the “1226(c) subclass” and “1225(b) subclass,” respectively), and to “provide each of them with a bond hearing before an Immigration Judge with power to grant their release.” Under the preliminary injunction, at the conclusion of each bond hearing, the Immigration Judge (“IJ”) “shall release each Subclass member on reasonable conditions of supervision, including electronic monitoring if necessary, unless the government shows by clear and convincing evidence that continued detention is justified based on his or her danger to the community or risk of flight.” The government appeals that order, and we affirm. . . I. At any given time, thousands of Immigrants to the United States are detained while they await the conclusion of administrative and judicial proceedings that will determine whether they may remain in this country. According to the most recently available statistics, over 429,000 detainees were held by U.S. Immigration and Customs Enforcement (“ICE”) over the course of fiscal year 2011; on average, over 33,000 were detained on any given day. As of late 2011, the Los Angeles Field Office of ICE oversaw the detention of over 2,000 aliens, the great majority of whom were not subject to a final order of removal. Id. at 1. This appeal concerns individuals detained in southern California for six months or longer under one of two federal immigration statutes. Section 1226(c) of Title 8 of the United States Code (“Section 1226(c)” or “§ 1226(c)”) subjects certain aliens who are deportable or inadmissible on account of their criminal history to mandatory detention pending proceedings to remove them from the United States. If an ICE official determines that an individual’s criminal history triggers application of §"
},
{
"docid": "5041758",
"title": "",
"text": "Immigration and Customs Enforcement (“ICE”) and asserts both that his mandatory detention is not statutorily authorized and that it violates the Due Process Clause of the Fifth Amendment of the Constitution. ■ Venue is proper because Mr. Nieto is in custody in Aurora, Colorado, which is within the geographical boundaries of the District of Colorado. 2. Exhaustion Ordinarily, petitioners are required to exhaust their administrative remedies prior to seeking a writ under § 2241. See Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir.1986) (per curiam). Respondents have not pursued the argument that Mr. Nieto’s claims are barred because he failed to exhaust his administrative remedies. Moreover, exhaustion of remedies is not required if exhaustion would be futile. Goodwin v. State of Okl., 923 F.2d 156, 157 (10th Cir.1991). Here, Mr. Nieto seeks a hearing and bond determination pursuant to 8 U.S.C. § 1226(a). Although such a determination was requested in immigration court, the immigration judge ruled simply that there was “no jurisdiction” and did not consider the matter further. (ECF No. 1, Ex. 3.) Mr. Nieto did not appeal that decision, because in his view, the Board of Immigration Appeals (“BIA”) had already “predetermined the issue before it.” (ECF No. 1 ¶ 24 (quoting Bell v. Wiley, 481 F.Supp.2d 1168, 1172 (D.Colo.2007)).) In light of the fact that the BIA had previously ruled that aliens in Mr. Nieto’s circumstances are subject to mandatory detention under 8 U.S.C. § 1226(c) and not entitled to individualized bond determinations, In re Rojas, 28 I. & N. Dec. 117 (BIA 2001) (“Rojas ”), the Court agrees that any appeal by Mr. Nieto would have been futile. 3. Statutory Framework Title 8 of the United States Code Section 1226 governs the pre-removal detention of an alien. Section 1226(a) authorizes immigration officials to arrest and to detain or release an alien pending a decision on whether the alien is to be removed from the United States. An alien has the right under § 1226(a) to a hearing before an immigration judge to determine whether he or she should be released on bond during the removal"
},
{
"docid": "2276876",
"title": "",
"text": "States, “except as provided iii” section 1226(c). 8 U.S.C. § 1226(a). Cruz argues that section 1226(c) does not apply to him because he was taken into custody well after he was released from custody — not “when ... released” from criminal confinement, as provided in section 1226(c). Pet. ¶ 5. Cruz also argues that his detention without a bond hearing violates his Fifth Amendment right to Due Process. Pet. ¶¶ 6, 39-42. II. SUBJECT MATTER JURISDICTION The INA deprives federal courts of jurisdiction to review the “Attorney General’s discretionary judgment” with regard to “detention or release of any alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C. § 1226(e). Although Respondents do not challenge the Court’s jurisdiction to review the Immigration Judge’s rejection of Petitioner’s request for a bond hearing, the Court is obligated to consider subject matter jurisdiction sua sponte. See Florida v. Thomas, 532 U.S. 774, 777, 121 S.Ct. 1905, 150 L.Ed.2d 1 (2001). In Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), the Supreme Court held that section 1226(e) does not bar habeas review of a challenge to the “statutory framework that permits detention without bail” found in 8 U.S.C. § 1226(c). The Court therefore proceeds to the merits of the petition. III. STATUTORY FRAMEWORK The mandatory detention provision of section 1226(c) is part of a section of the INA that governs the arrest and detention of aliens who are subject to removal from the United States. See generally 8 U.S.C. § 1226. Whether Cruz is subject to mandatory detention or entitled to a bond hearing turns on the interplay between sections 1226(a) and 1226(c). The general rule under section 1226(a) is that aliens arrested and charged with removal may be released on bond or conditional parole during the pendency of removal proceedings: (a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section"
},
{
"docid": "2276877",
"title": "",
"text": "the Supreme Court held that section 1226(e) does not bar habeas review of a challenge to the “statutory framework that permits detention without bail” found in 8 U.S.C. § 1226(c). The Court therefore proceeds to the merits of the petition. III. STATUTORY FRAMEWORK The mandatory detention provision of section 1226(c) is part of a section of the INA that governs the arrest and detention of aliens who are subject to removal from the United States. See generally 8 U.S.C. § 1226. Whether Cruz is subject to mandatory detention or entitled to a bond hearing turns on the interplay between sections 1226(a) and 1226(c). The general rule under section 1226(a) is that aliens arrested and charged with removal may be released on bond or conditional parole during the pendency of removal proceedings: (a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on — ■ (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole .... 8 U.S.C. § 1226(a) (emphasis added). Thus, in most cases, the Attorney General has discretion to determine whether an arrested alien should be detained or released on bond or conditional parole. That discretion is limited, however, “as provided in subsection (c).” Subsection (c) provides: (c) Detention of criminal aliens (1) Custody The Attorney General shall take into custody any alien who— (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence [sic] to a term of imprisonment"
},
{
"docid": "19710516",
"title": "",
"text": "436 n. 8, 124 S.Ct. 2711, a “majority of district courts in this Circuit have applied the immediate custodian rule to habeas petitions filed by incarcerated aliens challenging their physical detentions prior to deportation,” Santana v. Muller, No. 12 Civ. 430(PAC), 2012 WL 951768, at *2 (S.D.N.Y. Mar. 12, 2012) (citations omitted). Therefore, Dominic Orsino, the warden of Orange County Jail, is likely the only proper respondent in this case, but in the exercise of caution, the Court will refrain from dismissing the other respondents until the July 2, 2013 hearing. II. Interpretation of Section 1226(c) Section 236 of the INA grants the Attorney General authority to detain any alien pending a decision on whether the alien is to be removed from the United States. Although this authority to detain is discretionary in certain circumstances, see 8 U.S.C. § 1226(a), detention is mandatory for aliens who have been convicted of certain enumerated offenses, including crimes involving a controlled substance, see 8 U.S.C. § 1226(c). Aliens detained pursuant to the discretionary detention provision may be afforded the opportunity for an individualized bond hearing before an IJ. 8 U.S.C. § 1226(a). Conversely, aliens detained pursuant to the mandatory detention provision are not eligible for a bond determination. 8 U.S.C. § 1226(c). Section 1226(c) provides in part: Detention of criminal aliens (1) Custody The Attorney General shall take into custody any alien who ... (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentence to a term of imprisonment of at least 1 year, or (D)is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned"
},
{
"docid": "20379017",
"title": "",
"text": "Chief Judge Kane’s decision in Thomas v. Hogan, [No. 1:08-CV-0417,] 2008 WL 4793739 (M.D.Pa. Oct. 31, 2008), factually analogous and persuasive. I adopt her reasoning as to why the mandatory detention provision of IIRIRA does not apply to aliens released from custody in circumstances similar to those of petitioner. Order of Dec. 1, 2008 at 1-2 (internal citation omitted). The Thomas decision cited by the court had relied on “a significant body of case law” holding that the Board’s position is contrary to the plain meaning of the statute. 2008 WL 4793739, at *4. The district court in this case therefore granted the writ and remanded to ICE with instructions to hold an individualized bond hearing within ten days. The Government now appeals, urging us to accept the agency construction of the statute. II. DISCUSSION At the heart of this appeal is an interpretation of the mandatory detention provision set forth at 8 U.S.C. § 1226(c). Section 1226(c), which is not retroactive, see IIRIRA § 303(b)(2) (stating that the 1996 amendments to the detention provisions apply to aliens “released after” the effective date, subject to statutory extensions of time), is part of a provision that addresses the apprehension and detention of aliens. It states, in relevant part: § 1226. Apprehension and detention of aliens (a) Arrest, detention, and release On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole; but (3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent resi dence or otherwise would (without regard to removal proceedings) be provided such authorization. (c) Detention of criminal aliens (1)"
},
{
"docid": "21358356",
"title": "",
"text": "petition: Bah seeks release from custody, arguing that his continued detention is unlawful under Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), which held that § 1231 (INA § 241) — the statutory provision governing detention of aliens subject to removal orders — does not authorize indefinite detention. See also Clark v. Martinez, 543 U.S. 371, 378-79, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (holding that the Zadvydas analysis applies both to admitted aliens and to aliens seeking admission or paroled under § 1182). Bah further asserts that his continued detention violates his rights to substantive and procedural due process under the Fifth Amendment to the United States Constitution. Am. Pet. & Compl. ¶¶ 67-75. This Court has jurisdiction over Bah’s habeas petition under 28 U.S.C. § 2241. 1. Law Governing Civil Detention of Aliens Two different statutory provisions govern the civil detention of aliens who are involved in immigration proceedings. As this case illustrates, these two provisions can interact in complex ways. The first provision, § 1226, generally governs detention before and during immigration proceedings. Section 1226(c) requires the government to detain certain criminal aliens and restricts the government’s ability to release aliens detained under that section. Section 1226(a) allows the government, at its discretion, to detain all other aliens pending decisions on their removal. The second provision, § 1231, governs detention of aliens who have been “ordered removed.” Id. § 1231(a). In other words, while § 1226 generally governs detention before and during immigration proceedings, § 1231 generally governs detention after immigration proceedings. Section 1231(a)(1)(A) defines a 90-day “removal period” during which the government (under § 1231(a)(2)) must detain any alien ordered removed and (under § 1231(a)(1)(A) itself) must remove that alien. The parties have focused their arguments on § 1231 detention. Because the government may, for various reasons, be unable to remove an alien within 90 days of when an IJ first orders the alien’s removal, § 1231 provides three different ways in which an alien’s detention can be lawfully extended beyond the 90-day removal period: First, although § 1231(a)(1)(A) directs the"
},
{
"docid": "18053345",
"title": "",
"text": "to comply with Rule 52(a) does not require reversal unless a full understanding of the question is not possible without the aid of separate findings.” FTC v. Enforma Natural Prods., Inc., 362 F.3d 1204, 1212 (9th Cir.2004). In general, we will remand only “where a district court’s findings and conclusions supporting the preliminary injunction are not sufficient to permit meaningful review.” Id. Here, by virtue of Appellees’ membership in the subclasses at issue, the relevant facts are inherently undisputed: Each Appellee has been held for at least six months under one of the pertinent immigration detention statutes without an opportunity to contest his detention in a bond hearing. As the government concedes, \"[tjhis case presents, at its core, a question of statutory and constitutional interpretation that does not turn on the facts of any individual Petitioner.” . The government offers no reason why meaningful review is not possible on the current record. . Section 1226(a) provides: On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this Section and pending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole; but (3)may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization. . Section 1231(a)(6) permits the continued detention, beyond the 90-day statutory removal period that begins when a removal order becomes final, of \"inadmissible aliens, criminal aliens, aliens who have violated their nonimmigrant status conditions, and aliens removable for certain national security or foreign relations reasons, as well as any alien ‘who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the"
},
{
"docid": "20530642",
"title": "",
"text": "to Dismiss. (Dkt. No. 13.) On October 23, 2013, 2013 WL 5774843, this court granted Plaintiffs individual habeas petition, denied without prejudice Plaintiffs Motion for a Preliminary Injunction, and denied Defendants’ Motion to Dismiss. This memorandum provides a more detailed explanation of the court’s reasoning. II. BACKGROUND As the facts of this case can only be understood in the context of the statute, a brief discussion of the law is necessary before laying out the factual background. A. Statutory Framework Section 1226 of Title 8 governs the detention of noncitizens during immigration removal proceedings. Sub-section (a) provides discretionary authority to the government to take an alien into custody while a decision on removal is pending. A non-citizen detained under § 1226(a) is entitled to an individualized bond hearing to determine whether release pending removal is appropriate. 8 C.F.R. §§ 1003.19 & 1236.1(d); Matter of Guerra, 24 I. & N. Dec. 37, 37-38 (BIA 2006). Sub-section (a) provides: On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General, or (B) conditional parole; but (3) may not provide the alien with work authorization (including an “employment authorized” endorsement or other appropriate work permit), unless the alien is lawfully admitted for permanent residence or otherwise would (without regard to removal proceedings) be provided such authorization. 8 U.S.C. § 1226(a) (emphasis added). Sub-section (c) of the law eliminates this discretion with respect to certain non-citizens. This provision requires detention pending removal, and, unlike sub-section (a), it does not explicitly provide for individualized bond hearings. Sub-section (c) reads as follows: (1) Custody The Attorney General shall take into custody any alien who— (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2)"
},
{
"docid": "2244762",
"title": "",
"text": "does not contest the Respondents’ authority to detain him pursuant to 8 U.S.C. § 1226(a). His argument is that his continued detention, without a hearing to determine if he will attend all court dates and not be a danger of the community, violates federal law and his constitutional rights. IV. Araujo-Cortes’ Statutory Argument Araujo-Cortes argues that he is entitled to a bond hearing because he is not subject to mandatory detention under § 1226(c). A. Statutory Framework In the Immigration and Nationality Act (“INA”), as amended, Congress has authorized two types of immigration detention during the pendency of removal proceedings. Generally, immigration detention is authorized by 8 U.S.C. 1226(a), which provides the Attorney General with discretion over whether to detain non-citizens or release them on a bond or conditional parole. See 8 U.S.C. § 1226(a)(1), (2). Congress has also created a system of mandatory detention for certain classes of non-citizens. Section 1226(c) provides for the mandatory detention of so-called “criminal aliens.” In adopting § 1226(c), Congress concluded that “discretionary release of non-citizens pending their removal hearings would lead to large numbers of deportable criminal non-citizens skipping their hearings and remaining at large in the United States unlawfully.” Demore v. Kim, 538 U.S. 510, 528, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Section 1226(c)(1) provides, in relevant part, that: The Attorney General shall take into custody any alien who [is removable on the basis of having committed certain criminal offenses], when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. 8 U.S.C. § 1226(c)(1). The Attorney General may release a § 1226(c)(1) detainee at the termination of his custody only under limited circumstances. See 8 U.S.C. § 1226(c)(2) (providing for release related to the non-citizen’s cooperation with a criminal investigation or status as a material witness). Generally speaking the statutory framework provides that a non-citizen, in custody because of a prescribed criminal offense, must continue to be detained by the Attorney General while removal proceedings"
},
{
"docid": "4633519",
"title": "",
"text": "see also McCarthy v. Madigan, 503 U.S. 140, 148, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). In this case, the BIA has determined that Mr. Louisaire’s 2004 conviction for simple drug possession requires mandatory detention during removal proceedings at any time after his release from his incarceration for that offense. 23 I. & N. Dec. 117, 127 (B.I.A.2001). Indeed, Respondents have previ ously detained Petitioner for over one year under § 1226(c)(1) on the exact same basis that Respondents claim applies now. See Resp. Opp. at 5. No new facts have arisen that would lead to a different result at this juncture. Since the outcome of Petitioner’s bond eligibility proceedings is a foregone conclusion, the Court will not require administrative exhaustion. See Monestime v. Reilly, 704 F.Supp.2d 453, 456-57 (S.D.N.Y.2010); Garcia, 615 F.Supp.2d at 179-80; see also Flores-Powell v. Chadbourne, 677 F.Supp.2d 455, 463-64 (D.Mass.2010); Hy v. Gillen, 588 F.Supp.2d 122, 125 (D.Mass.2008). The Mandatory-Detention Statute, INA § 236(c) ICE has authority to detain any alien pending a decision in removal proceedings, and has discretion to release some aliens. INA § 236(a), 8 U.S.C. § 1226(a). Aliens who have been convicted of certain enumerated offenses, however, including drug crimes, see id. §§ 1226(c)(1)(B), 1227(a)(2)(B), are subject to mandatory detention under INA § 236(c), which provides: (c) Detention of criminal aliens (1) Custody The Attorney General shall take into custody any alien who— (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title ... when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense. 8 U.S.C. § 1226(c)(1). The Attorney General has discretion to release such aliens from detention only in limited circumstances, not applicable here, upon a determination that release is necessary to protect a witness in a criminal matter. Id. § 1226(c)(2). Congress enacted this provision pursuant to section 303(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996"
},
{
"docid": "21760053",
"title": "",
"text": "begin any removal proceeding as expeditiously as possible after the date of the conviction.” 2.Detention pending removal proceedings — criminal aliens A noncitizen may be arrested and detained “[o]n a warrant issued by the Attorney ■ General.. .pending a decision' on whether the alien is to be removed from the United States.” § 1226(a). There are statutory rules regarding detention pending removal proceedings. The Attorney General may choose to detain a noncitizen pending proceedings, or “may release” her on a bond of at least $1,500 or on “conditional parole.” § 1226(a)(l)-(3). There are special rules for the detention, pending removal proceedings, of nonciti-zens who are deportable or inadmissible on criminal grounds. The Attorney General is required to detain any noncitizen who is inadmissible pursuant to § 1182(a)(2) (criminal grounds of inadmissibility, see infra) ' or § 1182(a)(3)(B) (terrorism grounds of inadmissibility), or who is de-portable pursuant to § 1227(a)(2)(A)(ii)-(iii), (B), (C), (D), (4)(B), or under § 1227(a)(2)(A)© on the basis of an offense for which she was sentenced to imprisonment of at least one year (this includes most but not all criminal and national security, grounds of deportability, see infra, 1226(c). The Attorney General may only release such an individual pending a removal decision if release is necessary to protect a witness to, or someone cooperating in the investigation of, major criminal activity. § 1226(c)(2); but see, Diop v. ICE/Homeland Sec., 656 F.3d 221, 223 (3d Cir. 2011) (1226(c) “authorizes only detention for a reasonable period of time,” after which due process “requires that the Government establish that continued detention is necessary to further the purposes of the detention statute.”) 3.Removal proceedings 8 U.S.C. § 1229 sets out the procedures attendant to the initiation of removal proceedings in immigration court; § 1229a sets out the rules governing these proceedings.- An Immigration Judge presides over removal proceedings and determines whether a noncitizen is removable. § 1229a(a)(l), (c)(1)(A). There are varying standards for these proceedings. When a noncitizen is subject to removal proceedings to determine deportability, the burden rests with the government to establish by clear and convincing evidence that she is"
},
{
"docid": "5041763",
"title": "",
"text": "to Mr. Nieto was never picked up by him. For the next seven years, there is no indication that immigration did anything to contact or arrest Mr. Nieto until January 2013. According to the Assistant United States Attorney, it simply “took a long time before they took steps to actually detain him.” (Id. at 10:06:04-10:06:08.) Mr. Nieto has been detained since January 18, 2013. (ECF No. 1 ¶ 6.) An immigration judge held a bond hearing for Mr. Nieto on January 29, 2013, but ruled that the immigration court lacked jurisdiction to adjudicate bond. (ECF No. 1, Ex. 3.) As a result, Mr. Nieto remains detained pending issuance of a final order of removal. III. ANALYSIS This case turns on the application of 8 U.S.C. § 1226 to Mr. Nieto. The parties dispute the meaning of 8 U.S.C. § 1226, which generally authorizes immigration officials to detain or release aliens pending their removal proceedings based on an individualized determination of danger and flight potential at a bond hearing. Subsection (c) of this statute presents an exception to this individualized release authority, identifying a class of criminal aliens who are subject to mandatory detention. Mr. Nieto argues that this exception does not apply to him because ICE failed to arrest and detain him “when” he was “released,” as he argues is required by subsection (c), and instead detained him a decade later. He also argues that his due process rights under the Fifth Amendment to the U.S. Constitution are being violated by his continued detention. Respondents argue that the “when ... released” provision of the statute is ambiguous, and that this Court should, under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“Chevron”), defer to the BIA’s interpretation of § 1226 as set forth in Rojas. Respondents alternatively argue that the “when ... released” language comprises a nonbinding deadline that does not compromise the government’s ability to detain Mr. Nieto under § 1226(c), even when that detention is seriously delayed. As to the constitutional claim, Respondents argue that Mr. Nieto’s"
},
{
"docid": "11801933",
"title": "",
"text": "parole. A. Statutory Scheme Under the original text of the INA, immigration authorities had the discretion to release any deportable alien on bond. Based on- evidence that immigration authorities’ “failure to remove deportable criminal aliens was [due to] the agency’s failure to detain those aliens during their deportation proceedings,” Congress amended the INA in 1988 to curb the Government’s discretion to release aliens who had been convicted of aggravated felonies. Demore v. Kim, 538 U.S. 510, 519, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (citing Pub.L. 100-690, 102 Stat. 4470). Congress expanded the definition of “aggravated felonies” in 1990. Id. (citing Pub.L. 101-649, 104 Stat. 5048). Then, based on reports suggesting “that detention of criminal aliens during their removal proceedings might be the best way to ensure their successful removal from this country,” id. at 521, 123 S.Ct. 1708, Congress enacted the mandatory detention provision codified at 8 U.S.C. § 1226(c). Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Under the current statutory scheme, “[ejxcept as provided in [§ 1226] subsection (c),” immigration officials continue to have the discretion to detain deportable aliens pursuant to § 1226(a) “pending a decision on whether the alien is to be removed from the United States.” Aliens detained pursuant to subsection (a) are eligible for bond hearings and conditional parole. § 1226(a)(2)(A)-(B). The mandatory detention provided by subsection (c) is the exception to the general rule described in subsection (a). Subsection (c) provides: (c) Detention of criminal aliens (1) Custody The Attorney General shall take into custody any alien who— (A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)© of this title on the basis of an offense for which the alien has been sentence 1 to a term of imprisonment of at least 1 year, or (D) is inadmissible under section 1182(a)(3)(B) of this title or deport-able under section 1227(a)(4)(B) of this title, when the alien is"
},
{
"docid": "2244761",
"title": "",
"text": "constitutional argument that application of the mandatory detention statute to him violates the Due Process clause before the BIA as the BIA “does not have jurisdiction to adjudicate constitutional issues,” United States v. Gonzalez-Roque, 301 F.3d 39, 48 (2d Cir.2002), and Araujo-Cortes’ constitutional claim is not predicated on procedural errors which could be corrected by the BIA, cf. id. Additionally, requiring Araujo-Cortes to appeal to the BIA before I adjudicate his habeas petition would have the effect of prolonging his detention without the possi-. bility of an application for a bond hearing. This is the very harm that Araujo-Cortes is trying to avoid. Accordingly, it is appropriate for the Court to review the lawfulness of Araujo-Cortes’ detention at this time, notwithstanding the fact that he has not completely exhausted his administrative remedies. III. Habeas Relief To obtain habeas relief pursuant to 28 U.S.C. § 2241, a petitioner must demonstrate that he is being detained “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). In this ease, Araujo-Cortes does not contest the Respondents’ authority to detain him pursuant to 8 U.S.C. § 1226(a). His argument is that his continued detention, without a hearing to determine if he will attend all court dates and not be a danger of the community, violates federal law and his constitutional rights. IV. Araujo-Cortes’ Statutory Argument Araujo-Cortes argues that he is entitled to a bond hearing because he is not subject to mandatory detention under § 1226(c). A. Statutory Framework In the Immigration and Nationality Act (“INA”), as amended, Congress has authorized two types of immigration detention during the pendency of removal proceedings. Generally, immigration detention is authorized by 8 U.S.C. 1226(a), which provides the Attorney General with discretion over whether to detain non-citizens or release them on a bond or conditional parole. See 8 U.S.C. § 1226(a)(1), (2). Congress has also created a system of mandatory detention for certain classes of non-citizens. Section 1226(c) provides for the mandatory detention of so-called “criminal aliens.” In adopting § 1226(c), Congress concluded that “discretionary release of non-citizens pending their removal"
},
{
"docid": "14420931",
"title": "",
"text": "The government also challenges the portion of the order respecting the Attorney General’s discretion to grant parole within the United States. The Attorney General is vested with broad powers over the custody of all aliens (including LPR’s) against whom deportation or exclusion proceedings are pending. “[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(A). Where such an alien “is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(C). Alternatively, instead of paroling the individual out of the United States, [o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.... [P]ending such decision, the Attorney General— (1) may continue to detain the arrested alien; and (2) may release the alien on— (A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or (B) conditional parole. 8 U.S.C. § 1226(a). The plaintiffs argue that, pursuant to Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), due process requires the INS to provide an LPR with notice of his right to parole within the United States and with a parole hearing before the Attorney General decides how to exercise her discretion. Congress, however, has denied the district court jurisdiction to adjudicate deprivations of the plain tiffs’ statutory and constitutional rights to parole. The plaintiffs respond that the Attorney General’s parole authority at issue in this case is found not in 8 U.S.C. § 1226, but instead in 8 U.S.C. § 1225(b)(2)(C). Therefore, they argue, the bar on judicial review contained in §"
},
{
"docid": "2276875",
"title": "",
"text": "was arrested on September 30, 2014, before the expiration of his supervised release, and, on October 9, 2014, was transferred to ICE custody. Pet. ¶ 18. The day of his transfer, an ICE officer determined that Cruz would be detained without a bond hearing during the pendency of removal proceedings pursuant to section 1226 of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1226. Resp’t Ex. E. An Immigration Judge reviewed Cruz’s request for a change in custody status and, on December 10, 2014, denied that request because, he said, section 1226(c) mandated detention pending removal. Resp’t Ex. F. • Cruz petitioned for a writ of habeas corpus and argues that he is entitled to an individualized bond hearing pursuant to section 1226(a) to determine whether he should be released pending a removal determination. Pet. ¶¶ 7, 52 (Dkt. 4); see 8 U.S.C. § 1226(a). Section 1226(a) grants the Attorney General discretion to release an alien on bond or conditioned parole pending a decision whether the alien is to be removed from the United States, “except as provided iii” section 1226(c). 8 U.S.C. § 1226(a). Cruz argues that section 1226(c) does not apply to him because he was taken into custody well after he was released from custody — not “when ... released” from criminal confinement, as provided in section 1226(c). Pet. ¶ 5. Cruz also argues that his detention without a bond hearing violates his Fifth Amendment right to Due Process. Pet. ¶¶ 6, 39-42. II. SUBJECT MATTER JURISDICTION The INA deprives federal courts of jurisdiction to review the “Attorney General’s discretionary judgment” with regard to “detention or release of any alien or the grant, revocation, or denial of bond or parole.” 8 U.S.C. § 1226(e). Although Respondents do not challenge the Court’s jurisdiction to review the Immigration Judge’s rejection of Petitioner’s request for a bond hearing, the Court is obligated to consider subject matter jurisdiction sua sponte. See Florida v. Thomas, 532 U.S. 774, 777, 121 S.Ct. 1905, 150 L.Ed.2d 1 (2001). In Demore v. Kim, 538 U.S. 510, 517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003),"
},
{
"docid": "5041759",
"title": "",
"text": "Mr. Nieto did not appeal that decision, because in his view, the Board of Immigration Appeals (“BIA”) had already “predetermined the issue before it.” (ECF No. 1 ¶ 24 (quoting Bell v. Wiley, 481 F.Supp.2d 1168, 1172 (D.Colo.2007)).) In light of the fact that the BIA had previously ruled that aliens in Mr. Nieto’s circumstances are subject to mandatory detention under 8 U.S.C. § 1226(c) and not entitled to individualized bond determinations, In re Rojas, 28 I. & N. Dec. 117 (BIA 2001) (“Rojas ”), the Court agrees that any appeal by Mr. Nieto would have been futile. 3. Statutory Framework Title 8 of the United States Code Section 1226 governs the pre-removal detention of an alien. Section 1226(a) authorizes immigration officials to arrest and to detain or release an alien pending a decision on whether the alien is to be removed from the United States. An alien has the right under § 1226(a) to a hearing before an immigration judge to determine whether he or she should be released on bond during the removal process. There is an exception to this broad authority given to immigration officials to release an alien on bond following a hearing as § 1226(a), by its plain terms, applies in all circumstances “[ejxcept as provided in subsection (c) of this section.” This exception, subsection (c), authorizes mandatory detention of certain aliens without a bond hearing. And the mandatory detention 'authorized by subsection (c) itself contains an extremely limited exception in witness protection circumstances not applicable in this case. Section 1226(c) provides in part: Detention of criminal aliens (1) Custody The Attorney General shall take into custody any alien who— (A)is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title, (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title, (C) is deportable under section 1227(a)(2)(A)® of this title on the basis of an offense for which the alien has been sentence to a term of imprisonment of at least 1 year, or (D) is inadmissible under"
}
]
|
589285 | other factors, whether state law issues predominated in the underlying dispute over partnership accounting, whether judicial economy would be served by remand, and whether the proceeding likely was commenced in a particular forum because of forum shopping by one of the parties. See Rahl v. Bande, 316 B.R. 127, 135 (S.D.N.Y.2004). The Court concluded that equitable remand was warranted. In its motion for reconsideration, Defendants’ primary argument is that the Court erred in characterizing the underlying claim for a partnership accounting as a non-core proceeding. Defendants rely on an Eastern District of Pennsylvania decision, Shared Network, to support their argument that this Court must transfer the case because the underlying dispute involves a core issue. REDACTED The Shared Network decision does not alter our analysis. To begin, we note that the case is not binding on this Court and thus does not satisfy Defendants’ burden to point to controlling case law or facts in its reconsideration motion. Furthermore, although one factor influencing the Shared Network court’s denial of remand was the filing of a proof of claim in bankruptcy court, which Plaintiffs have also filed in this case, other significant factors influenced the Shared Network decision that are not present in this case. Unlike the parties in this case, the parties in Shared Network agreed that their claims and counterclaims were core proceedings. 309 B.R. at 451. No such agreement exists in this case. The Shared Network court | [
{
"docid": "21745670",
"title": "",
"text": "following non-inclusive factors: the effect on the efficient administration of the bankruptcy estate; the extent to which issues of state law predominate; the difficulty or unsettled nature of applicable state law; comity; the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; the existence of a right to a jury trial; and, prejudice to the involuntarily removed defendants. In re U.S. Physicians, Inc., 2001 WL 793271, *2 (E.D.Pa. July 12, 2001) (citing McCormick, 1999 WL 1051776, at *2). See also In re RBGSC Investment Corp., 253 B.R. 369, 377-78 (E.D.Pa.2000); In re Pacor, 72 B.R. at 931. Shared Network argues that comity, the right to a jury trial, and the predominance of state law issues all militate in favor of remand. WorldCom contends that the effect on the efficient administration of the estate, the degree of relatedness of the bankruptcy and state court proceedings, and the waiver by Shared Network of its right to a jury trial by subjecting itself to the equitable administration of the bankruptcy court all support denying Shared Network’s remand motion and transferring the entire action to the Southern District of New York. As stated above, the parties agree that the claims and originally filed counterclaim in the state court action constitute “core proceedings.” See 28 U.S.C. § 157. “Thus, it is clear that [the claims and counterclaims are] ... quite related to the bankruptcy and also that remand would impede the efficient administration of the bankrupt estate.” In re RBGSC Investment Corp., 253 B.R. at 382; see also In re Consol. Lewis Inv. Corp., 78 B.R. 469, 477 (Bankr.M.D.La.1987). Because the state court action was voluntarily and temporarily stayed, Shared Network’s proof of claim and WorldCom’s objection thereto in the bankruptcy court are just as far along in the litigation process as the state court action. The remand and subsequent delay would negatively affect the efficient administration of WorldCom’s bankruptcy estate. In addition, the lack of complexity of the applicable state law for breach of contract, quantum meruit, and unjust enrichment, together with “the absence of any special state interest ..."
}
]
| [
{
"docid": "20655314",
"title": "",
"text": "claim that could not be finally adjudicated by a Bankruptcy Court. Intel, 502 B.R. at 377. Judge Peck ruled in Intel’s favor. He dismissed the bankruptcy claims and concluded that the breach-of-contract claim was non-core. Id. at 381-82, 383. Intel filed the present motion to withdraw the reference to the Bankruptcy Court on January 15, 2014. II. In relevant part, 28 U.S.C. § 157(d) provides: “The district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown.” While the statute does not define the phrase “for cause,” courts have focused on considerations of judicial economy and uniformity in the administration of bankruptcy law. See, e.g., Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures Corp.), 4 F.3d 1095, 1101 (2d Cir.1993). Under the framework established by the Court of Appeals for the Second Circuit, the threshold question is whether the case involves a core or non-core proceeding, “since it is upon this issue that questions of efficiency and uniformity will turn.” Id. After the District Court “makes the core/non-core determination, it should weigh questions of efficient use of judicial resources, delay and costs to the parties, uniformity of bankruptcy administration, the prevention of forum shopping, and other related factors,” such as the presence of a jury demand. Id.; see also Schneider v. Riddick (In re Formica Corp.), 305 B.R. 147, 149-50 (S.D.N.Y.2004). The moving party bears the burden of demonstrating that permissive withdrawal of the reference is warranted. Nisselson v. Salim (In re Big Apple Volkswagon, LLC), No. 12 Civ. 92, 2013 WL 1245548, at *3 (S.D.N.Y. Mar. 25, 2013). A. In its December 19, 2013 Opinion, the Bankruptcy Court dismissed Counts II and III of the Complaint and ruled that the only remaining claim is non-core. There is no dispute that the Bankruptcy Court would not have constitutional authority to enter final judgment on .the remaining claim. The Bankruptcy Court may nevertheless hear the case in the first instance and recommend proposed findings of fact and conclusions"
},
{
"docid": "4563254",
"title": "",
"text": "Equitable Remand Alternatively, the movants have asked the Court to consider (1) whether it ought to abstain from hearing the removed claims, and (2) whether it ought to remand them from whence they came. That argument is premised on the doctrines of permissive abstention and equitable remand. Both the decision to abstain or remand are within the sound discretion of the Court. See In re Asousa Partnership, 276 B.R. 55, 75 (Bankr.E.D.Pa.2002); In re Raymark Industries, 238 B.R. 295, 299 (Bankr.E.D.Pa.1999). Common Elements The analyses for determining whether a court ought to abstain and whether the equities support remand share a number of factors. In Best, supra, Judge Fox observed that a “consensus” position has emerged in this District as to the factors for determining permissive abstention: (1) the effect on the efficient administration of the estate; (2) the extent to which state law issues predominate over bankruptcy issues; (3) the difficulty or unsettled nature of applicable state law; (4) the presence of a related proceeding commenced in state court or other non-bankruptcy court; (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334; (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (7) the substance rather than the form of an asserted “core” proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden on the court’s docket; (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; and (12) the presence of non-debtor parties. Best, supra, at 17 quoting Gilbert v. Ben Franklin Hotel Associates, 1995 WL 598997 *1 (E.D.Pa.) Five of those factors are to be considered in determining whether equitable remand is warranted: the effect on the efficient administration of the bankruptcy estate; the extent to which issues of state law predominate; the difficulty or unsettled nature of applicable state law; comity; the degree of relatedness or"
},
{
"docid": "21745661",
"title": "",
"text": "should exercise its equitable authority to remand and/or abstain under § 1452(b) or § 1334(c)(1). In 2002, WorldCom and certain of its subsidiaries commenced proceedings under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., in the Southern District of New York where they have been consolidated and are being jointly administered. On January 22, 2003, Shared Network filed a proof of claim in the amount of $507,671.20 in the bankruptcy court in that district. This is essentially the same claim that is the subject of the complaint originally filed in the state court. On January 13, 2004, WorldCom filed an objection to the proof of claim and asserted virtually the same counterclaim in the bankruptcy court which it had filed against Shared Network in the Montgomery County action. WorldCom seeks $884,512.08. Three days later, WorldCom removed the state court action to this court. I. We must first determine whether WorldCom’s removal of Shared Network’s state court action was timely. Under § 1452(a), “[a] party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.” Section 1334(b) provides that “the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under Title 11, or arising in or related to cases under Title 11.” § 1334(b). The federal court has original jurisdiction over WorldCom’s bankruptcy, which arises under Title 11. In addition, Shared Network’s state court claims and WorldCom’s counterclaim are “related to” the bankruptcy proceeding because the outcome of the state court claims “could conceivably have [an] effect on the estate being administered in bankruptcy.” In re Marcus Hook Development Park, Inc., 943 F.2d 261, 264 (3d Cir.1991) (citations omitted). Concededly, each is a core proceeding which may be heard and determined by a bankruptcy judge. See 28 U.S.C. § 157. Shared Network maintains that World-Com waived its right to remove by failing to do so within 30"
},
{
"docid": "21745674",
"title": "",
"text": "could make the trial easy, expeditious, or inexpensive,” court congestion, and local interests. Here, we find the overwhelmingly significant factor, outweighing all others, is the judicial economy to be achieved in having the entire controversy decided in one forum, in this case the bankruptcy court which is already administering the World-Com bankruptcy. If we ruled otherwise, it is inevitable that proceedings will be delayed and to some extent duplicated for a tremendous waste of time and money for all concerned. Having the Southern District of New York as the venue is particularly compelling since Shared Network has filed a proof of claim against WorldCom in the bankruptcy court in that district, WorldCom has filed a counterclaim against Shared Network there, and all agree that the claims and counterclaim are core proceedings so that they may be adjudicated before the presiding bankruptcy judge. We will grant the motion to transfer. IV. In sum, we will deny the motion of Shared Network to remand to the Court of Common Pleas of Montgomery County and grant the motion of WorldCom to transfer venue to the Southern District of New York. ORDER AND NOW, this 19th day of April, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that: (1) the motion of Shared Network Users Group, Inc. to remand to the Court of Common Pleas of Montgomery County, Pennsylvania is DENIED; (2) the motion of WorldCom Technologies, Inc., and MCI WorldCom, Inc. to transfer venue to the Southern District of New York is GRANTED; and (3) the Clerk is directed to transmit the file in this action to the United States District Court for the Southern District of New York. . As will be discussed later in this Memorandum, § 1334(c)(1) provides for permissive or discretionary abstention, allowing a district court to abstain in the interests of comity or out of respect for state law. . WorldCom, in its memorandum of law in opposition to Shared Network's motion for remand and in support of its motion to transfer venue, states that the bankruptcy court has already set a"
},
{
"docid": "20228233",
"title": "",
"text": "Center Cleaning Co., Inc. v. Reginella Corp., 140 B.R. at 375; In re Asoma Partnership, 276 B.R. at 75. Moreover, core claims as well as non-core claims are subject to permissive abstention. See, e.g., In re Best Reception Systems, Inc., 220 B.R. 932, 952 (Bankr.E.D.Tenn.1998). One court has noted that discretionary abstention involves equitable factors similar to those involved in applying the equitable remand provisions of section 1452(b). “Pursuant to these statutes \\i.e., 28 U.S.C. §§ 1334(c)(1), 1452(b)], in considering whether equity requires abstention and remand, courts assess (1) the effect on the efficient administration of the bankruptcy estate, (2) the extent to which issues of state law predominate, (3) the difficulty or unsettled nature of the applicable state law, (4) comity, (5) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (6) the existence of a right to a jury trial, and (7) prejudice to the involuntarily removed defendants .... ” In re RBGSC Inv. Corp., 253 B.R. 369, 381-82 (E.D.Pa.2000), overruled in part on other grds., In re Exide Technologies, 544 F.3d 196, 220 (3d Cir.2008); see also Shared Network Users Group, Inc. v. WorldCom Technologies, Inc., 309 B.R. 446, 451 (E.D.Pa.2004). Because I concluded above that the removed ejectment proceeding should be remanded to state court, the relief sought by Mr. Best in Count I of his amended complaint would parallel his affirmative defenses in that state court litigation. In considering whether discretionary abstention as to the declaratory judgment in Count I is warranted in these circumstances, I note that when parallel litigation is pending in both state and federal courts, abstention may be appropriate under Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), owing to considerations of “ Svise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” The courts considering abstention under Colorado balance six factors: “(1) which court first assumed jurisdiction over property involved, if any; (2) the relative convenience of the fora; (3) the desirability of avoiding piecemeal litigation; (4) the"
},
{
"docid": "21745660",
"title": "",
"text": "MEMORANDUM BARTLE, District Judge. In March, 2000, plaintiff Shared Network Users Group, Inc. (“Shared Net work”) instituted this action in the Court of Common Pleas of Montgomery County, Pennsylvania for breach of contract and for violation of the Communications Act of 1934, 47 U.S.C. §§ 201-02. Shared Network sought to enjoin defendants World-Com Technologies, Inc. and MCI World-Com, Inc. (collectively, “WorldCom”) from carrying out their threat to disconnect the telecommunication services they were providing to Shared Network. Shared Network also requested damages. WorldCom counterclaimed for amounts due under their contract, quantum meruit, and unjust enrichment. Almost four years later, on January 16, 2004, WorldCom removed the action to this court pursuant to Rule 9027 of the Federal Rules of Bankruptcy Procedure and 28 U.S.C. §§ 1334, 1441(b), and 1452(a). WorldCom has moved to transfer venue to the United States District Court for the Southern District of New York under 28 U.S.C. § 1412. Shared Network has moved to remand to the state court on the ground that removal was untimely or alternatively that the court should exercise its equitable authority to remand and/or abstain under § 1452(b) or § 1334(c)(1). In 2002, WorldCom and certain of its subsidiaries commenced proceedings under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq., in the Southern District of New York where they have been consolidated and are being jointly administered. On January 22, 2003, Shared Network filed a proof of claim in the amount of $507,671.20 in the bankruptcy court in that district. This is essentially the same claim that is the subject of the complaint originally filed in the state court. On January 13, 2004, WorldCom filed an objection to the proof of claim and asserted virtually the same counterclaim in the bankruptcy court which it had filed against Shared Network in the Montgomery County action. WorldCom seeks $884,512.08. Three days later, WorldCom removed the state court action to this court. I. We must first determine whether WorldCom’s removal of Shared Network’s state court action was timely. Under § 1452(a), “[a] party may remove any claim or cause of"
},
{
"docid": "814190",
"title": "",
"text": "case can be timely adjudicated in state court. 28 U.S.C. § 1334(c)(2). Plaintiffs-Appellants have demonstrated that each of these criteria is satisfied in this case. PlaintiffsAppellees filed a timely motion for remand in the bankruptcy court. The Adversary Complaint involves state law issues that do not arise under Title 11 and do not involve administrative matters that arise only in bankruptcy cases. Plaintiffs-Appellees have offered affidavits in the Bankruptcy Court demonstrating that there is no diversity of citizenship, and there is no suggestion that any significant delays will be incurred if this action is remanded to the Illinois State Court. Accordingly, the principles of mandatory abstention support the Bankruptcy Court’s decision to abstain and remand this action to the Illinois State Court. With respect to permissive abstention, courts flexibly apply a variety of factors including (1) the effect or lack thereof on the efficient administration of the case; (2) the extent to which state law issues predominate over bankruptcy issues; (3) the difficulty or unsettled nature of the law; (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court; (5) the jurisdictional basis, if any, other than 1334; (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (7) the substance rather than form of an asserted core proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden of the bankruptcy court’s docket; (10) the likelihood of the commencement of the proceedings in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; and (12) the presence in the proceeding of non-debtor parties, 28 U.S.C. 1334(c)(1); see e.g. In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 6 F.3d 1184, 1189 (7th Cir.1993); Hopkins v. Plant Insulation Co., 342 B.R. 703, 710-711 (D.Del. 2006). In this case, the Plan has already been confirmed and the shares of the Reorganized Debtor transferred, and therefore, the administration of the"
},
{
"docid": "4563255",
"title": "",
"text": "the jurisdictional basis, if any, other than 28 U.S.C. § 1334; (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (7) the substance rather than the form of an asserted “core” proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden on the court’s docket; (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; and (12) the presence of non-debtor parties. Best, supra, at 17 quoting Gilbert v. Ben Franklin Hotel Associates, 1995 WL 598997 *1 (E.D.Pa.) Five of those factors are to be considered in determining whether equitable remand is warranted: the effect on the efficient administration of the bankruptcy estate; the extent to which issues of state law predominate; the difficulty or unsettled nature of applicable state law; comity; the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; the existence of a right to a jury trial; and, prejudice to the involuntarily removed defendants. In re U.S. Physicians, Inc., 2001 WL 793271, *2 (E.D.Pa. July 12, 2001) (citing McCormick v. Kochar, 1999 WL 1051776, at *2 (E.D.Pa.Nov.19, 1999)). See also In re RBGSCInv. Corp., 253 B.R. 369, 377-78 (E.D.Pa.2000) overruled on other grounds, 544 F.3d 196 (3d Cir.2008) At least one Court has applied the same seven factors listed above to determine both discretionary abstention and equitable remand. See Shared Network Users Group, Inc. v. WorldCom Technologies, Inc., 309 B.R. 446, 451 (E.D.Pa.2004) That the two doctrines follow a similar analysis comes as no surprise considering when they are raised in the procedural scheme: at the outset of the removal of the litigation to the federal court. What this means for practical purposes is that the Court may undertake one analysis to determine whether both permissive abstention and equitable remand are warranted. The most that can be said in support of the movants’ request"
},
{
"docid": "16986482",
"title": "",
"text": "determine that claim. The Court stated that “the determinative factor as to the bankruptcy court’s jurisdiction in this case is that the [plaintiff] filed a proof of claim resulting in adversary proceeding that involved ‘the allowance or disallowance of claims against the estate.’ ” Id. at 705 (quoting 28 U.S.C. § 157(b)(2)(B)). By filing a proof of claim, Tallo rendered his claims core proceedings and “necessarily became a party under the [bankruptcy] court’s core jurisdiction.” Id. That Tallo may have been forced by procedural rules to file his claim to avoid losing it is irrelevant. Id. at 706-07; In re Iridium Operating LLC, 285 B.R. 822, 833 (S.D.N.Y.2002). In addition to rendering claims core proceedings, the filing of the proof of claim is a prerequisite to the allowance or disallowance of a claim by the bankruptcy court. In re Francis, 15 B.R. 998, 1003 (Bankr.E.D.N.Y.1981); 4 Collier on Bankruptcy ¶ 501.01[2][a] (15th ed.2004). “The filing of the proof of claim invokes the special rules of bankruptcy concerning objections to the claim, estimation of the claim for allowance purposes, and the rights of the claimant to vote on the proposed distribution.” In re Manville Forest Prod. Corp., 896 F.2d 1384, 1389-90 (2d Cir.1990). Unlike non-core proceedings, the bankruptcy court has the power to enter its own orders, without consent of the parties with respect to matters within its core jurisdiction. 28 U.S.C. § 157; Cent. Vt. Pub. Serv. Corp. v. Herbert, 341 F.3d 186, 190 (2d Cir.2003). Although the determination that proceedings with respect to Tallo’s claims are within the core of bankruptcy jurisdiction does not foreclose the application of the doctrine of discretionary remand, it is a factor weighing in favor of adjudicating the dispute in the bankruptcy court. See Shared Network Users Group, Inc. v. WorldCom Tech., Inc., 309 B.R. 446, 452 (E.D.Pa.2004) (that plaintiff had filed a proof of claim in bankruptcy court provides a compelling reason to transfer case removed from state court to bankruptcy court); Scherer v. Carroll, 150 B.R. 549, 551 (D.Vt.1993) (stating that prior discretionary remand was in part because plaintiff had not filed"
},
{
"docid": "21745672",
"title": "",
"text": "weigh[ ] strongly against abstention.” In re U.S. Physicians, 2001 WL 793271, at *2; see also In re Sun West Distributors, 69 B.R. 861, 867 (Bankr.S.D.Cal.1987). Shared Network argues that its right to a jury trial will be unfairly lost if it is forced to litigate in bankruptcy court. We are not convinced. Shared Network has voluntarily subjected itself to the equitable jurisdiction of the bankruptcy court by filing its proof of claim there. See In re Asousa Partnership, 276 B.R. 55, 66 (Bankr.E.D.Pa.2002). It could have moved to terminate the automatic stay on the state court action if it had been interested in expeditiously resolving the dispute in state court before a jury. It did not do so. In light of the above analysis, we find that neither permissive abstention nor equitable remand is appropriate. Accordingly, we will deny Shared Network’s motion to remand this action to the Court of Common Pleas of Montgomery County. III. Finally, we turn to WorldCom’s motion to transfer venue to the Southern District of New York. Under 28 U.S.C. § 1412, “a district court may transfer a case or proceeding under Title 11 to a district court for another district, in the interest of justice or for the convenience of the parties.” Our Court of Appeals has outlined the factors to consider under 28 U.S.C. § 1404(a) in Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir.1995). Since much of the essential wording of § 1412 is similar to § 1404(a), we view the reasoning of Jumara to be applicable here, taking into consideration the particular circumstances arising out of a bankruptcy. While there is no exclusive list of factors, there are a variety of private and public interests to be considered in deciding a motion to transfer venue. The private interests include not only the debtor’s choice of forum but also the convenience of the parties as indicated by the physical and financial condition and the location of books and records. The public interests, on the other hand, include such matters as the enforcement of any judgment, “practical considerations that"
},
{
"docid": "21745669",
"title": "",
"text": "state court action, removal of the related WorldCom counterclaim was also timely. Accordingly, we have jurisdiction over both Shared Network’s state court claims and WorldCom’s counterclaim. II. Having determined that removal of the entire action was timely, we must now decide whether we should refuse to exercise subject matter jurisdiction over this action. Shared Network appears to move for remand under § 1452(b) and/or permissive abstention under § 1334(c)(1). Section 1452(b) provides that “the court to which [a] claim or cause of action is removed may remand such claim or cause of action on any equitable ground.” Similarly, § 1334(c)(1) reads: Nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11. See e.g., McCormick v. Rochar, 1999 WL 1051776, at *1 (E.D.Pa. Nov.19, 1999). In assessing whether to abstain or to remand, a court considers the following non-inclusive factors: the effect on the efficient administration of the bankruptcy estate; the extent to which issues of state law predominate; the difficulty or unsettled nature of applicable state law; comity; the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; the existence of a right to a jury trial; and, prejudice to the involuntarily removed defendants. In re U.S. Physicians, Inc., 2001 WL 793271, *2 (E.D.Pa. July 12, 2001) (citing McCormick, 1999 WL 1051776, at *2). See also In re RBGSC Investment Corp., 253 B.R. 369, 377-78 (E.D.Pa.2000); In re Pacor, 72 B.R. at 931. Shared Network argues that comity, the right to a jury trial, and the predominance of state law issues all militate in favor of remand. WorldCom contends that the effect on the efficient administration of the estate, the degree of relatedness of the bankruptcy and state court proceedings, and the waiver by Shared Network of its right to a jury trial by subjecting itself to the equitable administration of the bankruptcy court all support denying"
},
{
"docid": "814191",
"title": "",
"text": "proceeding commenced in state court or other nonbankruptcy court; (5) the jurisdictional basis, if any, other than 1334; (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (7) the substance rather than form of an asserted core proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden of the bankruptcy court’s docket; (10) the likelihood of the commencement of the proceedings in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; and (12) the presence in the proceeding of non-debtor parties, 28 U.S.C. 1334(c)(1); see e.g. In re Chicago, Milwaukee, St. Paul & Pacific Railroad Co., 6 F.3d 1184, 1189 (7th Cir.1993); Hopkins v. Plant Insulation Co., 342 B.R. 703, 710-711 (D.Del. 2006). In this case, the Plan has already been confirmed and the shares of the Reorganized Debtor transferred, and therefore, the administration of the Debtor’s estate will not be affected. As the Court has concluded, the Adversary Complaint alleges state law claims with little nexus to the bankruptcy proceedings. This action was originally filed in state court, involves only nondebtors and there is no federal question or diversity jurisdiction. Accord ingly, in the alternative, the Court concludes that permissive abstention and equitable remand is appropriate. In sum, the Court agrees with the Bankruptcy Court that the underlying Adversary Complaint has little effect on the Debtor’s estate and the claims alleged are non-core claims related to individualized alleged injuries that are distinct from the injuries suffered by shareholders as a whole. Accordingly, the Court will affirm the decision of the Bankruptcy Court remanding the adversary action underlying this appeal to the Illinois State Court. IV. CONCLUSION For the reasons discussed, the Court will affirm the Bankruptcy Court’s December 5, 2005 Order. . The Court acknowledges that there is a debate between the parties as to whether this action is nonetheless “related to” the bankruptcy proceedings. Although it is not entirely"
},
{
"docid": "21745671",
"title": "",
"text": "Shared Network’s remand motion and transferring the entire action to the Southern District of New York. As stated above, the parties agree that the claims and originally filed counterclaim in the state court action constitute “core proceedings.” See 28 U.S.C. § 157. “Thus, it is clear that [the claims and counterclaims are] ... quite related to the bankruptcy and also that remand would impede the efficient administration of the bankrupt estate.” In re RBGSC Investment Corp., 253 B.R. at 382; see also In re Consol. Lewis Inv. Corp., 78 B.R. 469, 477 (Bankr.M.D.La.1987). Because the state court action was voluntarily and temporarily stayed, Shared Network’s proof of claim and WorldCom’s objection thereto in the bankruptcy court are just as far along in the litigation process as the state court action. The remand and subsequent delay would negatively affect the efficient administration of WorldCom’s bankruptcy estate. In addition, the lack of complexity of the applicable state law for breach of contract, quantum meruit, and unjust enrichment, together with “the absence of any special state interest ... weigh[ ] strongly against abstention.” In re U.S. Physicians, 2001 WL 793271, at *2; see also In re Sun West Distributors, 69 B.R. 861, 867 (Bankr.S.D.Cal.1987). Shared Network argues that its right to a jury trial will be unfairly lost if it is forced to litigate in bankruptcy court. We are not convinced. Shared Network has voluntarily subjected itself to the equitable jurisdiction of the bankruptcy court by filing its proof of claim there. See In re Asousa Partnership, 276 B.R. 55, 66 (Bankr.E.D.Pa.2002). It could have moved to terminate the automatic stay on the state court action if it had been interested in expeditiously resolving the dispute in state court before a jury. It did not do so. In light of the above analysis, we find that neither permissive abstention nor equitable remand is appropriate. Accordingly, we will deny Shared Network’s motion to remand this action to the Court of Common Pleas of Montgomery County. III. Finally, we turn to WorldCom’s motion to transfer venue to the Southern District of New York. Under 28"
},
{
"docid": "16591367",
"title": "",
"text": "should not rush to usurp the traditional precincts of the state courts.” In re Norrell, 198 B.R. at 997. Consequently, the fact that the Plaintiffs’ claims could qualify for mandatory abstention weighs heavily in favor of remand. The Defendants have argued that equity favors retention of jurisdiction over the state law claims in federal court because the Plaintiffs have submitted themselves to the jurisdiction of the federal courts by filing for bankruptcy. However, the court must give some deference to the Plaintiffs’ decision to litigate this state law action in state court. See Burns, 31 F.3d at 1095. In addition to the equitable remand and mandatory abstention factors, there are also factors under § 1334(c)(1) to consider in determining whether discretionary abstention is appropriate. These factors include (1) the effect of abstention on the efficient administration of the bankruptcy estate; (2) the extent to which state law issues predominate over bankruptcy issues; (3) the difficulty or unsettled nature of the applicable law; (4) the presence of a related proceeding commenced in state court or other non-bankruptcy court; (5) the basis of bankruptcy jurisdiction, if any, other than 28 U.S.C. § 1334; (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; (7) the substance rather than the form of an asserted “core” proceeding; (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden of the bankruptcy court’s docket; (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to a jury trial; (12) the presence in the proceeding of non-debtor parties. In re Norrell, 198 B.R. at 994 (N.D.Ala.1996). Many of these factors have been discussed in relation to the factors regarding equitable remand. The court does find it significant, however, that one factor is the feasibility of severing the state law and bankruptcy matters and allowing the bankruptcy court to enforce the state law judgment. As has"
},
{
"docid": "18304045",
"title": "",
"text": "whether to exercise supplemental jurisdiction, the court should consider the following four factors: judicial economy, convenience, fairness, and comity. See Gibbs, 383 U.S. at 726, 86 S.Ct. 1130; see also CamegieMellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (reaffirming the Gibbs factors as necessary in any decision regarding the remand of supplemental state claims). In this instance, remand of this adversary proceeding does not raise any issues regarding judicial economy or convenience to the litigants. Because the adversary has been withdrawn from the bankruptcy court, the parties must try both cases in separate forums no matter what this court decides today. Remand will not create further inefficiencies or inconveniences to the parties other than those they already must endure. Thus, the factors of judicial economy and convenience weigh neither for nor against remand. However, with regard to fairness to the parties and comity, these factors weigh strongly in favor of remand. First, this suit began as a two-party dispute in state court with numerous state-law causes of action. It was then removed to federal court by the defendant as an adversary proceeding but was later found to be outside the bankruptcy court’s jurisdiction. There is a strong flavor of forum shopping by the defendant, as the debtor did not file bankruptcy until immediately after the institution of this suit, and the maintenance of the debtor’s bankruptcy filing is weakly related to any federal bankruptcy policy. The role of the bankruptcy courts is not to adjudicate two-party disputes, and this dispute would never have reached this court absent the defendant’s attempt to manufacture jurisdiction through the vehicle of a bankruptcy filing. See Am. Telecom Corp. v. Siemens Info. & Commc’ns Network, Inc., No. 04-C-8053, 2005 U.S. Dist. LEXIS 19633, at *14 (N.D.Ill. Sept. 7, 2005) (affirming the bankruptcy court’s dismissal of a suit that “had been used as a litigation tactic to frustrate and delay the debtor’s opponent in a two-party dispute” (internal quotation marks omitted)); see also In re Fonke, 310 B.R. 809, 817 (Bankr.S.D.Tex.2004) (stating that courts have construed bankruptcy cases as"
},
{
"docid": "21745673",
"title": "",
"text": "U.S.C. § 1412, “a district court may transfer a case or proceeding under Title 11 to a district court for another district, in the interest of justice or for the convenience of the parties.” Our Court of Appeals has outlined the factors to consider under 28 U.S.C. § 1404(a) in Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir.1995). Since much of the essential wording of § 1412 is similar to § 1404(a), we view the reasoning of Jumara to be applicable here, taking into consideration the particular circumstances arising out of a bankruptcy. While there is no exclusive list of factors, there are a variety of private and public interests to be considered in deciding a motion to transfer venue. The private interests include not only the debtor’s choice of forum but also the convenience of the parties as indicated by the physical and financial condition and the location of books and records. The public interests, on the other hand, include such matters as the enforcement of any judgment, “practical considerations that could make the trial easy, expeditious, or inexpensive,” court congestion, and local interests. Here, we find the overwhelmingly significant factor, outweighing all others, is the judicial economy to be achieved in having the entire controversy decided in one forum, in this case the bankruptcy court which is already administering the World-Com bankruptcy. If we ruled otherwise, it is inevitable that proceedings will be delayed and to some extent duplicated for a tremendous waste of time and money for all concerned. Having the Southern District of New York as the venue is particularly compelling since Shared Network has filed a proof of claim against WorldCom in the bankruptcy court in that district, WorldCom has filed a counterclaim against Shared Network there, and all agree that the claims and counterclaim are core proceedings so that they may be adjudicated before the presiding bankruptcy judge. We will grant the motion to transfer. IV. In sum, we will deny the motion of Shared Network to remand to the Court of Common Pleas of Montgomery County and grant the motion"
},
{
"docid": "16986483",
"title": "",
"text": "for allowance purposes, and the rights of the claimant to vote on the proposed distribution.” In re Manville Forest Prod. Corp., 896 F.2d 1384, 1389-90 (2d Cir.1990). Unlike non-core proceedings, the bankruptcy court has the power to enter its own orders, without consent of the parties with respect to matters within its core jurisdiction. 28 U.S.C. § 157; Cent. Vt. Pub. Serv. Corp. v. Herbert, 341 F.3d 186, 190 (2d Cir.2003). Although the determination that proceedings with respect to Tallo’s claims are within the core of bankruptcy jurisdiction does not foreclose the application of the doctrine of discretionary remand, it is a factor weighing in favor of adjudicating the dispute in the bankruptcy court. See Shared Network Users Group, Inc. v. WorldCom Tech., Inc., 309 B.R. 446, 452 (E.D.Pa.2004) (that plaintiff had filed a proof of claim in bankruptcy court provides a compelling reason to transfer case removed from state court to bankruptcy court); Scherer v. Carroll, 150 B.R. 549, 551 (D.Vt.1993) (stating that prior discretionary remand was in part because plaintiff had not filed a proof of claim in the bankruptcy court). Reconsideration of the Court’s previous memorandum and order is therefore appropriate. Transfer or Remand The debtors contend that because the filing of the proof of claim rendered this a core proceeding, transfer as opposed to remand more fully serves the interests of judicial efficiency, and that remand is inappropriate because the state court action has been stayed. Upon reconsideration, I hold that transfer to the bankruptcy court, which is in a more suitable position to consider the doctrine of discretionary remand, is appropriate. District courts faced with a removed bankruptcy-related case frequently consider the doctrine of discretionary remand before transferring the case to the district in which the bankruptcy is pending. See, e.g., Stahl v. Stahl, 03 Civ.0405 2003 WL 22595288 (S.D.N.Y. Nov. 7, 2003). Nevertheless, a court may, after deciding the issue of jurisdiction, instead exercise its discretion to transfer the case and permit the home bankruptcy court to decide the issue of remand. The latter approach has been described as a “prudential doctrine in furtherance"
},
{
"docid": "16098755",
"title": "",
"text": "determination that it’s a non-core matter____ Any matter that arose pre-petition has to be designated as non-core.” (Id. at 6-7.) DISCUSSION A The Motion to Withdraw the Reference A district court may withdraw the reference of any case “for cause shown.” 28 U.S.C. § 157(d). The Second Circuit has set forth a number of factors to be used in evaluating “cause,” including whether the proceeding is core or non-core, whether it is legal or equitable, and “considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law.” Orion Pictures Corp. v. Showtime Networks, Inc., 4 F.3d 1095, 1101 (2d Cir. 1993), cert. dismissed, — U.S. -, 114 S.Ct. 1418, 128 L.Ed.2d 88 (1994); see also In re Kenai Corp., 136 B.R. 59, 61 (S.D.N.Y. 1992) (Wood, J.) (factors to be examined include whether action is core or non-core and issues of “(1) judicial economy, (2) uniform bankruptcy administration, (3) reduction of forum shopping, (4) economical use of debtors’ and creditorsf] resources, (5) expediting the bankruptcy process, and (6) the presence of a jury demand”). A district court considering whether to withdraw a reference must first decide whether the proceeding is core or non-core, “since it is upon this issue that questions of efficiency and uniformity will turn.” Orion, 4 F.3d at 1101. In this case, because Judge Blackshear has ruled that the proceeding is non-core, I review his conclusion of law de novo. i. Core or Now-Core Under the Bankruptcy Amendments and Federal Judgeship Act of 1984, the bankruptcy courts have jurisdiction to hear both core and non-core matters. 28 U.S.C. § 157. The sole relevance of the core/non-core distinction is the scope of the bankruptcy court’s authority, particularly with regard to the jury trial demanded by defendants. When adjudicating core matters, the bankruptcy court may issue final orders and judgments, 28 U.S.C. § 157(b)(1), and may conduct jury trials, In re Ben Cooper, Inc., 896 F.2d 1394, 1402 (2d Cir.), vacated and remanded, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 408 (1990), reinstated on remand, 924 F.2d 36 (2d Cir.1991). In non-core but related"
},
{
"docid": "5984565",
"title": "",
"text": "$15 million.” (Bankr. Cplt. ¶ 31.) ANALYSIS THE DISTRICT COURT SHOULD WITHDRAW THE REFERENCE TO THE BANKRUPTCY COURT IN THE INTERESTS OF JUDICIAL ECONOMY “The district court may withdraw, in whole or in part, any case or proceeding referred [to the Bankruptcy Court] under this section, on its own motion or on timely motion of any party, for cause shown.” 28 U.S.C. § 157(d). Although § 157(d) does not define what constitutes “cause,” District courts in this circuit have considered a number of factors in evaluating cause: whether the claim or proceeding is core or non-core, whether it is legal or equitable, and considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law. Orion Pictures Corp. v. Showtime Networks, Inc. (In re Orion Pictures), 4 F.3d 1095, 1101 (2d Cir.1993), cert. dismissed, — U.S.-, 114 S.Ct. 1418, 128 L.Ed.2d 88 (1994). A. This Case is a Non-Core Proceeding As the Second Circuit stated in Orion Pictures, “[a] district court considering whether to withdraw the reference should first evaluate whether the claim is core or non-core, since it is upon this issue that questions of efficiency and uniformity will turn.” 4 F.3d at 1101. Section 157 distinguishes between “core” an “non-core” or “related” bankruptcy proceedings. While bankruptcy judges may “hear and determine ... all core proceedings arising under title 11, or arising in a ease under title 11,” 28 U.S.C. § 157(b)(1), any decision a bankruptcy court makes in a non-core proceedings is subject to de novo review by the district court. 28 U.S.C. § 157(c)(1); see also, e.g., Orion Pictures, 4 F.3d at 1101. Section 157(b)(2) lists various types of core proceedings, all generally involving matters that “would have no existence outside of the bankruptcy case.” J.T. Moran Financial Corp. v. American Consolidated Financial Corp. (In re J.T. Moran Fin. Corp.), 124 B.R. 931, 937 (Bankr.S.D.N.Y.1991) (citing eases). “A core proceeding must invoke a substantive right provided by title 11.” Id. On the other hand, non-core proceedings “involve disputes over rights that ... have little or no relation to the Bankruptcy Code, do not arise"
},
{
"docid": "16098754",
"title": "",
"text": "Travelers had only itself to blame for its oversight. (Tr. of Hearing before Judge Gallet passim.) Travelers promptly appealed the Orders of both Judge Conrad and Judge Gallet to this Court. I consolidated these appeals with Travelers’ motion to withdraw the reference. The Pennsylvania Defendants entered the case in August, 1995, when Hirsch on behalf of Seatrain filed an Amended Complaint in the adversary proceeding naming them as defendants. The Pennsylvania Defendants denied liability, asserted affirmative defenses, demanded a jury trial and moved for abstention and withdrawal of the reference. At a bankruptcy court hearing on September 19,1995, Judge Blackshear ruled that the adversary proceeding is non-core. (Tr. of Hearing before Judge Blackshear at 4-7.) Although counsel for the parties did not apprise Judge Blackshear of Judge Conrad’s earlier comments on the core/non-core issue, (see id. at 5), these comments would not have bound Judge Blackshear because they were not made in the form of a final ruling. Judge Blackshear held that: “It seems to me instead of wasting paper, I have already made a determination that it’s a non-core matter____ Any matter that arose pre-petition has to be designated as non-core.” (Id. at 6-7.) DISCUSSION A The Motion to Withdraw the Reference A district court may withdraw the reference of any case “for cause shown.” 28 U.S.C. § 157(d). The Second Circuit has set forth a number of factors to be used in evaluating “cause,” including whether the proceeding is core or non-core, whether it is legal or equitable, and “considerations of efficiency, prevention of forum shopping, and uniformity in the administration of bankruptcy law.” Orion Pictures Corp. v. Showtime Networks, Inc., 4 F.3d 1095, 1101 (2d Cir. 1993), cert. dismissed, — U.S. -, 114 S.Ct. 1418, 128 L.Ed.2d 88 (1994); see also In re Kenai Corp., 136 B.R. 59, 61 (S.D.N.Y. 1992) (Wood, J.) (factors to be examined include whether action is core or non-core and issues of “(1) judicial economy, (2) uniform bankruptcy administration, (3) reduction of forum shopping, (4) economical use of debtors’ and creditorsf] resources, (5) expediting the bankruptcy process, and (6) the presence of"
}
]
|
652623 | brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; [or] sji ‡ ‡ ‡ ❖ ❖ (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State;.... 10 Del. C. § 3104(c). Subsection (c)(1) confers specific jurisdiction. REDACTED Specific jurisdiction requires that the cause of action arise from the defendant’s conduct in the forum state. See Provident Nat’l Bank, 819 F.2d at 437. “Section 3104(c)(1) has been characterized as a ‘single act statute’ which allows the court ‘to exercise jurisdiction over nonresidents on the basis of a single act done or transaction engaged in by the nonresident within the state.’” ACE & Co., Inc. v. Balfour Beatty PLC, 148 F.Supp.2d 418, 422 (D.Del.2001) (quoting Eudaily v. Harmon, 420 A.2d 1176, 1180 n. 4 (Del.1980)). In contrast, subsection (c)(4) confers general jurisdiction, which requires that the defendant or its agents be “generally present” in the forum state whether or not the tortious acts and injury occurred inside Delaware. See Dencer, | [
{
"docid": "17191747",
"title": "",
"text": "& B S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del.1986). Intel contends that there is a statutory basis for asserting jurisdiction over Broad-com and bases that contention on three separate subsections of the Delaware long-arm section. First, Intel claims Broadcom is subject to jurisdiction under 3104(c)(1) because Broadcom transacts business in Delaware. Second, Intel claims that jurisdiction is also proper under 3104(c)(2) because Broadcom has contracted to supply things to customers in Delaware. Last, Intel claims that 3104(c)(4) confers jurisdiction over Broadcom because Broadcom causes tortious injury in Delaware under the meaning of that subsection. The relevant sections of the statute follow: [A] court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State; 10 Del. C. § 3104(c). 1. Does § 3104(c)(1) authorize the court to exercise jurisdiction over Broadcom? Intel first contends that Broadcom is subject to jurisdiction under section 3104(c)(1) of the Delaware long-arm statute. That section provides for jurisdiction over non-residents who transact business in Delaware. See 10 Del. C. § 3104(c)(1). Delaware state courts have interpreted section 3104(c)(1) to be a specific jurisdiction provision of the Delaware long-arm statute. Outokumpu Eng’g, Enters., Inc. v. Kvaerner Enviropower, Inc., 685 A.2d 724, 729 (Del.Super.1996). Specific jurisdiction requires that there be a “nexus” between the plaintiffs cause of action and the conduct of the defendant that is used as a basis for jurisdiction. See Helicopte ros Nacionales de Colombia S.A. v. Hall et al., 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Boone v. Oy Partek Ab, 724 A.2d 1150, 1155 (Del.Super.1997). Intel claims that Broadcom has"
}
]
| [
{
"docid": "20038471",
"title": "",
"text": "exercise of jurisdiction comports with the defendant’s right to due process.” Boston Scientific Corp. v. Wall Cardiovascular Tech., 647 F.Supp.2d 358, 364 (D.Del.2009) (citations omitted). Pursuant to the relevant portions of Delaware’s long-arm statute, 10 Del. C. § 3104(c)(l)-(4), a court may exercise personal jurisdiction over a defendant when the defendant or its agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside the State by an act or omission outside the State if the person regularly does or solicits business [in the State], engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.... 10 Del. C. § 3104(c)(l)-(4) (emphasis added). With the exception of (c)(4), the long-arm statute requires a showing of specific jurisdiction. See Shoemaker v. McConnell, 556 F.Supp.2d 351, 354-55 (D.Del.2008). Subsection (c)(4), on the other hand, requires a showing of general jurisdiction, that is, a showing that defendant or its agent, through more than minimum contacts, is “generally present” in the forum state. See G & G LLC v. White, 535 F.Supp.2d 452, 461 (D.Del.2008). If defen dant is found to be within the reach of the long-arm statute, the court then must analyze whether the exercise of personal jurisdiction comports with due process, to wit, whether plaintiff has demonstrated that defendant “ ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum State,’ ” so that it should “ ‘reasonably anticipate being haled into court there.’ ” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (citations omitted) (emphasis added). For the court to exercise specific personal jurisdiction consistent with due process, plaintiffs cause of action must have arisen from the defendant’s activities in the forum State. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85"
},
{
"docid": "7501109",
"title": "",
"text": "of the Court. If no evidentiary hearing is held, the plaintiff has met its burden if it has established a prima facie case when the record is viewed in the light most favorable to the plaintiff. When addressing the personal jurisdiction after discovery has been completed, however, it is appropriate to review and evaluate the entire record. The Court need not be blind to discovered materials, and should look beyond the facade of the pleadings. See, e.g., Ball v. Metallurgie Hoboken-Overpelt, SA, 902 F.2d 194 (2d Cir.1990); Serras v. First Tennessee Bank National Association, 875 F.2d 1212 (6th Cir.1989); Morris v. SSE, Inc., 843 F.2d 489 (11th Cir.1988); see also Dentsply Intern Inc. v. Pentron Corp., 648 F.Supp. 856 (D.Del.1986) (reserving decision on personal jurisdiction, pending an evidentiary hearing, because of disputed factual allegations); Greenly v. Davis, 486 A.2d 669 (Del.1984) (approving trial court’s discounting of plaintiff’s general and unsupported affidavits); Plum-mer, 533 A.2d at 1245 (prima facie case should be evaluated in light of the pleadings and affidavits); Mandalay Associates Limited Partnership v. Hoffman, 141 Ill.App.3d 891, 96 Ill.Dec. 225, 228, 491 N.E.2d 39, 42 (1986); 2A Moore’s Federal Practice ¶ 12.07[2.-2] Roebuck contends that either of two subsections of Delaware’s long-arm statute applies: (c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, ... who in person or through an agent: (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.... 10 Del. C. § 3104. PLC contends that personal jurisdiction is lacking under the Delaware law, and that in any event, the exercise of personal jurisdiction over it in Delaware would offend due process. 1. Section 3104(c)(3): Specific Jurisdiction If"
},
{
"docid": "15253455",
"title": "",
"text": "the Delaware long arm statute, Del. Code Ann. tit. 10, § 3104(c), which provides, in relevant part: (c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; [or] (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed ■ in the State.... Del. Code Ann. tit. 10, § 3104(c) (West 2016). The district court determined that personal jurisdiction exists over Suunto under a dual jurisdiction theory. The dual jurisdiction theory is based on at least partial satisfaction of § 3104(c)(1) and (c)(4). It was first articulated by the Delaware Superior Court in a stream-of-commerce case in 1997. Boone v. Oy Partek Ab, 724 A.2d 1150 (Del. Super. Ct. 1997), aff'd, 707 A.2d 765 (Del. 1998). Suunto argues that the district court erred in finding that the Delaware long arm statute was satisfied. According to Suunto, the dual jurisdiction theory is based on § 3104(c)(4), which requires a showing of general jurisdiction. Suunto argues that Polar failed to establish general jurisdiction and thus cannot rely on the dual jurisdiction theory. Polar responds that the district court correctly applied Delaware’s dual jurisdiction theory and correctly found that Suunto’s activities satisfy the long arm statute under that theory. Polar also responds that the dual jurisdiction theory as articulated in Boone does not require a showing of general jurisdiction. We agree with Polar that the district court correctly applied the dual jurisdiction theory in this case. It may seem counterintuitive that the dual jurisdiction theory does not demand the full satisfaction of any individual subsection of the Delaware long arm statute. But to date, no Delaware state court"
},
{
"docid": "3766626",
"title": "",
"text": "502. The constitutional basis requires the court to determine whether the exercise of jurisdiction comports with the defendant’s right to due process. See id.; see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). 4. Pursuant to the relevant portions of Delaware’s long-arm statute, 10 Del. C. § 3104(c)(1) — (4), a court may exercise personal jurisdiction over a defendant when the defendant or its agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State. 10 Del. C. § 3104(c)(1) — (4). With the exception of (c)(4), the long-arm statute requires a showing of specific jurisdiction. See Shoemaker v. McConnell, 556 F.Supp.2d 351, 354, 355 (D.Del.2008). Subsection (4) confers general jurisdiction, which requires a greater number of contacts, but allows the exercise of personal jurisdiction even when the claim is unrelated to the forum contacts. See Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F.Supp. 1458, 1466 (D.Del.1991). 5. If defendant is found to be within the reach of the long-arm statute, the court then must analyze whether the exercise of personal jurisdiction comports with due process, to wit, whether plaintiff has demonstrated that defendant “purposefully availfed] itself of the privilege of conducting activities within the forum State,” so that it should “reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (citations omitted). For the court to exercise specific personal jurisdiction consistent with due process, plaintiffs cause of action must have arisen from the defendant’s activities in the forum State. See Burger King Corp. v."
},
{
"docid": "16351501",
"title": "",
"text": "business in the State; 2) caused tortious injury in the State by an act or omission within the State; and 3) caused a tortious injury in the State or outside the State by an act or omission outside the State and regularly did and solicited business, engaged in a persistent course of conduct or derived substantial revenue from services in the State of Delaware. (D.I. 26 at 5). Plaintiffs further assert that because IRH and Dencer were the Delaware corporations’ alter egos or were a single enterprise with them, the Delaware long-arm statute reaches them. Id. at 6. 1. Delaware Long-Arm Statute In relevant part, the Delaware long-arm statute provides: c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State; (5) Has an interest in, uses or possesses real property in the State; or (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. 10 Del. C. § 3104(c)(l)-(6). The Plaintiffs contend that there is jurisdiction over Defendant Dencer under 10 Del. C. § 3104(c)(1), (c)(3) and (c)(4). (D.I. 26 at 5). In order for a court to exercise jurisdiction under Subsections (c)(1) and (c)(3), some act must actually occur in Delaware. See Applied"
},
{
"docid": "7501110",
"title": "",
"text": "141 Ill.App.3d 891, 96 Ill.Dec. 225, 228, 491 N.E.2d 39, 42 (1986); 2A Moore’s Federal Practice ¶ 12.07[2.-2] Roebuck contends that either of two subsections of Delaware’s long-arm statute applies: (c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, ... who in person or through an agent: (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.... 10 Del. C. § 3104. PLC contends that personal jurisdiction is lacking under the Delaware law, and that in any event, the exercise of personal jurisdiction over it in Delaware would offend due process. 1. Section 3104(c)(3): Specific Jurisdiction If the prerequisites of subsection (c)(3) are met, the Court may exercise specific jurisdiction over the defendant. See LaNuova D & B, S.p.A. v. Bowe Co., Inc., 513 A.2d 764, 768 (Del.1986). The fundamental inquiry in determining whether specific jurisdiction over a defendant exists is an analysis of the relationship among the defendant, the litigation, and the forum. See Helicopteros Nacionales de Columbia, S.A. v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 1872 & n. 8, 80 L.Ed.2d 404 (1984); North Penn Gas Co. v. Corning Natural Gas Corp., 897 F.2d 687, 689 (3d Cir.1990). By its terms, subsection (c)(3) only applies when the defendant, or an agent of the defendant, performs some act (or omission) in the State of Delaware. Cf. United States v. Consolidated Rail Corp., 674 F.Supp. 138, 142 (D.Del.1987); see also Uresil Corp. v. Cook Group Inc., 1988 WL 124335 at 2 (N.D.Ill. Nov. 15, 1988) (“A defendant who has participated in a transaction must actually have done something, however slight, in Illinois in order for his actions"
},
{
"docid": "20070442",
"title": "",
"text": "§ 3104(c), specifically contemplates that it may operate to provide jurisdiction over a principal based upon the forum contacts of its agent. Section 3104(c) states that it provides jurisdiction “over any nonresident, or his personal representative, who in person or through an agent,” committed one of the listed courses of action. Thus, a finding of agency does not render the long-arm statute inapplicable, but simply implicates its “or through an agent” provision. Having concluded that finding a limited agency relationship does not obviate the need to apply the Delaware long-arm statute, we now turn to that statute’s provisions. In applying the statute, we may consider the acts of an agent to the extent that these actions were directed and controlled by the principal. See Sears, Roebuck & Co. v. Sears pic, 752 F.Supp. 1223, 1225 (D.Del.1990) (Sears III). 2. The Delaware Long-Arm. Statute The Delaware long-arm statute, 10 Del.C. § 3104, provides, in relevant part: (c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; ... (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State ... (emphasis added). Subsections (c)(1) and (c)(3) of this statute provide for specific jurisdiction, under which the cause of action must arise from the contacts with the forum. See Sears, Roebuck & Co. v. Sears pic, 744 F.Supp. 1289, 1292 (D.Del.1990) (Sears I); LaNuova D & B, S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del.1986). Subsection (c)(4) provides for general jurisdiction, which requires a greater extent of contacts, but which"
},
{
"docid": "11844972",
"title": "",
"text": "arm statute provides, in relevant part, that personal jurisdiction is proper over any nonresident who, in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in the State; ... [or] (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State. 10 Del. C. § 3104(c). Subsections (1) and (2) grant specific jurisdiction. Boone v. Oy Partek Ab, 724 A.2d 1150, 1155 (Del.Super.1997). Specific jurisdiction requires that the cause of action arise from the defendant’s conduct in the forum state. See Provident Nat’l Bank, 819 F.2d at 437. Defendants’ only contact with Delaware comes from their liability insurance policy with State Farm; the automobile accident occurred in Ohio, not Delaware. Specific jurisdiction does not exist in this case because the accident occurred outside of the forum state. See Kee v. Blue Line Distributing, Inc., Civ. No. 07-460, — F.Supp.2d ■-, -, 2008 WL 1805808, at *2 (D.Del. Apr. 18, 2008). Therefore, the court will only consider jurisdiction under a general jurisdiction analysis. In contrast to subsections (c)(1) and (c)(2), subsection (c)(4) confers general jurisdiction, which requires that the defendant or its agents be “generally present” in the forum state whether or not the tortious acts and injury occurred inside Delaware. See Reach & Assocs. v. Dencer, 269 F.Supp.2d 497, 505 (D.Del.2003). General jurisdiction may be applied when a defendant’s contacts with the forum state are “continuous and substantial.” Kloth v. Southern Christian Univ., 494 F.Supp.2d 273, 280 (D.Del.2007). The possession of an insurance policy is not sufficient to satisfy the requirements for general jurisdiction under subsection (c)(4). Subsection (c)(4) requires that a defendant “regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed"
},
{
"docid": "20070443",
"title": "",
"text": "section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; ... (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State ... (emphasis added). Subsections (c)(1) and (c)(3) of this statute provide for specific jurisdiction, under which the cause of action must arise from the contacts with the forum. See Sears, Roebuck & Co. v. Sears pic, 744 F.Supp. 1289, 1292 (D.Del.1990) (Sears I); LaNuova D & B, S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del.1986). Subsection (c)(4) provides for general jurisdiction, which requires a greater extent of contacts, but which provides jurisdiction even when the claim is unrelated to the forum contacts. LaNuova, 513 A.2d at 768. We shall discuss the applicability of each of these subsections in turn. a. Section 3104(c)(1) Specific jurisdiction can be obtained under subsection (c)(1) if, through Inc., Limited and Holdings have conducted any business in Delaware. This subsection requires that some act must have actually occurred in Delaware, Sears I, 744 F.Supp. at 1294, and that the causes of action asserted by ABIO must have arisen from the Delaware contact. LaNuova, 513 A.2d at 768. These acts may be those of an agent that are attributed to the defendant. For example in the product liability suit of Waters v. Deutz Corp., 460 A.2d 1332, 1337-38 (Del.Super.1983), the Delaware Superior Court found that Section 3104(c)(1) authorized jurisdiction over a German tractor manufacturer that had developed an agency relationship with its exclusive United States distributor. Although the German corporation had no direct contacts with this state, the agent/distributor imported 40% of its products through the Port of Wilmington, sold at least"
},
{
"docid": "10656039",
"title": "",
"text": "state’s long arm statute. Id. As for the constitutional basis, the court must determine whether the exercise of jurisdiction comports with the defendant’s right to due process. Id. In cases involving foreign parties, the Supreme Court has stated that “[gjreat care and reserve should be exercise when extending our notions of personal jurisdiction into the international field.” Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 115, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) IV. DISCUSSION The Delaware long arm statute permits the exercise of personal jurisdiction over a nonresident who, in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply service or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State; (5) Has an interest in, uses or possesses real property in the State; or (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. 10 Del. C. § 3104(c). Pursuant to subsection (c)(l)-(3) and (5)-(6), specific jurisdiction may be established if the cause of action arises from contacts with the forum. Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F.Supp. 1458, 1466 (D.Del.1991). Subsection (c)(4) provides for general jurisdiction, which requires a greater extent of contacts, but which provides jurisdiction even when the claim is unrelated to the forum contacts. Id. It is apparent from the récord that the individual conduct of Syngenta AG and Participations does not satisfy the jurisdictional requirements cited above. Syngen-ta AG and Participations are holding companies that do not conduct business in Delaware."
},
{
"docid": "15458094",
"title": "",
"text": "of the enumerated categories establishing jurisdiction under Delaware’s long-arm statute. Second, if the statute applies, the Court must then decide whether such service comports with traditional notions of fair play and substantial justice under the due process clause. See U.S. v. Consolidated Rail Corp., 674 F.Supp. 138, 142 (D.Del.1987). See generally Max Daetwyler Corp., 762 F.2d at 298-99; DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 283-85 (3rd Cir.), cert. denied, 454 U.S. 1085, 102 S.Ct. 642, 70 L.Ed.2d 620 (1981). The Delaware long-arm statute, 10 Del.C. § 3104, provides in a pertinent part that: (c) As to a cause of action brought by a person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in this State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State; (5) Has an interest in, uses or possesses real property in the State; or (6) Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. Under this statute, Delaware courts have consistently held that personal jurisdiction may be asserted over a nonresident defendant on the basis of a “single act” related to Delaware if the resulting claim has its basis in the asserted transaction. Blue Ball Properties v. McClain, 658 F.Supp. 1310, 1316 (D.Del.1987). In addition, Delaware courts have construed the statute as conferring jurisdiction to the maximum parameters of the due"
},
{
"docid": "5856576",
"title": "",
"text": "(E.D.Mo.1985) (holding nationwide service of process impliedly authorized for suits brought under section 106 of CERC-LA). If there is no federal statute authorizing nationwide service of process, the district courts look to the jurisdictional statute of the state in which they sit, in accordance with Rule 4(e) of the Federal Rules of Civil Procedure. Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 295 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985). Therefore, this Court must examine jurisdiction under the Delaware long-arm statute. III. Jurisdiction Under the Delaware Long-Arm Statute Determining jurisdiction is a two-step process. First, the Court must examine whether the Delaware long-arm statute establishes jurisdiction. If it does, the Court must decide if its assertion of jurisdiction comports with the due process guarantees of the Fourteenth Amendment of the United States Constitution. Fischer v. Hilton, 549 F.Supp. 389, 390 (D.Del.1982). Third-party plaintiffs assert two bases for jurisdiction under the Delaware long-arm statute, DelCode Ann. tit. 10, § 3104 (Supp.1986). Subsection (c) provides in pertinent part that: As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; [or] (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.... A. Section 3104(c)(1) Subsection (c)(1) provides for the exercise of transactional jurisdiction, limited to those claims with a nexus to the conduct used as the basis for jurisdiction. LaNuova D & B, S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del.1986); Speakman Co. v. Harper Buffing Machine Co., 583 F.Supp. 273, 275 (D.Del.1984). The language of the statute requires that some action by the defendant occur within"
},
{
"docid": "9395310",
"title": "",
"text": "1150, 1156-1157 (Del.Super.1997)). The Delaware long-arm statute provides, in relevant part: (c) As to any cause of action brought by any person arising from any of the act enumerated in the section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the state; (3) Causes tortious injury in the State by an act or omission in this State; Del.Code Ann. tit. 10 § 3104(c). The Delaware Supreme Court has interpreted §§ 3104(c)(1) and 3104(c)(3) as specific jurisdiction provisions that require a “nexus” between the plaintiffs cause of action and the conduct of the defendant used as a basis for jurisdiction. See LaNuova D & B, S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del.1986). To meet the requirements of §§ 3104(c)(1) and 3104(c)(3), Emulgen’s conduct must have been directed at residents of Delaware and the protection of Delaware laws. Thom EMI N. Am. Inc. v. Micron Tech., Inc. 821 F.Supp. 272, 274 (D.Del.1993). “Specific jurisdiction arises when a defendant has both purposefully directed its activities at residents of the forum state and the action arises from, or is directly related to, the defendant’s actions within the forum state.” Kloth, 494 F.Supp.2d at 279 (citing to Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Under Delaware law, [w]here personal jurisdiction is asserted on a transactional basis, even a single transaction is sufficient if the claim has its origin in the asserted transaction. Thus if the claim sought to be asserted arose from the performance of business or the discharge of the contract, no further inquiry is required concerning any other indicia of the defendant’s activity in the state. Similarly, where the claim is one for tortious injury under subsection (c)(3), a single ‘act or omission’ in the State in which the injury was caused will suffice.” LaNuova D & B, S.p.A, 513 A.2d at 768. See also Friedman v. Alcatel Alsthom, 752 A.2d 544, 549 (Del.Ch.1999) (“single act done"
},
{
"docid": "11844971",
"title": "",
"text": "v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). IV. DISCUSSION Defendants move for dismissal due to lack of personal jurisdiction. Defendants claim that they lack the minimum contacts required for the assertion of personal jurisdiction over them by this court. They allege that they have had no contacts with Delaware as a general matter or as specifically related to the accident. (D.I. 9 at ¶¶ 4-6) Defendants further argue that the contacts in this case are not sufficient to fulfill the statutory or constitutional requirements for personal jurisdiction. (D.I. 16 at ¶¶ 6-7) Plaintiff argues that defendants’ liability policy with State Farm constitutes sufficient contacts for the court to exercise jurisdiction because defendants entered into a contract with an insurance company that is licensed to do business in Delaware. (D.I. 14 at ¶ 9) The determination of personal jurisdiction requires a two-part analysis. It must be determined if Delaware’s long arm statute confers jurisdiction and, if it does, whether the assertion of personal jurisdiction complies with due process. Delaware’s long arm statute provides, in relevant part, that personal jurisdiction is proper over any nonresident who, in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in the State; ... [or] (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State. 10 Del. C. § 3104(c). Subsections (1) and (2) grant specific jurisdiction. Boone v. Oy Partek Ab, 724 A.2d 1150, 1155 (Del.Super.1997). Specific jurisdiction requires that the cause of action arise from the defendant’s conduct in the forum state. See Provident Nat’l Bank, 819 F.2d at 437. Defendants’ only contact with Delaware comes from their liability insurance policy with State Farm; the automobile accident occurred in Ohio, not Delaware. Specific jurisdiction does not exist"
},
{
"docid": "3766625",
"title": "",
"text": "in the plaintiffs favor. Traynor v. Liu, 495 F.Supp.2d 444, 448 (D.Del.2007). Once a jurisdictional defense has been raised, the plaintiff bears the burden of establishing, with reasonable particularity, that sufficient minimum contacts have occurred between the defendant and the forum to support jurisdiction. See Provident Nat’l Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir.1987). To meet this burden, the plaintiff must produce “sworn affidavits or other competent evidence,” since a Rule 12(b)(2) motion “requires resolution of factual issues outside the pleadings.” Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 67 n. 9 (3d Cir.1984). 3. To establish personal jurisdiction, a plaintiff must produce facts sufficient to satisfy two requirements by a preponderance of the evidence, one statutory and one constitutional. See id. at 66; Reach & Assocs. v. Dencer, 269 F.Supp.2d 497, 502 (D.Del.2003). With respect to the statutory requirement, the court must determine whether there is a statutory basis for jurisdiction under the forum state’s long-arm statute. See Reach & Assocs., 269 F.Supp.2d at 502. The constitutional basis requires the court to determine whether the exercise of jurisdiction comports with the defendant’s right to due process. See id.; see also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). 4. Pursuant to the relevant portions of Delaware’s long-arm statute, 10 Del. C. § 3104(c)(1) — (4), a court may exercise personal jurisdiction over a defendant when the defendant or its agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State. 10 Del. C. § 3104(c)(1) — (4). With"
},
{
"docid": "7535970",
"title": "",
"text": "out a number of grounds on which jurisdiction can be asserted. In relevant part, the statute provides as follows: As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply services or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State; .... 10 Del.C. § 3104(c). Plaintiffs seek to premise jurisdiction in this case on subsections (c)(1), (2), and (3); it is conceded, as it must be, that subsection (c)(4) does not apply here. Plaintiffs suggest that subsection (c)(1) may support their claim of jurisdiction, on the basis that defendant “transacted business” in Delaware. The contract was executed elsewhere, and performed substantially, if not entirely, out-of-state. Though this subsection is to be construed expansively, see Wilmington Supply Co. v. Worth Plumbing & Heating, Inc., 505 F.Supp. 777, 780 (D.Del.1980), it does not confer jurisdiction over the defendant in this case. Neither the solicitation, the filing of the purchase order, nor the payment occurred when either party was in Delaware. The only contact with Delaware was defendant’s shipment of the ladder into the state. Shipment of goods into a state by common carrier, without more, does not constitute “transaction of business.” See, e. g., Pennington v. Toyomenko, Inc., 512 F.2d 1291 (5th Cir. 1975). The Court holds, therefore, that subsection (c)(1) does not apply. Plaintiffs also contend, half-heartedly, that subsection (c)(3) might confer jurisdiction. The Court finds no support for this position. The “acts and omissions” that allegedly led to plaintiff’s tortious injuries pertain to"
},
{
"docid": "15253454",
"title": "",
"text": "rare circumstances, a defendant may defeat the exercise of personal jurisdiction by “present[ing] a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); see also Beverly Hills Fan, 21 F.3d at 1568. Here, however, the district court did not decide the reasonableness prong because it dismissed the case against Suunto for lack of minimum contacts. On appeal^ neither party briefed this issue. Rather than deciding this issue in the first instance, we remand for the district court to determine whether exercising jurisdiction over Suunto would be reasonable and fair. Accordingly, because we conclude that Suunto has sufficient minimum contacts with Delaware, we vacate the district court’s determination that it lacked personal jurisdiction over Suunto and remand for the district court to determine whether exercising jurisdiction over Suunto would be reasonable and fair. II. Delaware Long Arm Statute We next consider whether the district court correctly determined that exercising jurisdiction over Suunto would be proper under the Delaware long arm statute, Del. Code Ann. tit. 10, § 3104(c), which provides, in relevant part: (c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; [or] (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed ■ in the State.... Del. Code Ann. tit. 10, § 3104(c) (West 2016). The district court determined that personal jurisdiction exists over Suunto under a dual jurisdiction theory. The dual jurisdiction theory is based on at least partial satisfaction of § 3104(c)(1) and (c)(4). It was first articulated by the Delaware"
},
{
"docid": "21293125",
"title": "",
"text": "exercise of personal jurisdiction over a nonresident who: (1) Transacts any business or performs any character of work or service in the State; (2) Contracts to supply service or things in this State; (3) Causes tortious injury in the State by an act or omission in this State; (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State; (5) Has an interest in, uses or possesses real property in the State; or (6)Contracts to insure or act as surety for, or on, any person, property, risk, contract, obligation or agreement located, executed or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing. 10 Del. C. § 3104(c). The above provisions have been construed “liberally so as to provide jurisdiction to the maximum extent possible” in order “to provide residents a means of redress against those not subject to personal service within the State.” Boone v. Oy Partek Ab, 724 A.2d 1150, 1156-57 (Del.Super.1997). Pursuant to subsections (c)(l)-(3) and (c)(5)-(6) of the long arm statute, specific jurisdiction may be established if the cause of action arises from contacts with the forum. See Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F.Supp. 1458, 1466 (D.Del.1991). Subsection (c)(4), which provides for general jurisdiction, requires a greater number of contacts but allows the exercise of personal jurisdiction even when the claim is unrelated to the forum contacts. See id. In the case at bar, plaintiff avers that subsections (c)(1) and (c)(4) of the long arm statute give this court personal jurisdiction over defendant. (D.I. 13 at 7) 2. Plaintiffs assertions In addition to the allegations contained in her complaint, plaintiff has submitted an affidavit “detaining] [defendant’s] contacts with Delaware including his business trip to Delaware and his repeated contacts with Delaware residents and businesses, including the tortious acts complained of’ in"
},
{
"docid": "9892930",
"title": "",
"text": "Court has construed the long-arm statute broadly to confer jurisdiction to the maximum extent possible under the Due Process Clause. Hercules Inc. v. Leu Trust and Banking Ltd., 611 A.2d 476 (Del.1992). However, the Delaware Supreme Court has not collapsed the analysis under the Delaware long-arm statute into the constitutional due process analysis. ICT Pharmaceuticals, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 147 F.Supp.2d 268, 271 (D.Del.2001). In relevant part the Delaware long-arm statute provides: (c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent: (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State;... 10 Del.C. § 3104(c)(4). The Delaware Supreme Court has interpreted 3104(c)(4) as a general jurisdiction provision, allowing for jurisdiction when the defendant’s contacts with the forum state are unrelated to the cause of action. Initially, the Court must determine if the alleged patent infringement is a tortious injury for the purposes of jurisdiction. In Magid v. Marcal Paper Mills, Inc., the court defined a tortious act under § 3104(c) as an act “which involves a breach of duty to another and makes the one committing the at liable in damages.” 517 F.Supp. 1125, 1130 (D.Del.1981). Because the Court of Appeals for the Federal Circuit has defined patent infringement as a tort, the Court concludes that the presently alleged patent infringement is a tortious act for the purposes of the Delaware long-arm statute, irrespective of allegations of damages. See Carbice Corp. v. American Patents Development Corp., 283 U.S. 27, 33, 51 S.Ct. 334, 75 L.Ed. 819 (1931). Secondly, the Court must determine if Barr regularly does or solicits business in Delaware. The Court concludes that Barr does not regularly do business in Delaware."
},
{
"docid": "5856577",
"title": "",
"text": "As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or his personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State; [or] (4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from services, or things used or consumed in the State.... A. Section 3104(c)(1) Subsection (c)(1) provides for the exercise of transactional jurisdiction, limited to those claims with a nexus to the conduct used as the basis for jurisdiction. LaNuova D & B, S.p.A. v. Bowe Co., 513 A.2d 764, 768 (Del.1986); Speakman Co. v. Harper Buffing Machine Co., 583 F.Supp. 273, 275 (D.Del.1984). The language of the statute requires that some action by the defendant occur within the state. Fischer v. Hilton, 549 F.Supp. at 391. Courts have scrutinized the action occurring within the state to determine if it is sufficient to support jurisdiction. In Wilmington Supply Co. v. Worth Plumbing & Heating, the court found that the opening of a credit account with a Delaware resident and the placement of more than 500 orders on that account fulfilled the requirements of subsection (c)(1). 505 F.Supp. 777, 780-81 (D.Del.1980). In contrast, in Moore v. Little Giant Industries, the court found the mere shipment of a ladder into the state insufficient when the solicitation, filing of the purchase order and payment for the ladder occurred out of the state. 513 F.Supp. 1043, 1046 (D.Del.1981), aff'd, 681 F.2d 807 (3d Cir.1982). Also, the court in Fischer held that a phone call into the state was an inadequate basis for the exercise of jurisdiction, when the contract at issue was negotiated and executed out of the state. 549 F.Supp. at 391. Although defendant Globe did contract with USPI for the shipment of waste and knew"
}
]
|
134533 | "number was not identified as TERI's. It is unclear, therefore, whether TERI received all of the loan applications. In addition, the bankruptcy court admitted that the record did not reflect the method by which the Debtor submitted her Agreement - just that it was submitted. Also, NCSLT does not assert that it was TERI employees who processed the applications, merely that TERI spent money on the facilities where the processing occurred. In general, any evidence presented in connection with § 523(a)(8) must be viewed with the Congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally in favor of the debtor in order to provide the debtor with comprehensive relief from the burden of his indebtedness. REDACTED This principle applies equally to student loan exceptions to discharge. See, e.g. , In re Johnson , 215 B.R. 750, 753 (Bankr. E.D. Mo. 1997), aff'd, 218 B.R. 449 (8th Cir. BAP 1998) (applying, in the context of student loan debt, the well-established principal that exceptions to discharge are to be narrowly construed). Here, the bankruptcy court's broad construction of the term ""funded"" is inconsistent with Congress' intent that exceptions to discharge be narrowly construed. The evidence on which the bankruptcy court's conclusion that TERI funded the Loan is based is scanty. It was not established that TERI guaranteed the loans, processed the loans, or even received all the loans. TERI merely provided an address to which applications" | [
{
"docid": "17376510",
"title": "",
"text": "the creditor sustained the alleged loss as the proximate result of the representation having been made. In re Guske, 243 B.R. 359, 362 (8th Cir. BAP 2000). The standard of proof for each element is the preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). A promise to pay a debt in the future is not a misrepresentation merely because the debtor fails to do so; the creditor must prove that the debtor, when he said he would pay the debt, had no intention of doing so. In re Church, 328 B.R. 544, 547 (8th Cir. BAP 2005). Any evidence presented must be viewed consistent with the congressional intent that exceptions to discharge be narrowly construed against the creditor and liberally against the debtor in order to provide the debtor with comprehensive relief from the burden of his indebtedness. In re Cross, 666 F.2d 873, 879-80 (5th Cir.1982). The Debtors’ fraudulent representation about which the Plaintiffs are complaining is not readily apparent. Arguably, it could have been their promise to transfer the Lot to the LLC, and subsequent failure to do so. The Plaintiffs have not taken that position. Instead, the Plaintiffs assert that silence regarding a material fact can constitute a false representation actionable under § 523(a)(2)(A), citing In re Van Horne, 823 F.2d 1285 (8th Cir.1987). Although this legal proposition is correct, that case is distinguishable. The debtor in Van Home renewed a loan from his mother-in-law. Days later, the debtor moved out of his home and subsequently filed for divorce. The evidence established that the mother-in-law would not have made the loan if the debtor had disclosed his true marital situation. There, the debtor’s intentions, the material omission, and the creditor’s reliance on that omission are apparent. Here they are not. The Plaintiffs contend that the “false representation” was the Debtors’ silence when they took out the Loan without informing the Plaintiffs. (“The plaintiffs relied on the Olsons’ silent misrepresentation in that, had the Olsons disclosed their plans, the plaintiffs could have acted to protect their investment by suing"
}
]
| [
{
"docid": "1967412",
"title": "",
"text": "funds directly to the borrower and not merely guarantee those funds. Debtor goes on to argue that the terms “funded” and “guaranteed” are not synonymous and reading the term “guaranteed” into the second clause of § 523(a)(8) that mentions nonprofit institutions renders the word “guaranteed” meaningless, mere sur-plusage in the first clause. Finally, Debt- or advances a public policy argument regarding the cumulative impact of law school loan debt that has the consequence of providing new lawyers with a disincentive to work in public service organizations after graduation. Defendant TERI argues that the plain language of § 523(a)(8) indicates that it is the program that must be funded by a nonprofit institution, not the loan itself. TERI further advances that the use of the disjunctive “or” in § 523(a)(8) does not preclude reading “guaranteed” into the second clause, and educational loans “guaranteed” by nonprofit institutions are “funded” by those institutions within the meaning of the statute. DISCUSSION Construction of § 523(a)(8) and The Use of “Or” Debtor contends that because TERI, a nonprofit institution, did not fund the loan as required by the second part of § 523(a)(8), but rather guaranteed the loan, it is not entitled to the protection of § 523(a)(8). As the first part of § 523(a)(8) applies only to guarantees by a governmental unit, Debtor argues, and TERI is not a governmental unit, the debt is dischargeable. Debtor relies on arguments based upon maxims of statutory construction, which Debtor avers support a conclusion that the statute’s failure to include the word “guarantee” in the second part of § 523(a)(8) implies a nonprofit institution must actually fund the loan and not merely guarantee the loan for that loan to be nondischargeable in a bankruptcy proceeding. Specifically, Debtor argues that the following canons of statutory construction are violated by TERI’s interpretation of § 523(a)(8), which interpretation seeks to introduce the word “guarantee” into the second clause of that provision: a. Where the legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded; b. A statute should be"
},
{
"docid": "1967410",
"title": "",
"text": "program in the event of default. This was the means by which TERI guaranteed the Debtor’s Law Access Loan. TERI also advances that without its guarantee, Key Bank would not have funded the Debtor’s Law Access loan. SUMMARY OF THE PARTIES’ ARGUMENTS The sole issue to be determined herein is the correct interpretation of § 523(a)(8). The parties do not dispute the amount of Debtor’s indebtedness, that the Debtor’s Law Access loan is an “educational benefit loan” within the meaning of § 523(a)(8), that TERI guaranteed the loan at issue, or that TERI is a § 523(a)(8) nonprofit institution. Rather, the only issue is whether a nonprofit institution that has guaranteed an education benefit loan can be granted a nondischargeability determination under the terms of § 523(a)(8). The construction of this statute is purely a question of law and thus the instant controversy is properly considered on a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), made applicable to adversary proceedings through Bankruptcy Rule 7056. The disputed statutory provision reads as follows: “For an education benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution ...” (emphasis supplied). The first section of § 523(a)(8) includes the term guaranteed, but not funded, and refers to governmental units only (“for an education benefit overpayment or loan made, insured or guaranteed by a government unit, or...”). The second part of § 523(a)(8) provides for programs funded by nonprofit institutions, with no explicit reference to programs guaranteed by nonprofit institutions (“... or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship, or stipend”). Debtor interprets the use of the disjunction “or” in § 523(a)(8) to mean that a program guaranteed by a nonprofit institution falls outside the exception to discharge found in § 523(a)(8), because in order to “fund” a loan, the nonprofit institution must actually provide or disburse"
},
{
"docid": "17105607",
"title": "",
"text": "Following trial, the Bankruptcy Court found the Debtor’s current income to be volatile, but had been relatively constant at $30,000 per year. It also found that her expenses were exceedingly modest, that she had virtually no disposable income, and that her circumstances were not likely to change in the near future or in the long term. The Bankruptcy Court concluded that “the Debtor has some ability to pay her student loans, but that it would cause her undue hardship to pay all of her student loans collectively.” Applying § 523(a)(8), it excepted from discharge E'CMC Loan Nos. 1 and 4, totaling $10,225.31, and discharged ECMC Loan Nos. 2, 3, 5, and 6, totaling $63,109.87. The TERI loan(s), the amount of which is not part of the record on appeal, was discharged. There appears to have been no determination regarding ECMC Loan No. 7 in the amount of $15,702.82. JURISDICTION Pursuant to 28 U.S.C. §§ 158(a) and (b), we may hear appeals “from final judgments, orders, and decrees.” 28 U.S.C. § 158(a)(1). A final judgment “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). The Bankruptcy Court’s order determining the dischargeability of six of the Debtor’s student loan obligations is final as to those loans. See Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 646-47 (1st Cir. BAP 1998). STANDARD OF REVIEW Generally, we evaluate a bankruptcy court’s findings of fact pursuant to the “clearly erroneous” standard of review and its conclusions of law de novo. Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 30 (1st Cir.1994); see also Fed. R. Bankr.P. 8013; Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st Cir.1997). Several circuits have concluded that an “undue hardship” determination is a question of law that requires the application of a de novo standard of review, but that the factual findings underlying that determination are reviewed under the clearly erroneous standard. See, e.g., U.S. Dept. of"
},
{
"docid": "1967408",
"title": "",
"text": "of the Federal Rules of Civil Procedure, made applicable to this adversary proceeding through Bankruptcy Rule 7056, permits summary judgment to be granted to a moving party “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c), Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(1986). The movant must establish that no material issue of fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). STATEMENT PURSUANT TO LOCAL BANKRUPTCY RULE 7056-1 Plaintiff Kelli M. O’Brien (“Debtor”) failed to submit the required Local Bankruptcy Rule 7056-l(b) Statement. As Defendant, The Educational Resources Institute (“TERI”), timely submitted a Rule 7056-1 Statement, Debtor is deemed to have admitted to the material facts contained in TERI’s Statement. See Sanders-Langsam Tobacco Co., Inc. v. Chemical Bank (In re Sanders-Langsam Tobacco, Co., Inc.), 224 B.R. 1 (Bankr.E.D.N.Y.1998)(Cyganowski, J.); Tillman v. Mason (In re C. Vernon Mason), 191 B.R. 50, 53 (Bankr.S.D.N.Y.1996). PROCEDURAL BACKGROUND AND UNDISPUTED FACTS Debtor filed for relief under Chapter 7 of the Bankruptcy Code on May 30, 2002 and was granted a discharge on September 28, 2002. Debtor commenced the instant adversary proceeding by filing a complaint on October 8, 2002. Issue was joined by service of TERI’s answer on December 31, 2002. An examination of the Rule 7056-1 Statement provided by TERI and the parties’ submissions reveals that the following facts are not disputed. On or about June 28, 1995, Debtor received a Law Access student loan from Key Bank in the principal amount of $15,325.29, plus interest. The student loan at issue is an educational benefit loan. TERI, a nonprofit institution, guaranteed the Debtor’s loan. TERI states that it administers various student loan programs by contracting with different private, for-profit lending institutions. In this capacity, TERI conditionally agrees to guarantee loans made by those lenders pursuant to its educational loan"
},
{
"docid": "1915562",
"title": "",
"text": "O’Brien v. First Marblehead Educ. Res., Inc. (In re O’Brien), 419 F.3d 104, 105-06 (2d Cir. 2005) (concluding that a student loan was excepted from discharge, based on trial court’s undisputed findings that a nonprofit institution had guaranteed the loan and funded the program under which the loan was disbursed); In re Hammarstrom, 95 B.R. at 165-66 (concluding that student loan was made under a program funded by a nonprofit institution, where nonprofit and lender had entered into an agreement that required nonprofit to buy lender’s student loans). The existence of a guarantee from a nonprofit institution is not, by itself, enough. These gaps in Wells Fargo’s assertions doom its summary judgment motion as it relates to section 523(a)(8)(A)(i). There is some information in the record that indicates that the Loans may have been extended under a program funded by a nonprofit institution. The signature page of each of the Agreements contains a text box entitled “Loan Program Information” that identifies each of the Loans as a “TERI Continuing Education Loan.” [Stip. Ex. H & Stip. Ex. I.] The First Agreement also contains the following preprinted ac-knowledgement by the debtor: I understand that this loan is made under a program funded in part by a nonprofit organization and as such is generally not dischargeable in bankruptcy pursuant to Section 523(a)(8) of the United States Bankruptcy Code. Specifically, I understand that you have purchased a guaranty of this loan, and that this loan is guaranteed by The Education Resources Institute, Inc. (“TERI”), a non-profit institution. [Stip. Ex. H at § L(10).] The Second Agreement likewise contains the following preprinted acknowledgement: I understand and agree that this loan is an education loan and certify that it will be used only for costs of attendance at the School. I acknowledge that the requested loan is subject to the limitations on dischargeability in bankruptcy contained in Section 523(a)(8) of the United States Bankruptcy Code because either or both of the following apply: (a) this loan was made pursuant to a program funded in whole or in part by The Education Resources Institute, Inc. (“TERI”),"
},
{
"docid": "1967409",
"title": "",
"text": "Tobacco, Co., Inc.), 224 B.R. 1 (Bankr.E.D.N.Y.1998)(Cyganowski, J.); Tillman v. Mason (In re C. Vernon Mason), 191 B.R. 50, 53 (Bankr.S.D.N.Y.1996). PROCEDURAL BACKGROUND AND UNDISPUTED FACTS Debtor filed for relief under Chapter 7 of the Bankruptcy Code on May 30, 2002 and was granted a discharge on September 28, 2002. Debtor commenced the instant adversary proceeding by filing a complaint on October 8, 2002. Issue was joined by service of TERI’s answer on December 31, 2002. An examination of the Rule 7056-1 Statement provided by TERI and the parties’ submissions reveals that the following facts are not disputed. On or about June 28, 1995, Debtor received a Law Access student loan from Key Bank in the principal amount of $15,325.29, plus interest. The student loan at issue is an educational benefit loan. TERI, a nonprofit institution, guaranteed the Debtor’s loan. TERI states that it administers various student loan programs by contracting with different private, for-profit lending institutions. In this capacity, TERI conditionally agrees to guarantee loans made by those lenders pursuant to its educational loan program in the event of default. This was the means by which TERI guaranteed the Debtor’s Law Access Loan. TERI also advances that without its guarantee, Key Bank would not have funded the Debtor’s Law Access loan. SUMMARY OF THE PARTIES’ ARGUMENTS The sole issue to be determined herein is the correct interpretation of § 523(a)(8). The parties do not dispute the amount of Debtor’s indebtedness, that the Debtor’s Law Access loan is an “educational benefit loan” within the meaning of § 523(a)(8), that TERI guaranteed the loan at issue, or that TERI is a § 523(a)(8) nonprofit institution. Rather, the only issue is whether a nonprofit institution that has guaranteed an education benefit loan can be granted a nondischargeability determination under the terms of § 523(a)(8). The construction of this statute is purely a question of law and thus the instant controversy is properly considered on a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), made applicable to adversary proceedings through Bankruptcy Rule 7056. The disputed statutory provision reads as"
},
{
"docid": "11406458",
"title": "",
"text": "is whether the loan obtained by the Defendants/Debtors for the education of their child is an “educational loan” as contemplated by the Bankruptcy Code and thus should be deemed nondischargeable in the Defendants/Debtors’ bankruptcy. FINDINGS OF FACT 1. On July 15, 1988, the Defendants/Debtors herein entered into a Promissory Note with The Bank of New England, N.A. The loan proceeds in the amount of $10,770.00 were paid directly to The New School for Social Research for the education of the Defendants/Debtors’ son. 2. The loan was guaranteed by The Educational Resources Institute (“TERI”), the Plaintiff herein. Plaintiff alleges that it is a “private, non-profit corporation created pursuant to Chapter 180 of the Massachusetts General Laws to administer the TERI Supplemental Loan Program.” Although Defendants dispute the assertion that TERI is a non-profit organization in their Answer to the Complaint, this is not brought to issue in either Motion for Summary Judgment. However, the Guaranty Agreement between TERI and The Bank of New England (attached as Exhibit B to the Plaintiff’s Brief in Support of its Motion for Summary Judgment) indicates that TERI is in fact a non-profit corporation. CONCLUSIONS OF LAW A. Since both parties have filed Motions for Summary Judgment and alleged the same relevant facts, we find that there is no genuine issue as to any material fact and thus this Court may resolve this matter based upon the law presented by the parties in their respective Briefs. B.R. 7056. The Defendants have alleged a hardship defense pursuant to 11 U.S.C. § 523(a)(8)(B), which this Court will preserve outside this Summary Judgment. B. The dischargeability of education loans is addressed under the Bankruptcy Code by the provisions of 11 U.S.C. § 523(a)(8). This Section provides: (a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— (8) for an educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution ... The exceptions to § 523(a)(8) found at"
},
{
"docid": "1967418",
"title": "",
"text": "the guarantee of the loan constituted a “meaningful part in providing funds” and thus a guaranteeing nonprofit institution could be considered to have “funded” the educational loan. This Court agrees that the word “funded” should be liberally construed to include “any meaningful contribution” to the provision of the loan, including the guarantee of the loan. In this case, TERI states in the Affidavit of Michael Beatty, Esq. that without TERI’s guarantee, Key Bank would not have loaned the funds to debtor. Debtor also admits that TERI “facilitate[d] the extension of student loan credit by helping to induce for-profit lenders like Key Bank to make loans to credit worthy students...” Thus the TERI guarantee played a meaningful part in providing the funds to Debtor and TERI can be said to have “funded” the Law Access Loan at issue within the ambit of § 523(a)(8). Finally, Debtor argues that public policy mitigates in favor of granting his client a discharge of her student loan debt because she does not fit the “profile of a student loan abuser” but instead is a public interest lawyer whose “substandard” salary does not permit her to live comfortably while paying off her large student loan debt. The Court is not unsympathetic to the plight of public interest attorneys saddled with large educational loan debt. In fact, the Court is well aware of the disparity between government pay and private law firm salaries. Interestingly, Debtor included as an exhibit to her submissions on this motion a study, prepared, in Debt- or’s view, significantly, by defendant TERI. The TERI study, entitled “Graduating into Debt: the Burdens of Borrowing for Graduate & Professional Students,” details the significant repayment burdens encountered by professional school graduates and the particularly adverse impact such burdens have on those graduates who choose the less lucrative public service oriented fields. The study shows that law school graduates choosing public interest jobs must pay up to one quarter of their income on student loan payments, which discourages graduates from entering the various fields of public interest law. “From Paper Chase to Money Chase: Law School Debt"
},
{
"docid": "23362502",
"title": "",
"text": "the statute itself takes no account of the processes of compromise and, in the end, prevents the effectuation of congressional intent. Board of Governors of the Federal Reserve System v. Dimension Financial Corp., 474 U.S. 361, 373-74, 106 S.Ct. 681, 688-89, 88 L.Ed.2d 691 (1986). Finally, accepted rules of statutory construction are not to be altered merely because exceptions to discharge are generally construed narrowly. Judge Martin stated this principle forcefully in In re Barth: While it is true that section 523(a)(8) runs counter to the general “fresh start” philosophy of the Bankruptcy Code, the same could be said of any exception to discharge. The exceptions to discharge exist because Congress felt that other public policies outweighed the debtor’s need for a fresh start. Although exceptions to discharge are to be construed narrowly, that approach to construction is not a suitable basis for a court to override the plain language of the statute creating the exception. 86 B.R. 146, 149 (W.D.Wis.1988). II The second question presented in this case is whether the loan falls outside section 523(a)(8), because a for-profit, nongovernmental commercial bank distributed the funds. Because the loan in question here was not “made, insured, or guaranteed by a governmental unit,” it is nondis-chargeable under section 523(a)(8) only if it was “made under any program funded in whole or in part by ... a nonprofit institution.” Nellie Mae and TERI are nonprofit institutions, but Baybank is not. Debtor contends that because Baybank is the obligee on the promissory note and disbursed the funds, Baybank rather than Nellie Mae “funded” the loan in question and section 523(a)(8) does not apply. I do not agree. Read carefully, the relevant portion of section 523(a)(8) renders an educational loan nondischargeable if two requirements are met. First, the loan must be made pursuant to a “program” for providing educational loans. Second, that program must be “funded” at least in part by a nonprofit organization. Plaintiff’s allegations satisfy both these requirements. Plaintiff has clearly alleged that the loan was made pursuant to a program for providing educational loans. Nellie Mae and Baybank had entered into"
},
{
"docid": "9816559",
"title": "",
"text": "$150 goes towards the purchase of alcohol. The Defendants were required by the Court to file statements of acceptable repayment terms. ECMC proposed to set the interest of its notes at 7.5% and accept $629.21 from the Debtor per month for a period of 240 months, totaling payments of $151,010.40. TERI proposed to reduce its principal to $35,000.00, payable at a 6% fixed rate of interest, which translates to payments of $295.35 per month for 180 months, totaling payments of $53,163.00. The Debtor responded with his own proposal to pay $436.00 per month for no more than a period of 84 months, which would total payments of $36,624.00. Discussion A Nonprofit-Status of TERI The Debtor challenged the applicability of the § 523(a)(8) nondischargeability provision to TERI, a non-profit guarantor of student loans funded by a for-profit entity, Ameritrust/Key. Section 523(a)(8) provides that student loans are excepted from discharge if such loan is “... made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution ....” 11 U.S.C. § 523(a)(8). Congress used expansive language in its designation of which student loans are non-dischargeable, indicating that the program pursuant to which the loan was made must be funded in part by a non-profit entity, not the loan itself. See HEMAR Service Corp. of America v. Pilcher (In re Pilcher), 149 B.R. 595, 597 (9th Cir. BAP 1993). Further, the language “made under any program funded in whole or in part by ... a nonprofit institution,” indicates that “Congress intended to include within section 523(a)(8) all loans made under a program in which a nonprofit institution plays any meaningful part in providing funds.” Id. (quoting In re Hammarstrom, 95 B.R. 160, 165 (Bankr.N.D.Cal.1989) (holding educational loan initially made by commercial bank but immediately purchased by nonprofit organization was nondischargeable, in that parties contemplated from outset that nonprofit organization would purchase loan)). The loan documentation in this case provides that: [a]fter The Education Resources Institute, Inc. (hereinafter referred to as “TERI”) agrees to guarantee any loan [bank agrees to"
},
{
"docid": "9816555",
"title": "",
"text": "MEMORANDUM OPINION MARK W. VAUGHN, Chief Judge. The Court has before it the complaint of Christopher McClain (“Debtor”/“Plaintiff”), in which he seeks a discharge of certain student loans currently held by The Educational Resources Institute, Inc. (“TERI”) and Educational Credit Management Corporation (“ECMC”) (collectively “Defendants”) on the grounds of undue hardship pursuant to § 523(a)(8) of the United States Bankruptcy Code (the “Code”). In addition, the Court has Debt- or’s Motion for the Discharge of TERI’s Debt and TERI’s Motion For and Regarding Application of the In re Grigas Standard. For the reasons set out below, the Court denies the Debtor’s request for a discharge of his educational loans. The Court also holds that § 523(a)(8) is applicable to TERI. Additionally, since the Debtor has the ability to repay the student loans under the terms set forth by the Defendants, it is unnecessary for this Court to consider TERI’s request for a reevaluation of the In re Grigas repayment standard. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§ 1334 and 157(a) and the “Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire,” dated January 18, 1994 (DiClerico, C.J.). This is a core proceeding in accordance with 28 U.S.C. § 157(b). Facts The Debtor is a 34 year-old, single male, who is presently engaged. He received a Bachelor’s Degree from the University of New Hampshire in 1989 and a Juris Doctor Degree from Vermont Law School in 1992. On August 30, 2000, the Debtor filed for bankruptcy under Chapter 7 of the Code. On Schedule F accompanying his bankruptcy petition, the Debtor listed numerous outstanding student loans, which are the basis of the instant dispute. The Plaintiffs loans with Ameritrust/Key, which were subsequently assigned to TERI, presently have balances of $15,129.06, $16,838.36 and $5,165.20. Plaintiffs American Student Assistance (“ASA”) loans, which were assigned to ECMC, presently have a total balance of $77,027.35. The Debtor argues that the Court should declare these loans dis-chargeable pursuant to § 523(a)(8) because their payment would inflict"
},
{
"docid": "1915561",
"title": "",
"text": "at issue constitute “loans” within the meaning of section 523(a)(8)(A)(i). The debtor took out the Loans for the purpose of attending the certificate program. The debtor used the proceeds of the First Loan to attend the certificate program. And, the debtor used part of the proceeds of the Second Loan to attend the certificate program, and the remainder of the proceeds to buy a truck to transport himself to certificate program classes. Despite the existence of several undisputed material facts, summary judgment cannot be granted under section 523(a)(8)(A)(i) because there is no evidence that the Loans were made under a program funded by a nonprofit institution. Wells Fargo has not established that the Loans were made under a program funded by a nonprofit institution. It has simply asserted that the Loans themselves were guaranteed by the nonprofit institution, TERI. Wells Fargo’s assertions do not identify the program under which the Loans were extended, address the relationship between Wachovia and TERI, or otherwise show that TERI funded the program under which the Loans were made. Cf. O’Brien v. First Marblehead Educ. Res., Inc. (In re O’Brien), 419 F.3d 104, 105-06 (2d Cir. 2005) (concluding that a student loan was excepted from discharge, based on trial court’s undisputed findings that a nonprofit institution had guaranteed the loan and funded the program under which the loan was disbursed); In re Hammarstrom, 95 B.R. at 165-66 (concluding that student loan was made under a program funded by a nonprofit institution, where nonprofit and lender had entered into an agreement that required nonprofit to buy lender’s student loans). The existence of a guarantee from a nonprofit institution is not, by itself, enough. These gaps in Wells Fargo’s assertions doom its summary judgment motion as it relates to section 523(a)(8)(A)(i). There is some information in the record that indicates that the Loans may have been extended under a program funded by a nonprofit institution. The signature page of each of the Agreements contains a text box entitled “Loan Program Information” that identifies each of the Loans as a “TERI Continuing Education Loan.” [Stip. Ex. H &"
},
{
"docid": "15021608",
"title": "",
"text": "owed the total principal sum of $90,051.00, or $82,818.00 if the EduCap indebtedness is reduced from $14,463.97 to $7,230.00. Nary paid on his student loans from 1990 through May 1996, when he entered the psychiatric hospital. Although Nary made payments of approximately $5,938.00 toward the Hinson-Hazelwood GSL and Hinson-Hazelwood SLS loans, which were consolidated into the Ford loan, he has made no payments on the Ford loan itself. Nary paid $23,587.00 to EduCap, $5,130.00 to EAB, approximately $16,000 to $17,000 to TERI, and $2,249.00 to SMU. He made $10,000 in loan payments to a creditor whom his records do not identify. In sum, he has paid about $33,000 toward his student loans. Ill To achieve the goal of affording a debtor a fresh start, the Bankruptcy Code provides that many debts are dischargeable. Section 523 of the Code contains several exceptions to discharge that reflect Congress’ determination “that the creditors’ interest in recovering full payment of debts ... outweighed the debtors’ interest in a complete fresh start.” In re McLeroy, 250 B.R. 872, 878 (N.D.Tex.2000) (Cummings, J.) (quoting Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). One exception relates to student loan debt. Student loan “debt is not automatically discharged or automatically excepted from discharge in a bankruptcy proceeding. Instead, student loan debt is afforded its own standard of dischargeability, namely, section 523(a)(8)[.]” Cara A. Morea, Note, Student Loan Discharge in Bankruptcy — It Is Time for a Unified Equitable Approach, 7 Am.BaNKR.Inst.L.Rev. 193 (1999) (footnotes omitted) [hereinafter Morea, Student Loan Discharge in Bankruptcy ]. Section 523(a)(8) “was enacted to prevent indebted college or graduate students from filing for bankruptcy immediately upon graduation, thereby absolving themselves of the obligation to repay their student loans.” In re Hornsby, 144 F.3d 433, 436-37 (6th Cir.1998) (citing In re Cheesman, 25 F.3d 356, 359 (6th Cir.1994)). It limits the dis-chargeability of education loans “unless excepting such debt from discharge under this paragraph will impose an undue hardship on the debtor and the debtor’s dependents[.]” 11 U.S.C. § 523(a)(8). A discharge under section 727, 1141, 1228(a), 1228(b), or"
},
{
"docid": "19664312",
"title": "",
"text": "or in part by a governmental unit or nonprofit institution.” Debtor argues that he did not receive a loan through a “program funded” by Columbia College as required by § 523(a)(8). The Court’s review of the cases considering the question of whether advanced fees are a “loan” reveal that most of those cases did not reach the issue of whether the loan was made under a “program funded” by a non-profit institution. In this case, however, that issue is not stipulated to and must be established in order for § 523(a)(8) to except the loan from discharge. “Program” has been described as a voluntary, established practice, complete with guidelines specifying eligibility requirements. See, e.g., DePasquale v. Boston Univ. School of Dentistry, 211 B.R. 439, 441 (Bankr.D.Mass.1997), rev’d on other grounds, 225 B.R. 830 (1st Cir. BAP 1998). It seems clear that the Deferred Payment Plan as set forth in Columbia College’s handbook is a “program” as the handbook sets forth guidelines and policies regarding the Deferred Payment Plan. See Stip. ¶ 11. The question then becomes whether this program was “funded” by Columbia College . In In re O’Brien, 299 B.R. 725, 730 (Bankr.S.D.N.Y.2003), aff'd, 419 F.3d 104 (2nd Cir.2005), the debtor received a Law Access student loan and TERI, a nonprofit institution, guaranteed the loan. The issue was whether the guarantor of a loan “funded” such loan as required by the statute. That court determined that Congress intended to include all loans made under a program in which a nonprofit institute plays any meaningful part in providing funds and that the term should be liberally construed. O’Brien, 299 B.R. at 730 (citing In re Hammarstrom, 95 B.R. 160, 165 (Bankr.N.D.Cal.1989)). The bankruptcy court found that “the word ‘funded’ in § 523(a)(8) encompasses any meaningful contribution to the provision of the loan, including the guarantee of the loan” and the Circuit Court affirmed, and found that the guarantor was “clearly devoting some of its financial resources to supporting the program” and thus had “funded” such program. O’Brien, 419 F.3d at 106. The court in In re Drumm determined that the"
},
{
"docid": "9359237",
"title": "",
"text": "HISTORY The debtor is an attorney who filed a Chapter 13 bankruptcy petition on Sep tember 2, 1998 listing approximately $95,-000 in student loan debt. On May 3, 1999, the debtor filed an amended Chapter 13 plan which provides that confirmation of the debtor’s plan shall constitute a finding that it would be an undue hardship on the debtor to repay his student loan creditors and that such debt will not be excepted from discharge in accordance with 11 U.S.C. § 523(a)(8). The amended plan was served on American Student Assistance (“ASA”) and The Educational Resources Institute, Inc. (“TERI”), two student loan creditors who have filed claims totaling almost $130,000. Despite language in the debtor’s amended plan that student loan debts will be discharged because they impose an undue hardship on the debtor, neither ASA nor TERI filed an objection to the debtor’s amended Chapter 13 plan. At the first hearing on confirmation of the plan, the Court sua sponte raised the issue of whether the student loan dischargeability provision contained in the debtor’s plan complies with the requirements of the Bankruptcy Code and whether its inclusion in the plan prohibits confirmation. Debt- or’s counsel filed with the Court a memorandum of law in support of confirmation and served a copy of the memorandum on the student loan creditors. Neither creditor filed a response with the Court. III. DISCUSSION Section 1328(a)(2) of the Bankruptcy Code provides in relevant part: As soon as practicable after completion by the debtor of all payments under the [Chapter 13] plan ... the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt— (2) of the kind specified in paragraph ... (8) ... of section 523(a) ... of this title .... 11 U.S.C. § 1328(a)(2). Section 523(a)(8) of the Bankruptcy Code provides: A discharge under ... this title does not discharge an individual debtor from any debt—• (8) for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded"
},
{
"docid": "1967417",
"title": "",
"text": "rather, merely guaranteed the loans.” p. 7. The Klein court held that “[Debtor] misreads the plain language of the statute in asserting that the first and second clauses of § 523(a)(8) are mutually exclusive.” p. 8. The Court pointed out that the two clauses deal with different issues. “The first clause deals solely with loans guaranteed or insured by governmental units. The second clause has a broader and different focus since it encompasses governmental units and nonprofit institutions and focuses on loan programs and not on particular loans.” p. 8. Thus, the Bankruptcy Court in Klein reasoned that “funded” had a concomitantly broad and inclusive meaning, which embraced a loan guaranteed by a nonprofit institution. The Klein court cited Educ. Res. Inst., Inc. v. Hammarstrom (In re Hammarstrom), 95 B.R. 160, 165 (Bankr.N.D.Cal.1989) with approval to demonstrate this proposition. “Congress intended to include within section 523(a)(8) all loans made under a program in which a nonprofit institute plays any meaningful part in providing funds.” Id. at 165 (emphasis supplied). The Court in Klein held that the guarantee of the loan constituted a “meaningful part in providing funds” and thus a guaranteeing nonprofit institution could be considered to have “funded” the educational loan. This Court agrees that the word “funded” should be liberally construed to include “any meaningful contribution” to the provision of the loan, including the guarantee of the loan. In this case, TERI states in the Affidavit of Michael Beatty, Esq. that without TERI’s guarantee, Key Bank would not have loaned the funds to debtor. Debtor also admits that TERI “facilitate[d] the extension of student loan credit by helping to induce for-profit lenders like Key Bank to make loans to credit worthy students...” Thus the TERI guarantee played a meaningful part in providing the funds to Debtor and TERI can be said to have “funded” the Law Access Loan at issue within the ambit of § 523(a)(8). Finally, Debtor argues that public policy mitigates in favor of granting his client a discharge of her student loan debt because she does not fit the “profile of a student loan abuser”"
},
{
"docid": "9359247",
"title": "",
"text": "it alone does not provide any guidance on the issue.”). Permitting a hardship discharge in the manner proposed by the debtor in this case would negate the requirements of section 523(a)(8) and would be contrary to the public policy considerations underlying that provision of the Bankruptcy Code. See Mammel, 221 B.R. at 242. Fourth, the debtor argues that it is appropriate to confirm his plan because the student loan creditors were given notice, due process, and an opportunity to be heard. See id. Even though neither ASA nor TERI has appeared to object to the dischargeability of its loans in this case, as noted above, the Court retains an independent obligation to examine plan provisions and ensure that they comply with the Bankruptcy Code. With respect to notice and due process, the Court notes that the student loan creditors were not specifically mentioned by name in the debtor’s plan nor was the student loan dischargeability provision well highlighted in the plan. In addition, ASA and TERI were served with copies of the plan not at the address listed on their respective proofs of claims, but rather at some other address that the debtor had for these creditors; TERI was not served with a copy of the debtor’s memorandum at the address listed in its proof of claim. Given these facts, there can be no assurance that these creditors received sufficient notice to satisfy due process. Further, under ordinary circumstances, it is unnecessary for student loan creditors to file a claim or to object to confirmation as they are entitled to rely on the non-dischargeability provisions of section 523(a)(8). See id.; Ridder v. Great Lakes Higher Educ. Corp. (In re Ridder), 171 B.R. 345, 348 n. 10 (Bankr.W.D.Wis.1994) (“Student loan debts are nondis-chargeable and self proving.”). “Under the Code, Debtor has the burden to raise the issue of dischargeability. Allowing this provision would shift the burden to student loan creditors. It would require them to appear at the confirmation hearing and raise the issue or lose the rights preserved to them by the Code.” Mammel, 221 B.R. at 243; see also"
},
{
"docid": "1915560",
"title": "",
"text": "must be “educational loan[s]” or “educational benefit overpayment^].” 11 U.S.C. § 623(a)(8)(A)(i). Second, the loans or overpayments must have been made under a “program.” Id.; see Educ. Res. Inst., Inc. v. Hammarstrom (In re Hammarstrom), 95 B.R. 160, 165 (Bankr. N.D. Cal. 1989). Third, the program must have been funded, in whole or in part, by a governmental unit or a nonprofit institution. 11 U.S.C. § 523(a)(8)(A)(i); see In re Hammarstrom, 95 B.R. at 165. The requirement of “funding” applies to programs, not to specific loans. See, e.g., Kidd v. Student Loan Xpress, Inc. (In re Kidd), 458 B.R. 612, 620 (Bankr. N.D. Ga. 2011); Educ. Res. Inst., Inc. v. Taratuska (In re Taratuska), No. 07-11938-RCL, 2008 WL 4826279, at *3 (D. Mass. Aug. 25, 2008) (interpreting pre-BAPCPA version of section 523(a)(8), which contained the same language at issue here); Hemar Serv. Corp. of Am. v. Pilcher (In re Pilcher), 149 B.R. 595, 598 (9th Cir. BAP 1993) (same); In re Hammarstrom, 95 B.R. at 165 (same). Several material facts are not disputed. The Loans at issue constitute “loans” within the meaning of section 523(a)(8)(A)(i). The debtor took out the Loans for the purpose of attending the certificate program. The debtor used the proceeds of the First Loan to attend the certificate program. And, the debtor used part of the proceeds of the Second Loan to attend the certificate program, and the remainder of the proceeds to buy a truck to transport himself to certificate program classes. Despite the existence of several undisputed material facts, summary judgment cannot be granted under section 523(a)(8)(A)(i) because there is no evidence that the Loans were made under a program funded by a nonprofit institution. Wells Fargo has not established that the Loans were made under a program funded by a nonprofit institution. It has simply asserted that the Loans themselves were guaranteed by the nonprofit institution, TERI. Wells Fargo’s assertions do not identify the program under which the Loans were extended, address the relationship between Wachovia and TERI, or otherwise show that TERI funded the program under which the Loans were made. Cf."
},
{
"docid": "9816561",
"title": "",
"text": "make to debtor, bank] will send [debtor] a Disclosure Statement. In addition to other information, the Disclosure Statement, which [debt- or] agree[s] shall be incorporated in and made part of this Note, will tell [debtor] the amount of [debtor’s] disbursement and the amount of [bank’s] origination fee and the guaranty fee. As the above language illustrates, Ameri-trust/Key’s funding of the loans at issue was conditioned upon TERI’s participation in guaranteeing the loans. Thus, TERI played a meaningful part in procurement of the loans, making them nondischargeable pursuant to the language of § 523(a)(8). B. Dischargeability of Student Loans The issue before the Court is whether the Debtor’s circumstances, income, and expenditures establish that payment of his student loans would inflict undue hardship upon him, such that the loans are dischargeable. Section 523(a)(8) provides that an educational loan shall not be discharged, “unless excepting such debt, from discharge ... will impose an undue hardship on the debtor and the debtor’s dependents....” 11 U.S.C. § 523(a)(8). The Code does not specifically define “undue hardship.” However, in Garrett v. New Hampshire Higher Educ. Assistance Found. (In re Garrett), 180 B.R. 358 (Bankr.D.N.H.1995), this Court adopted the test set forth by the Court of Appeals for the Second Circuit in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2nd Cir.1987) (per curiam) in determining what constitutes undue hardship. The Brunner test requires the Debtor to make a three-part showing: (1) that the debtor cannot maintain, based on current income and expenses, a “minimal” standard of living for [himself] and [his] dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans. In re Garrett, 180 B.R. at 362 (citations omitted). In applying this test to the Debt- or’s situation, this Court must first determine whether he can meet his burden of demonstrating that he “cannot maintain ... a ‘minimal’ standard of living for"
},
{
"docid": "9816560",
"title": "",
"text": "unit or nonprofit institution ....” 11 U.S.C. § 523(a)(8). Congress used expansive language in its designation of which student loans are non-dischargeable, indicating that the program pursuant to which the loan was made must be funded in part by a non-profit entity, not the loan itself. See HEMAR Service Corp. of America v. Pilcher (In re Pilcher), 149 B.R. 595, 597 (9th Cir. BAP 1993). Further, the language “made under any program funded in whole or in part by ... a nonprofit institution,” indicates that “Congress intended to include within section 523(a)(8) all loans made under a program in which a nonprofit institution plays any meaningful part in providing funds.” Id. (quoting In re Hammarstrom, 95 B.R. 160, 165 (Bankr.N.D.Cal.1989) (holding educational loan initially made by commercial bank but immediately purchased by nonprofit organization was nondischargeable, in that parties contemplated from outset that nonprofit organization would purchase loan)). The loan documentation in this case provides that: [a]fter The Education Resources Institute, Inc. (hereinafter referred to as “TERI”) agrees to guarantee any loan [bank agrees to make to debtor, bank] will send [debtor] a Disclosure Statement. In addition to other information, the Disclosure Statement, which [debt- or] agree[s] shall be incorporated in and made part of this Note, will tell [debtor] the amount of [debtor’s] disbursement and the amount of [bank’s] origination fee and the guaranty fee. As the above language illustrates, Ameri-trust/Key’s funding of the loans at issue was conditioned upon TERI’s participation in guaranteeing the loans. Thus, TERI played a meaningful part in procurement of the loans, making them nondischargeable pursuant to the language of § 523(a)(8). B. Dischargeability of Student Loans The issue before the Court is whether the Debtor’s circumstances, income, and expenditures establish that payment of his student loans would inflict undue hardship upon him, such that the loans are dischargeable. Section 523(a)(8) provides that an educational loan shall not be discharged, “unless excepting such debt, from discharge ... will impose an undue hardship on the debtor and the debtor’s dependents....” 11 U.S.C. § 523(a)(8). The Code does not specifically define “undue hardship.” However, in Garrett"
}
]
|
709456 | practically all of the highways of Texas, the burden of contention settled on the conditions on the Highways last named. These applications were combined with other applications including that of the Galveston Truck Line Company and the hearing took wide range, covering not only the question of the condition of the highways as to their ability to bear traffic burdens, and as to congestion and conditions of safe travel thereon, but as to the adequacy of existing transportation facilities, and the effect of the proposed operations upon.them. The application of the Galveston Truck Line was first acted on. This was refused on the ground that to grant it would impair existing transportation facilities. This court, in REDACTED Shortly thereafter, on January 25, when these applications were decided, the commission, in deference to the opinion of this court in the Galveston Truck Line Case, rendered its decision on these applications wholly upon considerations of traffic conditions, what the highways were constructed to bear, the congestion of traffic on them, and excluding from consideration all questions of competition in carrier service, rendered an opinion which concluded as follows: “After careful consideration of the testimony concerning the nature of the proposed service, the traffic conditions on | [
{
"docid": "4681500",
"title": "",
"text": "these trucks in interstate commerce into and out of the state of Texas. Asserting, however, that it had a right to refuse upon considerations of public necessity and convenience, a permit to engage in interstate commerce wholly within the state of Texas it refused to grant applicant permission to engage in such commerce until after a hearing had been had on whether the territory sought to be served in that business was already adequately served by common carriers, and as to the effect the granting of the permit would have on such carriers. Without extended discussion, we think it sufficient to say that we find the action of the commission in refusing to issue the permit requested was wholly without warrant of law. Upon the application and showing made that plaintiff intended to and would engage only in interstate commerce, and that it had complied with all o£ the provisions of the statute properly applicable to the doing of such business, it was the duty of the commission to issue the permit. Sage v. Baldwin (D. C.) 55 F.(2d) 968, 970. While it is true that the eases in which it has been laid down that a state commission might not, upon considerations of public convenience and necessity, refuse a permit to persons for the operation of trucks engaged wholly in interstate commerce, had to do with commerce coming into and out of the state, that is, movements actually crossing state lines, no difference in principle can, we think, be drawn between a link in interstate commerce which operates wholly within a state, and one which crosses the state line. Since, therefore, the r'efusal by the commission to issue a permit is based, not upon considerations, of traffic safety, or of the protection of the highways from injury to them, or from congestion thereof, but only of the commerce itself and the business of those who transport it, that is, ot“ whether there is already adequate provision for handling such commerce and the effect upon those engaged in it which the granting of the permit will have, the ruling necessarily"
}
]
| [
{
"docid": "13758611",
"title": "",
"text": "back haul to transport commodities from Houston to Dallas over Federal Highway No. 75 for F'ulton Bag & Cotton Mills, and the Dal-Tex Coffee Company. “Edmund J. Kahn, testifying for the applicant, stated that the major portion of the traffic would be the transportation of cotton in bales for J. Kahn & Company and that the principal portion of such traffic would move over Federal Highway No. 75 into Houston; that on the back haul it was their desire to transport commodities for Fulton Bag & Cotton Mills and Dal-Tex Coffee Company from Houston to Dallas over said Federal Highway No. 75, but would not transport property for other than the above named three joj qjodsuuj} pjnoAS. pun ‘snug jo suosjod the latter two from Houston to Dallas only; that some 80% or more of the movement would be from September to April annually, and that last year J. Kahn & Company moved approximately 160,000 bales of cotton by truck within that ijeriod; that this cotton would be moved from points in Oklahoma, North, Northeast, Northwest and Central portions of Texas, from whatever points the same was purchased. “Other witnesses, both for the appplicant and for the protestants, testified at length in regard to congestion of the highways, as well as the character and conditions of such highways, construction and safety of drainage structures along the principal highways covered by the proposed operation, such witnesses including the State Highway Engineer. Considerable testimony was also given in regard to traffic counts by such witnesses, all of which is a part of the record in this hearing. It was also disclosed from such testimony that there were quite a number of narrow or one-way bridges over the route applied for, and that some of these structures were not in condition to carry leavy loads. “The Commission finds that some of the highways over which a portion of the proposed traffic would move are not congested and are so constructed and maintained as to lead the Commission to believe that they could be expected to reasonably take care of the service applied for"
},
{
"docid": "22370109",
"title": "",
"text": "of this character are not for the courts, but for the legislature, which is entitled to form its own judgment. Sproles v. Binford, 286 U. S. 374, 388-389. Leaving out of consideration common carriers by trucks, impairment of the railway freight service, in the very nature of things, must result, to some degree, in adding to the burden imposed upon the highways. Or stated conversely, any diversion of traffic from the highways to the railroads must correspondingly relieve the former, and, therefore, contribute directly to their conservation. There is thus a substantial relation between the means here adopted and the end sought. This is made plain by the Sproles case, supra (p. 394) : “ The State has a vital interest in the appropriate utilization of the railroads which serve its people, as well as in the proper maintenance of its highways as safe and convenient facilities. The State provides its highways and pays for their upkeep. Its people make railroad transportation possible by the payment of transportation charges. It cannot be said that the State is powerless to protect its highways from being subjected to excessive burdens when other means of transportation are available. The use of highways for truck transportation has its manifest convenience, but we perceive no constitutional ground for denying to the State the right to foster a fair distribution of traffic to the end that all necessary facilities should be maintained and that the public should not be inconvenienced by inordinate uses of its highways for purposes of gain. This is not a case of a denial of the use of the highways to one class of citizens as opposed to another, or of limitations having no appropriate relation to highway protection.” What has just been said applies in the main to the other challenged provision authorizing the commission to prescribe minimum rates not less than those prescribed for common carriers for substantially the same service. This provision, by precluding the contract carriers from rendering service at rates under those charged by the railroad carriers, has a definite tendency to relieve the highways by diverting"
},
{
"docid": "4631693",
"title": "",
"text": "of contention settled on the conditions on the Highways last named. These applications were combined with other applications including that of the Galveston Truck Line Company and the hearing took wide range, covering not only the question of the condition of the highways as to their ability to bear traffic burdens, and as to congestion and conditions of safe travel thereon, but as to the adequacy of existing transportation facilities, and the effect of the proposed operations upon.them. The application of the Galveston Truck Line was first acted on. This was refused on the ground that to grant it would impair existing transportation facilities. This court, in Galveston Truck Line Corporation v. C. J. Allen, 2 F. Supp. 488, holding that the commission' had no authority to refuse permits to engage in interstate commerce on considerations of that kind, granted an injunction against the commission restraining them from interfering with the operation of that line. Shortly thereafter, on January 25, when these applications were decided, the commission, in deference to the opinion of this court in the Galveston Truck Line Case, rendered its decision on these applications wholly upon considerations of traffic conditions, what the highways were constructed to bear, the congestion of traffic on them, and excluding from consideration all questions of competition in carrier service, rendered an opinion which concluded as follows: “After careful consideration of the testimony concerning the nature of the proposed service, the traffic conditions on the highways, the character and type of construction of said highways, and the use sought to be made of same by the applicants without any consideration of the adequacies of existing transportation facilities and the effect of the proposed operations by the applicant upon such existing transportation facilities, the Commission is of the opinion and finds the following facts: “1: That it is doubtful whether or not the service proposed by this applicant would strictly conform to the definition of a contract carrier. “2: That the extent and the manner of the use of the highways proposed by the applicants will unreasonably interfere with the use of the highways"
},
{
"docid": "6548250",
"title": "",
"text": "above referred to, since each of them has direct relation to highway control and regulation; in fact, speaks the very language of such power. The real attack of plaintiff and interveners is pressed against those provisions of the act which, based upon considerations of the public interest in the establishment and maintenance of a'dependable transportation system for the state, authorize the commission to grant or refuse permits to contract carriers upon consideration, not only of questions of congestion upon .the highways, the fitness and capacity of the contract applicant to conduct the business which he offers to do, but of conditions prevailing along the route proposed as to already existing adequate service by common carriers. Especially is the attack pressed against the right accorded by the act to the commission to grant or refuse the permit upon' consideration of the whole transportation and traffic structure of the state, and upon a determination of whether the stability and integrity of that structure will he bettered or injured by the grant. They take as their shibboleths the pronouncements of the Supreme Court in Michigan v. Duke, 266 U. S. 571, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Buck v. Kuykendall, 267 U. S. 314; Frost v. Commission, 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457; and Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264, that a Legislature may not by its fiat convert a contract carrier into a common carrier, and that, while the state may regulate the highways, it may not regulate private business done upon them. They say that the terms of the act authorizing the refusal of a permit, if “the Commission shall be of the opinion that the proposed operation of any such contract will impair the efficient public service of any authorized common carrier then adequately serving the same territory,” authorizing it to fix minimum rates to be charged by contract carriers in no event less than those charged by common carriers, forbidding rebates and"
},
{
"docid": "22804109",
"title": "",
"text": "States. This highway was planned by the State Highway Department, acting in conjunction with the Bureau of Public Roads of the Federal Government. It is part of the secondary or inter-county system; but because of the expected traffic, the district engineer of the Bureau of Roads, in recommending its approval, characterized it as a route of primary importance. The underpass was prescribed, not upon consideration of local safety needs, but in conformity to general plans of the federal and state highway engineers, as being a proper engineering feature in the construction of a nation-wide system of highways for high speed motor vehicle transportation; and because it is the policy of the federal authorities to make the avoidance of grade crossings a condition of a grant in aid of construction. The requirement of the underpass, and the payment by the Railway under the 1921 Tennessee Act of one-half the cost of separating the grades, are results of the Federal-aid legislation. Final payment of Federal aid on this project was conditioned upon commencement of the construction of this underpass. 6. The new highway, paralleling lines of the Railway and intended for rapid-moving motor vehicles, will, through competition for both freight and passenger traffic, seriously decrease rail traffic and deplete the Railway’s revenue and net earnings. Practically all vehicles moving upon it will directly or indirectly compete for traffic with the Railway. Buses will operate over the new highway in regular scheduled movements in the same way as passenger trains. Trucks, some of them 70 feet in length and many weighing with load as much as 50,000 pounds, operated by common carriers, by contract carriers and by private concerns, will compete for the most profitable classes of freight. The competition besides reducing the volume of traffic will compel reduction of rates. How disastrously such competition will affect the Railway’s traffic and revenues is shown by its own experience since the State commenced, with the aid of the Federal Government, a system of highways paralleling the lines of the Railway. The gross passenger revenue fell from $5,661,011.08 in 1920 to $2,095,942.29 in 1930; and"
},
{
"docid": "12780467",
"title": "",
"text": "effect. (2) That his trucks were in excellent mechanical condition and properly registered for operation in the state in which they operate, and that his trucks were in every way suitable to operate safely on the highways and to transport property within and through the state of Texas. (3) That he had offered to comply with every appropriate and applicable law of the state of Texas, and all rules and regulations of the Railroad Commission of T exas. He alleged that the aforesaid acts of the respondents and the threatened continued action'of interfering with the conduct of his business are unlawful, arbitrary, and without sanction of law, state or federal, and constitute an invasion of his rights guaranteed under the laws of the Constitution of the United States in the following particulars: (1) That said acts deprived him of his rights under the Constitution vesting in the Congress of the United States exclusive jurisdiction over the regulation of interstate and foreign commerce. Const, art. 1, § 8, cl. 3. (2) That said action and conduct constituted an unlawful deprivation of his property and property rights under the due process clause of the Fourteenth Amendment to the Constitution. Complainant failed to allege affirmatively that he had applied to the Railroad Commission of the state of Texas for a permit, and that he had shown to the Railroad Commission that the structure of the highways proposed to be used by him was such that their proper preservation would not be impaired by the use sought by him. Moreover, he failed to allege that the ■safety of the public upon said highways over which he sought his route would not be unreasonably endangered, and that the additional use which he expected to impose upon said highways would not so ■congest traffic as to render them unsafe for the traveling public. Likewise, he did not allege affirmatively that the Railroad ■Coipmission of Texas had made an investigation of his application to use these highways and found as a fact that the use to which he intended to put them would not unduly render them"
},
{
"docid": "13758612",
"title": "",
"text": "Northwest and Central portions of Texas, from whatever points the same was purchased. “Other witnesses, both for the appplicant and for the protestants, testified at length in regard to congestion of the highways, as well as the character and conditions of such highways, construction and safety of drainage structures along the principal highways covered by the proposed operation, such witnesses including the State Highway Engineer. Considerable testimony was also given in regard to traffic counts by such witnesses, all of which is a part of the record in this hearing. It was also disclosed from such testimony that there were quite a number of narrow or one-way bridges over the route applied for, and that some of these structures were not in condition to carry leavy loads. “The Commission finds that some of the highways over which a portion of the proposed traffic would move are not congested and are so constructed and maintained as to lead the Commission to believe that they could be expected to reasonably take care of the service applied for without proving an undue burden upon the same, and would not unreasonably interfere with the proper use of such highways by the general traveling public in the ordinary pursuits of life. This appears to be true of portions of North, Northeast and Northwest Texas, and, if the applicants had confined themselves to such highways, the Commission would have unhesitatingly granted authority to operate a contract carrier motor carrier service in such portions of the State where such conditions were found to exist. The whole operation, however, depending as it does upon entering the port city of Houston, where all of the cotton to be transported was to be shipped to other states or to foreign countries, and where all of the back loads were to be transported from, made it incumbent up-on the Commission to either authorize such operation in and out of Houston, or else a permit would be of no benefit to the applicant. “On numerous occasions this Commis sion has been called upon to examine into the conditions existing along the principal"
},
{
"docid": "4631694",
"title": "",
"text": "in the Galveston Truck Line Case, rendered its decision on these applications wholly upon considerations of traffic conditions, what the highways were constructed to bear, the congestion of traffic on them, and excluding from consideration all questions of competition in carrier service, rendered an opinion which concluded as follows: “After careful consideration of the testimony concerning the nature of the proposed service, the traffic conditions on the highways, the character and type of construction of said highways, and the use sought to be made of same by the applicants without any consideration of the adequacies of existing transportation facilities and the effect of the proposed operations by the applicant upon such existing transportation facilities, the Commission is of the opinion and finds the following facts: “1: That it is doubtful whether or not the service proposed by this applicant would strictly conform to the definition of a contract carrier. “2: That the extent and the manner of the use of the highways proposed by the applicants will unreasonably interfere with the use of the highways by the general public for highway purposes. “3: That the use sought to be made of the highways proposed to be used by said applicant will constitute a future undue burden on said highways if the Commission should grant such permit. “4: That the use of the streets of some of the cities and towns through which such operations will extend will unreasonably interfere with the use of such streets by the general public for ordinary purposes. “It is therefore ordered, adjudged and decreed by this Commission, that the application of-for a permit to operate as a contract motor carrier in the transportation of property for hire as set forth in the application be, and in all things is, hereby denied.” Contesting this order as beyond the power of the commission to make, these suits have been filed. Prior decisions of this court, Sproles v. Binford (D. C.) 52 F.(2d) 730, affirmed 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167; Stephenson v. Binford (D. C.) 53 F.(2d) 509, affirmed 287 U."
},
{
"docid": "13758619",
"title": "",
"text": "months of the spring and summer traffic along such highway might not be of sufficient volume as to constitute congestion, would not relieve this Commission of the duty placed upon it by the Legislature to restrict such traffic to the public safety for the entire year. After considering the evidence, the law, and its own rules and regulations, the Commission is of the opinion, and it is therefore “Ordered that the application of the Texport Carrier Corporation for a permit authorizing the operation of a contract carrier motor carrier service be, and the same is hereby in all things denied. “Railroad Commission of Texas «[Signed] “Lon A. Smith, Chairman “C. V. Terrell, Commissioner.” Article 911b, § 22b: “Declaration of Policy. The business of operating as a motor carrier of property for hire along the highways of this State is declared to be a business affected with the public interest. The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and hazards on publie highways and make it imperative \"that more stringent regulation should be employed, to the end that the highways máy be rendered safer for the use of the general public; that the wear of such highways may be reduced; that discrimination in rates charged may be eliminated; that congestion of traffic on the highways may be minimized; that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the general public.”"
},
{
"docid": "13758598",
"title": "",
"text": "affidavit of Knapp covering highway and traffie conditions on No. 75 and other highways, and from the voluminous record made before the Commission the lengthy testimony of Knapp to the same matters. They also offered the testimony of persons living along the line which plaintiff desired a permit to haul over as to highway and traffie conditions. Plaintiff’s primary position is that it made out its ease for relief by merely showing the interstate character of the proposed operations for which permit was denied, and that other permits over the same highway, some for interstate and some for intrastate commerce, have been since granted. It is quite plain that this will not do. The Commission, when operating within the sphere of its powers as statutory administrator to protect the highways of the state from injury and destruction, and to secure the safety and convenience of those primarily entitled to travel thereon, has authority over contract carriers hauling interstate commerce to regulate and prohibit, as well as over those hauling intrastate. In the case of an interstate carrier, as in the ease of an intrastate carrier, if the order refusing a permit to a contract carrier hauling goods rests on findings grounded on considerations of highway safety and convenience, the same presumption attends the order and findings and the same burden is on the complainant to overthrow them. Wald Storage & Transfer Co. v. Smith, 200 U. S. 596, 54 S. Ct. 129, 78 L. Ed. 524; Bradley v. Public Utilities, 289 U. S. 92, 53 S. Ct. 577, 77 L. Ed. 1053, 85 A. L. R. 1131; cf. Interstate Transit, Inc. v. Lindsey, 283 U. S. 186, 51 S. Ct. 380, 75 L. Ed. 963. It is only when the Commission has undertaken to exercise control not over the safety of the highways and of the traveling public, but over the commerce itself, that its orders refusing permits to interstate carriers are inoperative. Allen v. Galveston Truck Line, 289 U. S. 708, 53 S. Ct. 694, 77 L. Ed. 1463; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct."
},
{
"docid": "12780468",
"title": "",
"text": "constituted an unlawful deprivation of his property and property rights under the due process clause of the Fourteenth Amendment to the Constitution. Complainant failed to allege affirmatively that he had applied to the Railroad Commission of the state of Texas for a permit, and that he had shown to the Railroad Commission that the structure of the highways proposed to be used by him was such that their proper preservation would not be impaired by the use sought by him. Moreover, he failed to allege that the ■safety of the public upon said highways over which he sought his route would not be unreasonably endangered, and that the additional use which he expected to impose upon said highways would not so ■congest traffic as to render them unsafe for the traveling public. Likewise, he did not allege affirmatively that the Railroad ■Coipmission of Texas had made an investigation of his application to use these highways and found as a fact that the use to which he intended to put them would not unduly render them unsafe for traffic or be unreasonably destructive of the highways. The defendants answered the bill and denied that the complainant had been engaged in the bona fide operation as a common carrier for hire in interstate or foreign commerce either prior to June 1, 1935, or since that time, and averred that he\" had been using the highways in violation of the laws of the state of Texas. They admitted, of course, the passage of the Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., by Congress, but denied that said act superseded the power of the Commission to provide for the safety of the traveling public on the roads, as well as the preservation of the highways of the state, and alleged specifically that the Railroad Commission “has the jurisdiction and power to prohibit the Use of the highways of Texas for the transportation of property for hire if such highways are not of proper construction or in proper condition to maintain said traffic, or if the contemplated use of said highways"
},
{
"docid": "13758614",
"title": "",
"text": "highways of this State, with especial reference to the character and condition of such highways, the use made of the same by the general traveling public, as well as by carriers engaged in the transportation of property for hire, and the traffic conditions obtaining along such highways in the towns and cities traversed thereby. In determining the question of traffic over the cardinal highways of the State, the Commission has not been unmindful of its mandatory duty to inquire, not only into present conditions, but also to guard against future undue burdens upon the State’s highways in order that the general public might pursue its ordinary duties without unnecessary danger to life and property, or without unreasonable interference. “The Commission finds that approximately 1,000,000 people reside in the counties traversed by Federal Highway No. 75 between Dallas and Houston, and that a very large proportion of all vehicles registered for the last year, are owned and operated by the people of such counties. That the comparatively recent completion of this highway has shortened the distance from Dallas to Houston by approximately forty miles. That by reason of the shorter distance, traffie is rapidly deserting other routes from Oklahoma, New Mexico, Arkansas and North Texas to Houston, and gravitating to this highway. That such conditions will continue to grow, and that the flow of traffic over this highway will, in the natural course of events, grow heavier. That State Highway No. 35 is also subject to heavy traffic at all times, and of course, during the season of the movement of cotton, such traffic would be greatly increased. This highway now carries a great amount of traffic between Houston and the East Texas oil fields, and to place upon such highway the additional traffic sought by the applicant would add greatly to the hazards of the traveling public at the time of the year when residents along such highway are moving their crops to market and are using such highway more than at any other time. The Commission believes that the addition of a considerable fleet of trucks would interfere to"
},
{
"docid": "22370087",
"title": "",
"text": "driver to have a license pursuant to an examination as to his ability and fitness. By the same section the commission is given broad powers of supervision and regulation in respect of matters affecting the relationship of the motor carriers and the shipping public, as may be necessary in the interest of the public; and also to supervise and regulate such carriers generally “ so as to carefully preserve, foster and regulate transportation and to relieve the existing and all future undue burdens on the highways arising by reason of the use of the highways by motor carriers, adjusting and administering its regulations in the interests of the public.” The railroad commission and the highway commission are directed to cooperate in respect of the condition of the public highways and their ability to carry existing and proposed additional traffic. Section 5 contains various provisions relating to common carriers over the highways, and among other things requires them to have certificates of public convenience and necessity. Section 6 (a) provides that no motor carrier now operating as a contract carrier, or hereafter desiring to engage in so doing, shall operate until it shall have received a permit from the railroad commission which shall not be issued until the applicant has complied with the requirements of the act. Section 6 (c) directs that such permits shall be granted only after a hearing, and not if the commission be of opinion “ that the proposed operation of any such contract carrier will impair the efficient public service of any authorized common carrier or common carriers then adequately serving the same territory.” Section 6 (d) authorizes the railroad commission to issue special permits to persons desiring to transport for hire over the state highways livestock, mohair, wool, milk, and certain other commodities, upon such terms and under such regulations as may be deemed proper, having in mind the protection of the highways and the safety of the traveling public. Section 6aa gives the commission authority to prescribe rules and regulations governing the operation of contract carriers in competition with com mon carriers over the"
},
{
"docid": "13758618",
"title": "",
"text": "dispose of the traffic as to allow some additional vehicles over Federal Highway No. 75 and State Highway No. 35 as would not unnecessarily endanger the traveling public, yet the evidence in this hearing submitted by the applicants themselves clearly shows that the movement would often be in great volume on short notice. That J. Kahn & Company buys quantities of cotton in large lots and immediately ships same to Houston by truck, this clearly indicating that at times possibly every vehicle that would be authorized to operate under the proposed permit might traverse the highways into Houston on the same day. That such a condition, especially during the peak of the movement of merchandise and commodities into and out of Houston would result in the unreasonable restriction of traffic along such highway as would not only result in grave danger to the general public, but would also result in undue burdens being placed upon such highway. The fact that on some days the traffic might be lighter than on other days, or during certain months of the spring and summer traffic along such highway might not be of sufficient volume as to constitute congestion, would not relieve this Commission of the duty placed upon it by the Legislature to restrict such traffic to the public safety for the entire year. After considering the evidence, the law, and its own rules and regulations, the Commission is of the opinion, and it is therefore “Ordered that the application of the Texport Carrier Corporation for a permit authorizing the operation of a contract carrier motor carrier service be, and the same is hereby in all things denied. “Railroad Commission of Texas «[Signed] “Lon A. Smith, Chairman “C. V. Terrell, Commissioner.” Article 911b, § 22b: “Declaration of Policy. The business of operating as a motor carrier of property for hire along the highways of this State is declared to be a business affected with the public interest. The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and"
},
{
"docid": "12780472",
"title": "",
"text": "was no application for a rehearing before the Court of Civil Appeals, and that judgment then became final. . • The answer denied that the complainant had complied with the police requirements of the state of Texas, and that the complainant had endeavored to comply with or was complying with the laws of T exas. Respondents further averred affirmatively that the highways over which complainants sought to operate are not in such condition as to justify the issuance of any permit to him, and that said highways are now so congested that his operation would unreasonably interfere with the uses thereof by the traveling public. Respondents denied that their action or threatened action was unreasonable, arbitrary, or without sanction of law. They ■alleged that, notwithstanding the Motor Carrier Law of Congress, the Railroad Commission of Texas retained jurisdiction to determine whether or not the highways of the state were of such construction or the traffic thereon in such congested ■condition as that complainant’s operation would unreasonably interfere with the use •of the highways by the traveling public; that this jurisdiction was not taken away ~by the act of Congress. Respondents further averred in their •answer that should complainant present to the Commission an'application to transport property for hire in interstate commerce •over the highways of Texas, the said Commission would hear said application; that in hearing the application the Commission would require the applicant to show by facts that the highways proposed to be used by him were capable of withstanding the proposed use without undue injury and damage to them, and without unreasonable interference with their use by the general public for ordinary purposes. The respondents specifically averred that the Commission would not require the applicant to prove that public convenience and necessity require the proposed service, nor would it consider the adequacy of the existing transportation facilities or the effect the proposed operation would have on the existing transportation facilities in determining whether or not it would authorize said applicant to operate over said highways. The cause was heard upon the bill and answer, oral and documentary evidence."
},
{
"docid": "12780473",
"title": "",
"text": "traveling public; that this jurisdiction was not taken away ~by the act of Congress. Respondents further averred in their •answer that should complainant present to the Commission an'application to transport property for hire in interstate commerce •over the highways of Texas, the said Commission would hear said application; that in hearing the application the Commission would require the applicant to show by facts that the highways proposed to be used by him were capable of withstanding the proposed use without undue injury and damage to them, and without unreasonable interference with their use by the general public for ordinary purposes. The respondents specifically averred that the Commission would not require the applicant to prove that public convenience and necessity require the proposed service, nor would it consider the adequacy of the existing transportation facilities or the effect the proposed operation would have on the existing transportation facilities in determining whether or not it would authorize said applicant to operate over said highways. The cause was heard upon the bill and answer, oral and documentary evidence. The lower court was of the opinion that the Motor Carrier Act of 1935 of Congress, 49 U.S.C.A. § 301 et seq., superseded the Texas Motor Truck laws, Vernon’s Ann. Civ.St. art. 911b, in so far as the Texas act gave to the Railroad Commission power to forbid the use of the highways by complainant’s trucks when engaged exclusively in interstate commerce. The bill of complainant in the present case, stripped of the conclusions of the pleader, alleges in short that he is entitled to the certificate of public convenience and necessity from the Interstate Commerce Commission, and is therefore entitled to operate over the highways of the state of Texas as a matter of right, and that the Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq., supersedes all laws of the state of Texas in so far as the control of the state highways over which interstate commerce may be carried is concerned. It is the contention of the appellee that the federal law is superior and exclusive in so far"
},
{
"docid": "13758613",
"title": "",
"text": "without proving an undue burden upon the same, and would not unreasonably interfere with the proper use of such highways by the general traveling public in the ordinary pursuits of life. This appears to be true of portions of North, Northeast and Northwest Texas, and, if the applicants had confined themselves to such highways, the Commission would have unhesitatingly granted authority to operate a contract carrier motor carrier service in such portions of the State where such conditions were found to exist. The whole operation, however, depending as it does upon entering the port city of Houston, where all of the cotton to be transported was to be shipped to other states or to foreign countries, and where all of the back loads were to be transported from, made it incumbent up-on the Commission to either authorize such operation in and out of Houston, or else a permit would be of no benefit to the applicant. “On numerous occasions this Commis sion has been called upon to examine into the conditions existing along the principal highways of this State, with especial reference to the character and condition of such highways, the use made of the same by the general traveling public, as well as by carriers engaged in the transportation of property for hire, and the traffic conditions obtaining along such highways in the towns and cities traversed thereby. In determining the question of traffic over the cardinal highways of the State, the Commission has not been unmindful of its mandatory duty to inquire, not only into present conditions, but also to guard against future undue burdens upon the State’s highways in order that the general public might pursue its ordinary duties without unnecessary danger to life and property, or without unreasonable interference. “The Commission finds that approximately 1,000,000 people reside in the counties traversed by Federal Highway No. 75 between Dallas and Houston, and that a very large proportion of all vehicles registered for the last year, are owned and operated by the people of such counties. That the comparatively recent completion of this highway has shortened the distance"
},
{
"docid": "4631691",
"title": "",
"text": "engaged in the business of a private contract carrier. Pending the action of the commission he has been permitted to operate under license as a Class B motor carrier. He is not, and will not be, engaged as a common carrier. The sole business which he proposes to do, and for which he asks a permit, is the handling, under private contract, wholly within the state of Texas, of goods moving in interstate commerce. Along with many others, these two filed their applications for permits to operate as contract carriers. After these applications were filed and before they were acted upon, they were amended so as to ask for a permit to engage only as a private carrier in the transportation of commodities in interstate commerce between the cities of Houston and Galveston and other cities of Texas. In purported compliance with the statutory requirement that it set out the highways which it was proposed to operate over, the commodities which it was proposed to carry, and the cities and towns it was proposed to serve, the applications took the widest range. Beard’s application, for instance, had attached to it the highway map of Texas, and in his application and by reference he proposed to operate between practically every city and town in the state and over practically every highway, and to carry practically every commodity which moves or might move in interstate commerce. Wald’s application is not in the record, but from the briefs it appears that it was of substantially the same generality. After the amendment these applications were treated as substantially applications to transport commodities under contracts with the Universal Carloading & Distributing Company, a forwarding agency, over principally Highway 75, Houston to Dallas, Highways 3 and 3(a), from Houston to San Antonio, Highway 6, from Houston to Waco, and Highways 6 and 2 from Dallas to San .Antonio, via Waco and Austin, and while the proof as to the condition of the highways to withstand traffic, their condition as to congestion and present and future burdens, covered practically all of the highways of Texas, the burden"
},
{
"docid": "4631692",
"title": "",
"text": "serve, the applications took the widest range. Beard’s application, for instance, had attached to it the highway map of Texas, and in his application and by reference he proposed to operate between practically every city and town in the state and over practically every highway, and to carry practically every commodity which moves or might move in interstate commerce. Wald’s application is not in the record, but from the briefs it appears that it was of substantially the same generality. After the amendment these applications were treated as substantially applications to transport commodities under contracts with the Universal Carloading & Distributing Company, a forwarding agency, over principally Highway 75, Houston to Dallas, Highways 3 and 3(a), from Houston to San Antonio, Highway 6, from Houston to Waco, and Highways 6 and 2 from Dallas to San .Antonio, via Waco and Austin, and while the proof as to the condition of the highways to withstand traffic, their condition as to congestion and present and future burdens, covered practically all of the highways of Texas, the burden of contention settled on the conditions on the Highways last named. These applications were combined with other applications including that of the Galveston Truck Line Company and the hearing took wide range, covering not only the question of the condition of the highways as to their ability to bear traffic burdens, and as to congestion and conditions of safe travel thereon, but as to the adequacy of existing transportation facilities, and the effect of the proposed operations upon.them. The application of the Galveston Truck Line was first acted on. This was refused on the ground that to grant it would impair existing transportation facilities. This court, in Galveston Truck Line Corporation v. C. J. Allen, 2 F. Supp. 488, holding that the commission' had no authority to refuse permits to engage in interstate commerce on considerations of that kind, granted an injunction against the commission restraining them from interfering with the operation of that line. Shortly thereafter, on January 25, when these applications were decided, the commission, in deference to the opinion of this court"
},
{
"docid": "13758617",
"title": "",
"text": "be moved is during the time when the children in the towns and cities along these routes will be in attendance upon the public schools, and will add considerably to the dangers of such children. That along this route the fall months are the busiest season of the year when every line of endeavor uses the highways to the maximum, and hundreds of thousands of bales of cotton and tons of merchandise are moved, into and out of Houston. That, owing to the expense involved, it would prove too heavy a burden upon the municipalities along this route to employ additional traffic officers as would protect the public against the extra risks that would inevitably result from fleets of freight trucks operating over their principal thoroughfhres during the fall season when the cotton crop is being gathered and transported to gins and market; and when, as stated, such highways are used the most. “The Commission is of the opinion, and so holds that, while it might be possible under some circumstances to so arrange and dispose of the traffic as to allow some additional vehicles over Federal Highway No. 75 and State Highway No. 35 as would not unnecessarily endanger the traveling public, yet the evidence in this hearing submitted by the applicants themselves clearly shows that the movement would often be in great volume on short notice. That J. Kahn & Company buys quantities of cotton in large lots and immediately ships same to Houston by truck, this clearly indicating that at times possibly every vehicle that would be authorized to operate under the proposed permit might traverse the highways into Houston on the same day. That such a condition, especially during the peak of the movement of merchandise and commodities into and out of Houston would result in the unreasonable restriction of traffic along such highway as would not only result in grave danger to the general public, but would also result in undue burdens being placed upon such highway. The fact that on some days the traffic might be lighter than on other days, or during certain"
}
]
|
223359 | Florida Board of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). The Eleventh Amendment’s guarantee, however, may be abrogated by Congress. To abrogate states’ Eleventh Amendment immunity, Congress must unequivocally intend to do so, and it must “ ‘act pursuant to a valid grant of constitutional authority.’ ” Garrett, 531 U.S. at 363, 121 S.Ct. 955 (quoting Kimel, 528 U.S. at 73, 120 S.Ct. 631.). The Supreme Court has held that Congress may properly abrogate states’ Eleventh, Amendment immunity, and thus subject the states to suit in federal court, when it does so pursuant to a valid exercise of its power under Section 5 of the Fourteenth Amendment. Garrett, 531 U.S. at 364, 121 S.Ct. 955 (citing REDACTED Pursuant to Section 5 of the Fourteenth Amendment, Congress may enact “appropriate legislation” to enforce the guarantees contained in Section 1 of the Fourteenth Amendment. The guarantees of Section 1 of the Fourteenth Amendment are as follows: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ' ' U.S. Const. amend XIV, § 1. Congress’s power to enforce this section of the Fourteenth Amendment may only be exercised in response to actual “state | [
{
"docid": "22678518",
"title": "",
"text": "here, however, the Eleventh Amendment defense is asserted in the context of legislation passed pursuant to Congress’ authority under § 5 of the Fourteenth Amendment. As ratified by the States after the Civil War, that Amendment quite clearly contemplates limitations on their authority. In relevant part, it provides: “Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. “Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” The substantive provisions are by express terms directed at the States. Impressed upon them by those provisions are duties with respect to their treatment of private individuals. Standing behind the imperatives is Congress’ power to “enforce” them “by appropriate legislation.” The impact of the Fourteenth Amendment upon the relationship between the Federal Government and the States, and the reach of congressional power under § 5, were examined at length by this Court in Ex 'parte Virginia, 100 U. S. 339 (1880). A state judge had been arrested and indicted under a federal criminal statute prohibiting the exclusion on the basis of race of any citizen from, service as a juror in a state court. The judge claimed that the statute was beyond Congress’ power to enact under either the Thirteenth or the Fourteenth Amendment. The Court first observed that these Amendments “were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress.” Id., at 345. It then addressed the relationship between the language of § 5 and the substantive provisions of the Fourteenth Amendment: “The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be"
}
]
| [
{
"docid": "20278715",
"title": "",
"text": "v. Pennsylvania, 224 F.3d 190, 195 (3d Cir.2000). “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘aet[s] pursuant to a valid grant of constitutional authority.’ ” Garrett, 531 U.S. at 363, 121 S.Ct. 955 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). There is no question that Congress expressed its unequivocal intent to abrogate state sovereign immunity when it enacted Title II of the ADA. See 42 U.S.C. § 12202 (providing that “[a] State shall not be immune under the [Eleventh [A]mendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter”). Therefore, the only question before this Court is whether Congress’ purported abrogation of the states’ sovereign immunity is a valid exercise of its enforcement power pursuant to § 5 of the Fourteenth Amendment. The United States Supreme Court has adopted a three-step analysis for making such a determination, as articulated in City of Boerne v. Flores, 521 U.S. 507, 529, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Under the Boeme test, a court must (1) identify “with some precision the scope of the constitutional right at issue;” (2) examine whether Congress identified a history and pattern of unconstitutional discrimination by the states; and (3) determine whether the rights and remedies created by the ADA against the states are congruent and proportional to constitutional injury sought to be prevented. Garrett, 531 U.S. at 365, 368, 372-73, 121 S.Ct. 955. Applying that test to Title I of the ADA, the Court in Garrett found that “[t]he legislative record of the ADA ... fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.” Id. Instead, Congressional findings focused on employment discrimination in the private sector, and “Congress assembled only such minimal evidence of unconstitutional state discrimination in employment against the disabled.” Id. at 369-70, 121 S.Ct. 955. Accordingly, at the second step of the Boeme test, the Court"
},
{
"docid": "8893599",
"title": "",
"text": "Section 12202 of the ADA provides: A state shall not be immune under the Eleventh Amendment to the Constitution of the United States from an action in a Federal or State court of competent jurisdiction for a violation of this chapter. 42 U.S.C. § 12202. Congress satisfied the first requirement by expressly stating an intent to abrogate the States’ Eleventh Amendment immunity. Garrett, at 974; Lavia v. Pennsylvania Department of Corrections, 224 F.3d 190, 196 (3rd Cir. 2000). Therefore, this Court must determine whether Congress acted within its constitutional authority by subjecting the States to suits in federal court for money damages under the ADA. Congress may not base its abrogation of the States’ Eleventh Amendment immunity upon the commerce powers enumerated in Article I. See, Kimel, 528 U.S. at 79, 120 S.Ct. 631. It may base its abrogation on the enforcement provisions in Section 5 of the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Section 1 of the Fourteenth Amendment provides: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5 of the Fourteenth Amendment grants Congress the power to enforce the substantive guarantees contained in Section 1 by enacting appropriate legislation. Garrett, at 974. “... Congress’ power ‘to enforce’ the Amendment includes the authority both to remedy and to deter violations of rights thereunder by prohibiting a somewhat broader swath of conduct including that which is not itself forbidden by the Amendment’s text.” Garrett, at 974 (quoting Kimel, 528 U.S. at 81, 120 S.Ct. 631). However, Congress’ enforcement powers under Section 5 are not unlimited. City of Boerne, 521 U.S. at 518-19, 117 S.Ct. 2157. For a legislative enactment to be a valid exercise of this power, Congress must “identify conduct that transgresses the Fourteenth Amendment’s substantive provisions and must tailor its legislative scheme to"
},
{
"docid": "15737123",
"title": "",
"text": "“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend. XI. A state’s immuni ty, however, is not absolute; “Congress may abrogate the State’s Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Garrett, 531 U.S. at 363, 121 S.Ct. 955 (internal quotation marks and citations omitted). The Supreme Court has recognized that “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment.” Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) (internal citations omitted). Congress, therefore, “may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power.” Garrett, 531 U.S. at 364, 121 S.Ct. 955. We must ascertain, therefore, what constitutes a valid exercise of § 5 power to determine if Congress’ extension of Title VII to the States falls within that grant of authority. The Fourteenth Amendment states, in relevant part: Section 1. ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law. Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. U.S. Const, amend. XIV. Section 5 of the Fourteenth Amendment gives to Congress the right to “enforce the substantive guarantees contained in § 1 by enacting ‘appropriate legislation.’” Garnett, 531 U.S. at 365, 121 S.Ct. 955. This Congressional determination of necessity and propriety is “entitled to much deference.” City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624"
},
{
"docid": "6627684",
"title": "",
"text": "Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. at 363, 121 S.Ct. 955. “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Id.; See Kimel, 528 U.S. at 73, 120 S.Ct. 631. “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Kimel, 528 U.S. at 73, 120 S.Ct. 631. In Garrett the Supreme Court was explicit that there was no dispute that Congress intended to abrogate the States’ Eleventh Amendment immunity in the ADA. Garrett, 531 U.S. at 364, 121 S.Ct. 955; 42 U.S.C. § 12202. As is well recognized, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power: Garrett, 531 U.S. at 364-365, 121 S.Ct. 955. Also, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation. Moreover, the Supreme Court noted that Congress intended to invoke § 5 as one of its bases for enacting the ADA. Garrett, 531 U.S. at 364 n. 3, 121 S.Ct. 955; 42 U.S.C. § 12101(b)(4). Because there is no question of Congress’ intent to abrogate the States’ Eleventh Amendment immunity, the Court must examine whether Congress validly did so. At the onset the Court is required to examine the limitations that § 1 of the Fourteenth Amendment places upon States’ treatment of the disabled. Garrett, 531 U.S. at 365, 121 S.Ct. 955. It is the responsibility of the United States Supreme Court to define the substance of constitutional guarantees; it is not the responsibility of Congress. Garrett, 531 U.S. at 365, 121 S.Ct. 955. Keeping that in mind, the Court must apply the “congruence and proportionality” test between the injury to be prevented or remedied and the means adopted to that end. See City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). As determined by the Supreme Court in prior"
},
{
"docid": "8004002",
"title": "",
"text": "by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. “Although by its terms the Amendment applies only to suits against a State by citizens of another State, [the Supreme Court’s] cases have extended the Amendment’s applicability to suits by citizens against their own States.” Bd. of Trs. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (citations omitted). However, “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.’ ” Id. (citations omitted). As the Supreme Court observed in Garrett, Congress clearly intended to abrogate states’ Eleventh Amendment immunity from the ADA. Id. (citing 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter.”)). The Court then went on to consider whether Congress acted within its Constitutional authority, determining that Congress máy only subject non-consenting states to liability under the ADA if it does so pursuant to a valid exercise of its power under clause five of the Fourteenth Amendment. Id. at 364, 121 S.Ct. 955. Section 1 of the Fourteenth Amendment provides in relevant part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const, amend. 'XIV, § 1. Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const, amend. XIV, § 5. The focus of the inquiry is whether the legislation propounded by Congress to enforce the Fourteenth Amendment is “appropriate.” In Garrett, the Supreme Court determined that Congress did not validly abrogate states’ Eleventh Amendment immunity from suit for money damages under Title I of the"
},
{
"docid": "11691300",
"title": "",
"text": "the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment provides a type of sovereign immunity, and deprives the federal courts of jurisdiction to entertain a suit brought by an individual against a nonconsenting State. See Hibbs, 538 U.S. at 726, 123 S.Ct. 1972; Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Congress may, however, abrogate such immunity if it (1) makes its intention to abrogate unmistakably clear in the language of the statute, and (2) acts pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment. See Hibbs, 538 U.S. at 726, 123 S.Ct. 1972. Section 5 of the Fourteenth Amendment grants Congress the power “to enforce” the substantive guarantees of § 1 of the Amendment, among them equal protection of the laws, by enacting “appropriate legislation.” “Congress may, in the exercise of its § 5 power, do more than simply proscribe conduct that [the Supreme Court has] held unconstitutional.” Hibbs, 538 U.S. at 728, 123 S.Ct. 1972; see also Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (“ ‘Congress’ power “to enforce” the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.’ ”) (quoting Ki-mel v. Fla. Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). “In other words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” Hibbs, 538 U.S. at 727-28, 123 S.Ct. 1972. It remains the province of the courts, however, to determine the Fourteenth Amendment’s substantive meaning and define the substance of constitutional guarantees. Id. at 728, 123 S.Ct. 1972. Furthermore, § 5 legislation that reaches beyond the scope of § l’s specific guarantees must be an appropriate remedy for identified constitutional violations, not “an attempt to"
},
{
"docid": "22851739",
"title": "",
"text": "it confirms. Seminole Tribe, 517 U.S. at 72, 116 S.Ct. 1114. “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Garrett, 121 S.Ct. at 962. [11] This guarantee is not absolute. Congress may abrogate the “immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.’ ” Id. at 962 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). With respect to Title II of the ADA, it is clear that the Congress fully intended to abrogate state sovereign immunity. See 42 U.S.C. § 12202 (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter.”). What is unresolved, however, is whether Title II was enacted pursuant to a grant of constitutional authority that empowers Congress to abrogate state sovereign immunity. In enacting Title II, Congress purported to rely on its authority under both the Commerce Clause of Article I and § 5 of the Fourteenth Amendment. See 42 U.S.C. § 12101(b)(4) (invoking the “sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities”). To the extent that Title II rests on Congress’s authority under the Commerce Clause, it cannot validly abrogate state sovereign immunity. This is because “Congress may not ... base its abrogation of the States’ Eleventh Amendment immunity upon the powers enumerated in Article I.” Garrett, 121 S.Ct. at 962; see also Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”). “Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States’ sovereign immunity.” Kimel, 528 U.S. at 80, 120 S.Ct. 631. Thus,"
},
{
"docid": "13988187",
"title": "",
"text": "excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. ” 42 U.S.C. § 12132 (emphasis added). The Eleventh Amendment grants States immunity to suits brought by private citizens in federal court. U.S. Const, amend. XI. Congress can abrogate that immunity where (1) Congress “unequivocally expressed its intent to abrogate” the States’ sovereign immunity in the statute at issue and (2) “Congress acted pursuant to a valid grant of constitutional authority.” Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000). Congress satisfied the first requirement by writing the following language into Section 12202 of the ADA: “[a] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court ... for a violation of the ADA. 42 U.S.C. § 12202. This appeal, therefore, involves the second requirement, i.e. whether the statutory provision removing Eleventh Amendment immunity for private suits under Title II of the ADA is a valid exercise of Congress’s authority under Section 5 of the Fourteenth Amendment. “When Congress seeks to remedy or prevent unconstitutional discrimination, § 5 [of the Fourteenth Amendment] authorizes it to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause.” Lane, 124 S.Ct. at 1986. In City of Boerne v. Flores, 521 U.S. 507, 519-20, 117 S.Ct. 2157, 2164, 138 L.Ed.2d 624 (1997), the Supreme Court held that Section 5 legislation is valid if it exhibits “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” (Emphasis added). In order to establish whether Congress’s enactment of Title II of the ADA satisfies the Boeme “congruence and proportionality” requirements in the context of a public education institution, we follow a three-step analysis. See Board of Trustees v. Garrett, 531 U.S. 356, 365-70, 121 S.Ct. 955, 963-66, 148 L.Ed.2d 866 (2001); Boerne,"
},
{
"docid": "13347818",
"title": "",
"text": "are not immune from suit under Title IX). Thus, we must resolve the Eleventh Amendment issues raised in this appeal. See Floyd, 227 F.3d at 1035. A. The EPA Claim The Board argues that the Eleventh Amendment bars Cherry’s EPA claim. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. Const, amend. XI. According to the Amendment, non-consenting States may not be sued by private individuals in federal court. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). But this “immunity from suit is not absolute.” College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999). The Supreme Court has recognized “that Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.’ ” Garrett, 121 S.Ct. at 962 (quoting Kimel, 528 U.S. at 73, 120 S.Ct. 631). The Court has held that the Eleventh Amendment is limited by the enforcement provisions of § 5 of the Fourteenth Amendment, and that Congress may subject non-consenting States to suit in federal court pursuant to a valid exercise of its § 5 power. Garrett, 121 S.Ct. at 962. Accordingly, the EPA can apply to the States only to the extent that the statute is appropriate § 5 legislation. Id. The Fourteenth Amendment provides, in relevant part: Section 1.... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this"
},
{
"docid": "227171",
"title": "",
"text": "addressed in turn. 1. Abrogation of Sovereign Immunity under Title II of the ADA In determining whether Congress has validly abrogated a state’s sovereign immunity, courts generally look to the well-established two-prong test set forth in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996):(1) whether Congress intended to abrogate the state’s sovereign immunity; and (2) whether Congress has acted pursuant to a valid exercise of its power. Id. a. Intent to Abrogate Congress clearly expressed its intent to abrogate States’ sovereign immunity in passing Title II of the ADA. See 42 U.S.C. § 12101. Notwithstanding the Eleventh Amendment guarantees of immunity, the Fourteenth Amendment guarantees equal protection to citizens of the United States. See U.S. Const, amend XIV. Specifically, Section 1 of the Fourteenth Amendment provides, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Id. Section 5 of the Fourteenth Amendment empowers Con gress “to enforce the substantive guarantees contained in § 1 by enacting ‘appropriate legislation.’ ” Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 365, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001)(quoting City of Boeme v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997)). Pursuant to Section 5, Congress enacted the ADA, which requires that a qualified individual with a disability not be subjected to discrimination or otherwise be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, on the basis of such disability. See 42 U.S.C. § 12132. In addition, with respect to the ADA, Congress set forth that: A State shall not be immune under the [Eleventh [Ajmendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter .... Id."
},
{
"docid": "21868536",
"title": "",
"text": "entity. 42 U.S.C. § 12132. C. Application of the Eleventh Amendment to Title II in the Context of a State’s Alleged Denial of Access to Post-Secondary Education. The Eleventh Amendment provides immunity against “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. 11. Although a state may consent to be sued in federal court with respect to a particular cause of action, a nonconsenting state is immune from suits brought by private individuals for money damages in federal court. Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). However, the immunity of a nonconsenting state is not absolute, as a state’s Eleventh Amendment immunity may be abrogated by Congress through legislation pursuant to its power under Section 5 of the Fourteenth Amendment (“Section 5”). Under Section 5, Congress has the power to “enforce the substantive guarantees of the Fourteenth Amendment.” Lane, 541 U.S. at 518, 124 S.Ct. 1978 (citations omitted). Congress’s Section 5 power “includes ‘the authority both to remedy and to deter violation of the rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct including that which is not itself forbidden by the Amendment’s text.’” Id. quoting Kimel v. Florida Bd. Of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000); see also Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, et al., 280 F.3d 98, 108 (2d Cir.2001). With respect to the ADA, Congress stated: [а] State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter. § 12202. To determine whether Congress’s abrogation of a state’s immunity is a valid exercise of power under section 5 of the Fourteenth Amendment (“Section 5”), a two prong test is applied: (1) Did Congress unequivocally state its desire to abrogate; and (2) was the abrogation"
},
{
"docid": "20278714",
"title": "",
"text": "of the acts. The Court will address each of these contentions seriatim. 1. Whether the Eleventh Amendment bars Plaintiffs claims under the ADA a. General Principles of Law Defendants argue that Plaintiffs claims under Title II of the ADA against the Commonwealth and PSP are barred by the Eleventh Amendment of the United States Constitution. The Eleventh Amendment provides that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Amend. XI. The Eleventh Amendment has been interpreted as a bar to suits “by citizens against their own states” as well. Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (“Garrett ”). The prohibition against suits may be lifted if (1) a state waives its immunity or (2) such immunity is abrogated by an act of Congress. Lavia v. Pennsylvania, 224 F.3d 190, 195 (3d Cir.2000). “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and ‘aet[s] pursuant to a valid grant of constitutional authority.’ ” Garrett, 531 U.S. at 363, 121 S.Ct. 955 (quoting Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000)). There is no question that Congress expressed its unequivocal intent to abrogate state sovereign immunity when it enacted Title II of the ADA. See 42 U.S.C. § 12202 (providing that “[a] State shall not be immune under the [Eleventh [A]mendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter”). Therefore, the only question before this Court is whether Congress’ purported abrogation of the states’ sovereign immunity is a valid exercise of its enforcement power pursuant to § 5 of the Fourteenth Amendment. The United States Supreme Court has adopted a three-step analysis for making such a determination, as articulated"
},
{
"docid": "22264025",
"title": "",
"text": "his FMLA claim on the basis of Eleventh Amendment immunity. Specifically, he argues that the district court erred in concluding that Congress unconstitutionally abrogated the states’ Eleventh Amendment immunity with respect to the FMLA’s self-care provision. We disagree. The Eleventh Amendment bars suit in federal court against an unconsenting state and any governmental units that are arms of the state unless Congress has abrogated the immunity. See Alden v. Maine, 527 U.S. 706, 755-57, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). In order to do so, Congress must unequivocally declare its intent to abrogate and must act pursuant to a valid exercise of its power. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). The first prong of this test is clearly satisfied here. See Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (explaining that “[t]he clarity of Congress’ intent” to abrogate the states’ immunity to FMLA suits “is not fairly debatable”). It is the second requirement that is at issue. The Supreme Court has held that while Congress cannot validly abrogate a state’s immunity from private suit under its Article I powers, it can do so under its Fourteenth Amendment, § 5 authority. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 364, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). The Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Section 5 authorizes Congress to enact “appropriate legislation” to enforce these substantive guarantees. Id. § 5. This section authorizes Congress not only to codify the Supreme Court’s holdings regarding the rights established by the Fourteenth Amendment, but also to prevent future violations of those rights. See City of Boerne v. Flores, 521 U.S."
},
{
"docid": "22575052",
"title": "",
"text": "not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. § 12202. This provision clearly and unambiguously expresses congressional intent to abrogate the States’ Eleventh Amendment immunity with respect to claims brought under the ADA. See Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 1985, 158 L.Ed.2d 820 (2004); Board of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363-64, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). “The question, then, is whether Congress had the power to give effect to its intent.” Lane, 124 S.Ct. at 1985. B. The ADA purports to “invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.” 42 U.S.C. § 12101(b)(4). Although the commerce power conferred by Article I of the Constitution does not authorize Congress to abrogate the States’ Eleventh Amendment immunity, Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114, the Supreme Court has held that “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment,” Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Thus, Title II of the ADA abrogates the States’ Eleventh Amendment immunity only if its enactment represents a valid exercise of authority under § 5 of the Fourteenth Amendment. Id. The Fourteenth Amendment provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Section 5 of the Fourteenth Amendment authorizes Congress to enact “appropriate legislation” to enforce these substantive guarantees. Congress is empowered by § 5 not only"
},
{
"docid": "22851740",
"title": "",
"text": "enacting Title II, Congress purported to rely on its authority under both the Commerce Clause of Article I and § 5 of the Fourteenth Amendment. See 42 U.S.C. § 12101(b)(4) (invoking the “sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities”). To the extent that Title II rests on Congress’s authority under the Commerce Clause, it cannot validly abrogate state sovereign immunity. This is because “Congress may not ... base its abrogation of the States’ Eleventh Amendment immunity upon the powers enumerated in Article I.” Garrett, 121 S.Ct. at 962; see also Seminole Tribe, 517 U.S. at 72-73, 116 S.Ct. 1114 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.”). “Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States’ sovereign immunity.” Kimel, 528 U.S. at 80, 120 S.Ct. 631. Thus, if Title II is a valid exercise of Congress’s § 5 power, then nonconsenting states may be hailed into federal court by private individuals seeking money damages. See Garnett, 121 S.Ct. at 962. We turn our attention to this critical issue. 2. Title II and § 5 of the 14th Amendment Section 5 of the Fourteenth Amendment authorizes Congress to “ ‘enforce,’ by ‘appropriate legislation’ the constitutional guarantee that no State shall deprive any person of ‘life, liberty or property, without due process of law,’ nor deny any person ‘equal protection of the laws.’ ” City of Boerne v. Flores, 521 U.S. 507, 517, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). When operating under § 5, Congress may prohibit conduct that itself violates the Fourteenth Amendment’s substantive guarantees. Congress may also remedy or deter violations of these guarantees by “prohibiting a somewhat broader swath of conduct” than is otherwise unconstitutional, Garrett, 121 S.Ct. at 963 (internal quotation marks and citations omitted), subject to the requirement that there be “congruence and proportionality between the [violation] to"
},
{
"docid": "13347819",
"title": "",
"text": "intends to do so and ‘act[s] pursuant to a valid grant of constitutional authority.’ ” Garrett, 121 S.Ct. at 962 (quoting Kimel, 528 U.S. at 73, 120 S.Ct. 631). The Court has held that the Eleventh Amendment is limited by the enforcement provisions of § 5 of the Fourteenth Amendment, and that Congress may subject non-consenting States to suit in federal court pursuant to a valid exercise of its § 5 power. Garrett, 121 S.Ct. at 962. Accordingly, the EPA can apply to the States only to the extent that the statute is appropriate § 5 legislation. Id. The Fourteenth Amendment provides, in relevant part: Section 1.... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. U.S. Const, amend. XIV; Kimel, 528 U.S. at 80, 120 S.Ct. 631. Section 5 grants Congress the power to “enforce the substantive guarantees contained in § 1 by enacting ‘appropriate legislation.’” Garrett, 121 S.Ct. at 963. Hence, Congress determines what legislation is necessary to secure the guarantees of the Fourteenth Amendment, and “its conclusions are entitled to much deference.” City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Pursuant to § 5, Congress has the authority to remedy and deter violations of rights guaranteed under the Fourteenth Amendment “ ‘by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.’ ” Garrett, 121 S.Ct. at 963 (quoting Kimel, 528 U.S. at 81, 120 S.Ct. 631). Nevertheless, the Supreme Court has also recognized that § 5 grants Congress the power to enforce the Fourteenth Amendment, not the power “ ‘to determine what constitutes a constitutional violation.’ ” Kimel, 528 U.S. at 81, 120 S.Ct. 631(quoting City of Boerne, 521 U.S."
},
{
"docid": "22361232",
"title": "",
"text": "encounter access barriers to public facilities and services. That record, the Court rightly holds, at least as it bears on access to courts, sufficed to warrant the barrier-lowering, dignity-respecting national solution the People’s representatives in Congress elected to order. Chief Justice Rehnquist, with whom Justice Kennedy and Justice Thomas join, dissenting. In Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356 (2001), we held that Congress did not validly abrogate States’ Eleventh Amendment immunity when it enacted Title I of the Americans with Disabilities Act of 1990 (ADA or Act), 42 U. S. C. §§ 12111-12117. Today, the Court concludes that Title II of that Act, §§ 12131-12165, does validly abrogate that immunity, at least insofar “as it applies to the class of cases implicating the fundamental right of access to the courts.” Ante, at 533-534. Because today’s decision is irreconcilable with Garrett and the well-established principles it embodies, I dissent. The Eleventh Amendment bars private lawsuits in federal court against an unconsenting State. E. g., Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 726 (2003); Garrett, supra, at 363; Kimel v. Florida Bd. of Regents, 528 U. S. 62, 73 (2000). Congress may overcome States’ sovereign immunity and authorize such suits only if it unmistakably expresses its intent to do so, and only if it “acts pursuant to a valid exercise of its power under §5 of the Fourteenth Amendment.” Hibbs, supra, at 726. While the Court correctly holds that Congress satisfied the first prerequisite, ante, at 518, I disagree with its conclusion that Title II is valid § 5 enforcement legislation. Section 5 of the Fourteenth Amendment grants Congress the authority “to enforce, by appropriate legislation,” the familiar substantive guarantees contained in §1 of that Amendment. U. S. Const., Arndt. 14, § 1 (“No State shall... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”). Congress’ power to enact “‘appropriate’” enforcement legislation is not limited to “mere legislative repetition” of this Court’s Fourteenth"
},
{
"docid": "8004003",
"title": "",
"text": "subject non-consenting states to liability under the ADA if it does so pursuant to a valid exercise of its power under clause five of the Fourteenth Amendment. Id. at 364, 121 S.Ct. 955. Section 1 of the Fourteenth Amendment provides in relevant part: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const, amend. 'XIV, § 1. Section 5 of the Fourteenth Amendment provides that “[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const, amend. XIV, § 5. The focus of the inquiry is whether the legislation propounded by Congress to enforce the Fourteenth Amendment is “appropriate.” In Garrett, the Supreme Court determined that Congress did not validly abrogate states’ Eleventh Amendment immunity from suit for money damages under Title I of the ADA. Title I generally prohibits employers, including States, from discriminating in employment practices against qualified individuals with disabilities. 42 U.S.C. §§ 12111-17. The Supreme Court initially determined that Title I of the ADA is a statute enforcing the Equal Protection Clause of the Fourteenth Amendment. Garrett, 531 U.S. at 363,121 S.Ct. 955. The Court concluded that inasmuch as there is not a pattern of discrimination by the states which violates the Fourteenth Amendment, and because the remedy imposed under Title I of the ADA is not congruent or proportional to the targeted violation, Congress did not have the authority under Section 5 of the Fourteenth Amendment to abrogate states’ Eleventh Amendment immunity from suits for money damages under Title I of the ADA. However, the Court specifically declined to address whether Congress validly abrogated states’ Eleventh Amendment immunity from suits for money damages under Title II of the ADA. 531 U.S. 356, 360 n. 1, 121 S.Ct. 955, 148 L.Ed.2d 866. An en banc panel of this Court recently addressed the issue of Eleventh Amendment"
},
{
"docid": "8188911",
"title": "",
"text": "In his ADA claims, Guttman contends New Mexico revoked his medical license on the basis of his mental disability without complying with Title II’s prophylactic protections. Thus, we must proceed to the final Georgia step to determine whether the purported abrogation of sovereign immunity is valid. 3. Step Three: Sovereign Immunity Analysis Under the Fourteenth Amendment, a state may be subject to a statutory suit under Title II of the ADA, even if there is no allegation of an actual Fourteenth Amendment violation. See Lane, 541 U.S. at 523, 124 S.Ct. 1978. This is because, as the Supreme Court has explained, the scope of Congress’s power to enact remedial legislation under § 5 of the Fourteenth Amendment is broad. “Congress’ power ‘to enforce’ the [Fourteenth] Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct” than that which the Amendment itself proscribes. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). More importantly, “[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States.” City of Boerne, 521 U.S. at 518, 117 S.Ct. 2157 (quotation omitted). In line with these principles, the Supreme Court has held Congress may abrogate state sovereign immunity if Congress (1) unequivocally indicates its intent to abrogate state sovereign immunity, and (2) acts pursuant to a valid 'grant of constitutional authority under § 5. Garrett, 531 U.S. at 363, 121 S.Ct. 955. Here, there is no question Congress intended Title II to abrogate state sovereign immunity. The ADA specifically provides: “A state shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.” 42 U.S.C. § 12202. Thus, the remaining question is whether Congress’s intent to abrogate state sovereign immunity is a valid exercise"
},
{
"docid": "6627683",
"title": "",
"text": "the Eleventh Amendment from actions under Title II of the ADA. Garcia v. S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98 (2d Cir.2001) (holding that a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability); Hason v. Medical Bd. of California, 279 F.3d 1167 (9th Cir.2002). Because neither the First Circuit nor the United States Supreme Court have spoken to the issue, this Court turns to the analysis utilized by the United States Supreme Court to determine if Congress validly abrogated the States’ Eleventh Amendment immunity from actions brought under Title II of the ADA. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. at 363, 121 S.Ct. 955. “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Id.; See Kimel, 528 U.S. at 73, 120 S.Ct. 631. “Congress may abrogate the States’ Eleventh Amendment immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.” Kimel, 528 U.S. at 73, 120 S.Ct. 631. In Garrett the Supreme Court was explicit that there was no dispute that Congress intended to abrogate the States’ Eleventh Amendment immunity in the ADA. Garrett, 531 U.S. at 364, 121 S.Ct. 955; 42 U.S.C. § 12202. As is well recognized, Congress may subject nonconsenting States to suit in federal court when it does so pursuant to a valid exercise of its § 5 power: Garrett, 531 U.S. at 364-365, 121 S.Ct. 955. Also, the ADA can apply to the States only to the extent that the statute is appropriate § 5 legislation. Moreover,"
}
]
|
18782 | to move to vacate the trial court judgment, pursuant to section 440.10 of New York’s Criminal Procedure Law (i.e., a petition for a writ of error coram nobis), prior to initiating a federal habeas proceeding. See Mathis v. Hood, 851 F.2d 612, 614-615 (2d Cir.1988). In deed, it is unclear that he even could make such application in the Appellate Division. Ibid. Even if he could have, it is likely that such motion would have foundered as did his appeal. Accordingly, it appears to this Court that such efforts might well have been futile. See 28 U.S.C. § 2254(b) (exhaustion excused where doing so would be ineffective). Thus, and because the exhaustion doctrine is based upon comity and not jurisdiction—see REDACTED aff'd, 811 F.2d 133 (2d Cir.1987) —, this Court finds that further exhaustion by the petitioner was not necessary and turns now to the merits of the petitioner’s due process claim. In determining whether an appeal’s delay rises to the level of a deprivation of constitutionally protected due process rights, the United States Court of Appeals for the Second Circuit has directed subservient courts to apply the factors originally set forth in Barker v. Wingo (“Barker ”), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). See Simmons v. Reynolds (“Simmons ”), 898 F.2d 865, 868 (2nd Cir.1990). These factors are (1) the length of the delay, (2) the reason(s) for the delay, (3) the prisoner’s assertions of | [
{
"docid": "12305519",
"title": "",
"text": "circumstances in this case evince a denial of due process. Respondent implicitly concedes that petitioner need not exhaust his state court remedies and the failure of assigned counsel to perfect the appeal is chargeable to the state. Respondent argues merely that, in the circumstances of this case, the writ should be denied because the five-year old appeal is now “moving forward” and will be heard shortly by the Appellate Division. This may be true, but it is beyond contention that an inability to obtain due process on appeal allows the prisoner to turn directly to the federal court for a writ of habeas corpus without having fully exhausted the available state processes. See, e.g., Shelton, 696 F.2d 1127; Codispoti, 589 F.2d 135; Sapienza v. Vincent, 534 F.2d 1007 (2d Cir.1976); Rivera v. Conception, 469 F.2d 17 (1st Cir.1972); Smith, 365 F.2d 654. Moreover, the failure to correct the deficiencies of assigned counsel constitutes state action. Harris, 601 F.Supp. at 992. In the instant case, it would be meaningless to insist that petitioner exhaust his state remedies when the essence of his due process claim arises directly out of his inability to do so. Therefore, the Court concludes that state processes are ineffective to protect the rights of the prisoner and that the Court may address the merits of the petition. III. When faced with a substantial delay on the appeal of a criminal conviction, courts have consistently looked to the criteria set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether the post-conviction delay constitutes a denial of due process. See United States v. Johnson, 732 F.2d 379 (4th Cir.1984); Rheuark v. Shaw, 628 F.2d 297, 303 & n. 8 (5th Cir.1980); Harris, 601 F.Supp. at 993; Doescher v. Estelle, 454 F.Supp. 943, 947 & n. 1 (N.D.Tex.1978). Barker involved an alleged violation of the Sixth Amendment’s right to a speedy trial. In that case the Court established a balancing test, in which the conduct of the prosecution and the defendant are weighed, and identified four factors"
}
]
| [
{
"docid": "6242478",
"title": "",
"text": "class as their appeals are decided. Joinder is also impractical within the meaning of Rule 23 when membership in the class is constantly changing. See Goetz v. Crosson, 728 F.Supp. 995, 1003 (S.D.N.Y.1990). Accordingly, plaintiffs meet the numerosity requirement of Rule 23(a)(1). b. Commonality Plaintiffs must also demonstrate that “there are questions of law or fact common to the class.” Fed.R.Civ.P. 23(a)(2). Commonality “does not mean that all issues must be identical as to each member, but it does require that plaintiffs identify some unifying thread among the members’ claims that warrants class treatment.” Kamean v. Local 363, Int’l Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of Am., 109 F.R.D. 391, 394 (S.D.N.Y.), appeal dismissed, 833 F.2d 1002 (2d Cir.1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1911, 95 L.Ed.2d 517 (1987). Plaintiffs allege that the question of law common to all class members is: whether delay of over one year in the briefing of an incarcerated indigent’s criminal appeal or delay of over two years in the deciding of such an appeal, that is not caused by the prisoner, can violate his rights to due process or equal protection. Plaintiffs’ Reply Memorandum at 14 (emphasis in original). Applying the test in Barker v. Wingo to appellate delay in criminal appeals would involve the ad hoc balancing of four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether and how a defendant asserted his or her rights to a speedy appeal; and (4) whether the delay unfairly prejudiced the defendant. See Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972). Although Barker involved the right to speedy trial, courts in this circuit have used these four factors in determining whether appellate delay violates due process. Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990). The Supreme Court in Barker v. Wingo acknowledged the need for some sort of line-drawing in assessing the first factor: The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no"
},
{
"docid": "261693",
"title": "",
"text": "19, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956), that “there can be no equal justice where the kind of an appeal a man enjoys ‘depends on the amount of money he has.’ ” While the United States Supreme Court did concede that, as regards the dif-. ferences in quality between retained and appointed appellate counsel, “[a]bsolute equality is not required,” id. 372 U.S. at 357, 83 S.Ct. at 816, if petitioner’s direct appeal is being substantially delayed merely because he is indigent, that may be a difference where “lines can be and are drawn.” Id. Petitioner alleges not that the Oklahoma Court of Criminal Appeals has a general backlog which affects all convicted appellants equally but rather that his appeal rights are being substantially delayed because, as an indigent appellant, he is forced to rely on the Oklahoma Appellate Public Defender’s Office, which is incapable of filing his brief in a timely fashion. To the extent that this delay may impinge upon petitioner’s equal protection rights as guaranteed by Douglas, an insistence upon further exhaustion of state remedies would inappropriately subjugate petitioner’s constitutional rights to the concerns of comity. Fourth, the court should address petitioner’s due process claims. Although we are ruling only on the petitioner’s right to be excused from exhaustion, many courts have analyzed the state appellate delay issue in terms of due process rights. Indeed, this court has recognized that “delay of the post-conviction remedy may very well work a denial of due process.... ” Kelly v. Crouse, 352 F.2d 506, 506 (10th Cir.1965). See also Way v. Crouse, 421 F.2d at 146; Jones v. Crouse, 360 F.2d at 158; Smith v. Kansas, 356 F.2d at 656 (10th Cir.1966), 356 F.2d 654. The Second Circuit used the factors listed in Barker v. Wingo, 407 U.S. at 530-33, 92 S.Ct. at 2191-93, to conclude that a petitioner was both excused from the requirement of exhaustion and had suffered a due process violation. Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990). In Simmons, the court stated that [i]n determining whether a delay of a prisoner’s appeal violates"
},
{
"docid": "23423313",
"title": "",
"text": "Evitts, 469 U.S. at 396, 105 S.Ct. at 836. In determining whether a delay of a prisoner’s appeal violates due process, we look to the Barker criteria, although no one factor is dispositive and all are to be considered together with the relevant circumstances. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2191-93, 33 L.Ed.2d 101 (1972); Brooks, 875 F.2d at 31; Wheeler, 639 F.Supp. at 1378; Harris v. Kuhlman, 601 F.Supp. 987, 993-94 (E.D.N.Y.1985). First, the length of this delay, six years, was clearly excessive; Simmons’s appeal was routine and actually was perfected within two months once competent counsel finally was assigned. Second, no acceptable reason for the delay has been urged; and it was caused, at least in part, by the state court’s failure to supervise its appointed attorneys and to monitor its own calendar. Third, Simmons did not waive his right to appeal; instead he made repeated efforts to assert it. Finally, Judge Nickerson found that the delay caused Simmons “appreciable” prejudice. In light of these circumstances, we agree with Judge Nickerson that the six-year delay in Simmons’s appeal deprived him of his due process right to a speedy appeal. B. Simmons’s Request for Release Although he found due process violations in the excessive delay of Simmons’s appeal, Judge Nickerson nevertheless denied Simmons’s requested habeas relief of release from custody. He did so on the theory that disposition of the appeal while the habeas petition was pending changed Simmons’s custody from illegal to legal. As relief for the temporary constitutional deprivation he granted Simmons permission to seek damages under 42 U.S.C. § 1983. We find the district judge did not err. Cf. Wheeler, 811 F.2d at 135. Although the major function of the writ of habeas corpus has always been to obtain release from illegal custody, Preiser v. Rodriguez, 411 U.S. 475, 484-86, 93 S.Ct. 1827, 1833-34, 36 L.Ed.2d 439 (1973), the statute empowering federal courts to grant the writ does not provide immediate release as the only relief available to a petitioner. Instead, it directs the court to “dispose of the matter as law"
},
{
"docid": "14850833",
"title": "",
"text": "prerequisite for habeas review. We agree with Cody that the district court properly considered his claim on the merits. The Supreme Court has not yet directly addressed the issue of whether the Constitution guarantees a speedy criminal appeal, once an opportunity for an appeal is provided. The lower federal courts, however, have grappled with the question, and it is now clear in this circuit that substantial delay in the state criminal appeal process is a sufficient ground to justify the exercise of federal habeas jurisdiction. See, e.g., Diaz v. Henderson, 905 F.2d 652, 653-54 (2d Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 867-70 (2d Cir.1990); Brooks v. Jones, 875 F.2d 30, 31-32 (2d Cir.1989); Mathis v. Hood, 851 F.2d 612, 614-15 (2d Cir.1988); Wheeler v. Kelly, 639 F.Supp. 1374, 1377-78 (E.D.N.Y.1986), aff’d, 811 F.2d 133 (2d Cir.1987). In Mathis, we held that even when the habeas petitioner seeks release from custody based on delay or denial of his right to appeal and his conviction is thereafter affirmed by the state appellate court, the affirmance does not by itself moot the habeas petition because undue appellate delay raises a legitimate due process claim. 851 F.2d at 613-15. Given substantial and unjustified delay, the petitioner is “entitled to a habeas determination of whether his appeal was no more than a ‘meaningless ritual,’ ” Simmons, 898 F.2d at 867 (quoting Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985)). Of course, the fact that a petitioner in such circumstances presents a cognizable habeas claim does not decide the substantive question of what type of relief, if any, is appropriate. Mathis, 851 F.2d at 615. B. Arguments Concerning the Merits Appellant next argues that even if the district court had jurisdiction, it erred in granting Cody the remedy of unconditional release. To determine whether release was an appropriate remedy, however, we must first determine whether Cody suffered a due process violation. With respect to the merits of Cody’s claim, we have acknowledged that the right to a reasonably timely appeal is included among the protections afforded by the"
},
{
"docid": "11320498",
"title": "",
"text": "to get relief. Through repeated communications with his counsel, supplemented by those of his family and his inmate caseworker, and entreaties to the Division of Youth, the Legal Aid Society, and the District Attorney, he attempted to pursue his state remedies, if indeed he had any, as best he could. Moreover, he notified the Appellate Division several times of his difficulties with Shapiro — in 1984 by sending the Clerk a copy of his letter to the District Attorney, in 1985 through Beeler, and in 1987 through his brother. Yet the state, which admits to having known of Shapiro’s unprofessional conduct at least since 1985, afforded petitioner no remedy for over three- and-a-half years. As in the Mathis case, therefore, petitioner’s state remedies, if available, were ineffectual. Mathis, supra, 851 F.2d at 615; see 28 U.S.C. § 2254(b); see also Harris v. Kuhlman, 601 F.Supp. 987, 991 (E.D.N.Y.1985) (inadequate appeals process in Second Department effectively blocked petitioner’s ability to exhaust state remedies). The court is bound by the Second Circuit’s holding that the state’s eventual disposition of his appeal did not moot his petition. Mathis, supra, 851 F.2d at 614. The court will thus address the merits. III. Courts in this circuit have used the criteria articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), regarding the right to a speedy trial to determine whether delay in hearing a prisoner’s appeal constitutes a denial of due process. See, e.g., Wheeler, supra, 639 F.Supp. at 1378; Harris, supra, 601 F.Supp. at 993. Those criteria are: (1) Is the length of the delay excessive? (2) Are there acceptable reasons for the delay? (3) Has petitioner effectively waived his right by failing properly to assert it? (4) Was there prejudice to petitioner? See Wheeler, supra, 639 F.Supp. at 1378; Harris, supra, 601 F.Supp. at 993-94. The delay was patently excessive. The appeal was routine. Mr. Kleinman was able to perfect it within two months of his assignment. The more than six years between petitioner’s filing of his notice of appeal and the hearing constituted over two-thirds of"
},
{
"docid": "16735222",
"title": "",
"text": "process right to a speedy appeal. In Burkett I, we applied the criteria articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether appellate delay had violated due process. 826 F.2d at 1222; accord Harris, 15 F.3d at 1559; Tucker, 8 F.3d at 676; Johnson, 732 F.2d at 381-82; Rheuark, 628 F.2d at 303. In Barker, the Supreme Court identified four factors to balance when examining an alleged speedy trial violation: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530, 92 S.Ct. at 2192. Although the interests at stake before trial and before appeal obviously differ, they are sufficiently similar to warrant the same general approach. See Moore v. Arizona, 414 U.S. 25, 27, 94 S.Ct. 188, 190, 38 L.Ed.2d 183 (1973) (Barker factors may carry “different weight where a defendant is incarcerated after conviction”); Cody, 936 F.2d at 719 (“Barker factors should not be applied uncritically” in speedy appeal context). The 13-year delay in this case is an outrage, and that Simmons’ appeal as of right “slipped through the cracks” is shameful. See Burkett I, 826 F.2d at 1225 (five and one-half year delay in sentencing and appeal warranted discharge); cf. Harris, 15 F.3d at 1560 (two-year appellate delay ordinarily gives rise to a presumption of inordinate delay). The subsequent period of litigation marking Simmons’ efforts to obtain a direct appeal apparently took on a life of its own, without regard for fundamental notions of fairness and due process. The district court’s finding that the reason for the delay was ineffective assistance by appointed trial counsel and the Public Defender is clearly correct. See Simmons, 689 F.Supp. at 443-44. We recognize that “nominal representation on appeal violates due process because ‘a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.’” Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (quoting Evitts, 469 U.S. at 396, 105 S.Ct. at 836). Responsibility for this delay cannot"
},
{
"docid": "2007715",
"title": "",
"text": "take additional steps in the state court before he may be heard in the federal courts. Mathis v. Hood, 851 F.2d 612, 614-15 (2d Cir.1988). (We note that Mathis was decided on July 14, 1988, two months after the district court dismissed Brooks’s petition on May 16, 1988.) Even were the writ of coram nobis available under New York law to bring this pattern of neglect and delay to the attention of the Appellate Division, an issue upon which we expressed uncertainty in Mathis, we believe here that the “circumstances were such that the use of the writ would have been ineffective to protect [Brooks’s] rights in this case.” Id. at 614. When the petitioner can substantiate his complaint that his right to appeal is being violated by inattention and time-consuming procedures, to require one more technical step would be to tolerate the frustration of the petitioner’s due process rights. Roberson v. State of Connecticut, 501 F.2d 305, 309-10 (2d Cir.1974). We reach our result in this case only upon a consideration of all the relevant factors, which include not only the length of the delay suffered by Brooks, but also the state’s lack of a legitimate reason for it, Brooks’s repeated assertion of his right to a speedy hearing of his appeal and the prejudice he has suffered while seeking that which is his due. Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2191-93, 33 L.Ed.2d 101 (1972). It now appears that Brooks’s appeal will be heard by the Appellate Division in the near future. We were assured at oral argument by the District Attorney of Kings County, acting through her assistant Victor Barall, that the state will file its brief by May 23 and that the District Attorney would move to expedite the appeal so that it will be heard in June. While we are loath under any circumstances to undertake a review of the complaints Brooks makes regarding his state convictions if the state is about to do so and thus to accord him the relief he seeks, see Wheeler v. Kelly, 639 F.Supp. 1374,"
},
{
"docid": "4118756",
"title": "",
"text": "the district court denied the petition, noting that the proper means of challenging state convictions was through § 2254 rather than § 2255. In its order, the district court did observe, however, that the extreme appellate delay in Smith’s case appeared to give rise to some questions as to the fundamental fairness of his situation. In his resentencing brief, Smith picked up on this point and argued that the delay in adjudicating the government’s appeal constituted a denial of due process. The district court agreed and ordered Smith’s release on March 15, 1995. Now, the government again appeals under 18 U.S.C. § 3742(b). II. THE RIGHT TO A SPEEDY APPEAL The speedy trial guarantee of the Sixth Amendment applies only to proceedings in the trial court. See Burkett v. Cunningham, 826 F.2d 1208, 1219-21 (3d Cir.1987); 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 18.5(c) (1984). Our sister circuits have held, however, that a similar guarantee applies to criminal appeals via the Due Process Clause. See, e.g., Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett, 826 F.2d at 1221-22. In so holding, these courts have first recognized that there is no due process right to an appeal at all, but that an appeal must nonetheless comport with due process “if a State has created appellate courts as ‘an integral part’ ” of its criminal justice system. Harris, 15 F.3d at 1558 (quoting Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985)). These courts have then adopted the speedy trial analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), with slight modifications, as the framework for evaluating delay in the appellate context. See Harris, 15 F.3d at 1558-59; Simmons, 898 F.2d at 868; Burkett, 826 F.2d at 1222; see also United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert."
},
{
"docid": "1257340",
"title": "",
"text": "again the question of whether habeas relief can be granted because of an unreasonable delay in the hearing of a criminal appeal by the state court. On closer examination, however, the appeal presents not a problem of the due process implications of appellate delay, but an issue of conflict of interest between appellate counsel and the defendant. We have previously held that due process requires that an appeal be heard promptly. See Diaz v. Henderson, 905 F.2d 652, 653 (2d Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Jenkins v. Coombe, 821 F.2d 158 (2d Cir.1987). Nevertheless, we have yet to hold that appellate delay by itself constitutes grounds for habeas relief, and we decline to do so today. Insofar as Mathis’s position might be interpreted to mean that the mere lapse of time is a sufficient basis for release, we reject it based on our previous decisions in Simmons and Diaz. Thus far, we have held that a remedy, perhaps the only remedy for a convicted defendant awaiting his state appeal is to move quickly to obtain a conditional writ. See Diaz, 905 F.2d at 652; Simmons, 898 F.2d at 870. If the defendant does not act quickly to require that his appeal be heard, he cannot later argue that he is entitled to release because the state court took too long to hear his appeal. Because the state court has already affirmed Mathis’s appeal, the remedy of an alternative writ is not available to him. We do recognize, however, that the six-year delay constituted a violation of Mathis’s due process rights. Unfortunately for Mathis, we do not consider this delay, without more, to be a sufficient basis for release from custody. Mathis argues that the analysis in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-94, 33 L.Ed.2d 101 (1972), is the relevant test to determine both whether a due process violation occurred and whether a habeas petitioner is entitled to relief. We disagree. The Barker analysis goes only to the question of whether a due process violation has occurred, and we find no"
},
{
"docid": "1257341",
"title": "",
"text": "to move quickly to obtain a conditional writ. See Diaz, 905 F.2d at 652; Simmons, 898 F.2d at 870. If the defendant does not act quickly to require that his appeal be heard, he cannot later argue that he is entitled to release because the state court took too long to hear his appeal. Because the state court has already affirmed Mathis’s appeal, the remedy of an alternative writ is not available to him. We do recognize, however, that the six-year delay constituted a violation of Mathis’s due process rights. Unfortunately for Mathis, we do not consider this delay, without more, to be a sufficient basis for release from custody. Mathis argues that the analysis in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-94, 33 L.Ed.2d 101 (1972), is the relevant test to determine both whether a due process violation occurred and whether a habeas petitioner is entitled to relief. We disagree. The Barker analysis goes only to the question of whether a due process violation has occurred, and we find no error with the district court’s application of the Barker factors and its holding that Mathis did suffer such a violation. A separate and distinct inquiry, however, is required to determine the appropriate remedy for the violation; some showing of prejudice to the appeal is necessary for habeas relief. See Simmons, 898 F.2d at 869; Diaz, 905 F.2d at 653. In this case, the district court believed that although we have required a showing of prejudice, we have yet to define the exact test for the degree of prejudice necessary to grant relief. It then determined that the appropriate test for prejudice was one “akin to the second prong of Strickland: appellate delay is prejudicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different. A reasonable probability ‘is a probability sufficient to undermine confidence in the outcome.’ ” See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the standard for prejudice was unclear from our previous cases, we now"
},
{
"docid": "14908419",
"title": "",
"text": "Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.1984). . 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). . Simmons v. Beyer, 44 F.3d 1160, 1170 (3d Cir.1995) (quoting Coe v. Thurman, 922 F.2d 528, 531 (9th Cir.1990)). See also Taylor v. Hargett, 27 F.3d 483, 486 n. 2 (10th Cir.1994) (attributing to the state the time during which the Oklahoma Court of Criminal Appeals deliberated on the case). . Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). . Id. at 209 (quoting Doggett v. United States, 505 U.S. 647, 657, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). . Harris v. Champion, 15 F.3d 1538, 1560 (10th Cir.1994). . Smith, 94 F.3d at 209. . Coe, 922 F.2d at 531. . Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182). . See, e.g., Simmons v. Reynolds, 898 F.2d at 868; Mathis v. Hood, 937 F.2d 790, 794 (2d Cir.1991). . United States v. Haney, 45 M.J. 447, 448 (C.A.A.F.1996). . See, e.g., United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir.1995) (holding that relief for appellate delay requires a showing of prejudice, such as a demonstration that the delay impaired the appeal or the defense in the event of retrial); Harris, 15 F.3d at 1563-64 (recognizing three typical forms of prejudice arising from appellate delay: (1) impairment of the grounds for appeal; (2) anxiety supported by a colorable state or federal claim that would warrant reversal of the conviction or a reduction of sentence; and (3) oppressive incarceration). . See Art. 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). . See generally United States v. Tardif, 57 M.J. 219 (C.A.A.F.2002). CRAWFORD, Chief Judge (dissenting): Petitioner has raised the issue of post-trial delay before the court below and that issue is currently pending before the Court of Criminal Appeals. This Court abuses its authority and its -writ jurisdiction by directing the lower court to rule, and suggesting how"
},
{
"docid": "261694",
"title": "",
"text": "exhaustion of state remedies would inappropriately subjugate petitioner’s constitutional rights to the concerns of comity. Fourth, the court should address petitioner’s due process claims. Although we are ruling only on the petitioner’s right to be excused from exhaustion, many courts have analyzed the state appellate delay issue in terms of due process rights. Indeed, this court has recognized that “delay of the post-conviction remedy may very well work a denial of due process.... ” Kelly v. Crouse, 352 F.2d 506, 506 (10th Cir.1965). See also Way v. Crouse, 421 F.2d at 146; Jones v. Crouse, 360 F.2d at 158; Smith v. Kansas, 356 F.2d at 656 (10th Cir.1966), 356 F.2d 654. The Second Circuit used the factors listed in Barker v. Wingo, 407 U.S. at 530-33, 92 S.Ct. at 2191-93, to conclude that a petitioner was both excused from the requirement of exhaustion and had suffered a due process violation. Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990). In Simmons, the court stated that [i]n determining whether a delay of a prisoner’s appeal violates due process, we look to the Barker criteria, although no one factor is dispositive and all are to be considered together with the relevant circumstances.... First, the length of this delay, six years, was clearly excessive.... Second, no acceptable reason for the delay has been urged; and it was caused, at least in part, by the state court’s failure to supervise its appointed attorneys and to monitor its own calendar. Third, [defendant] did not waive his right to appeal.... Finally, [the district court] found that the delay caused ... ‘appreciable’ prejudice. In light of these circumstances, we agree ... that the six-year delay ... deprived him of his due process right to a speedy appeal. Id. at 868. Without ruling on the merits of petitioner’s due process claims, we can at least conclude that his due process concerns would be exacerbated by a slavish adherence to exhaustion in this case. Finally, our fifth concern is that we are troubled by the interaction between requiring exhaustion in this case and petitioner’s right to effective assistance of"
},
{
"docid": "6242479",
"title": "",
"text": "not caused by the prisoner, can violate his rights to due process or equal protection. Plaintiffs’ Reply Memorandum at 14 (emphasis in original). Applying the test in Barker v. Wingo to appellate delay in criminal appeals would involve the ad hoc balancing of four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether and how a defendant asserted his or her rights to a speedy appeal; and (4) whether the delay unfairly prejudiced the defendant. See Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972). Although Barker involved the right to speedy trial, courts in this circuit have used these four factors in determining whether appellate delay violates due process. Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990). The Supreme Court in Barker v. Wingo acknowledged the need for some sort of line-drawing in assessing the first factor: The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. 407 U.S. at 530-31, 92 S.Ct. at 2192 (emphasis added). Using this language in Barker as a guide, the common question of law plaintiffs have identified is simply another way of asking whether delay of over one year in the briefing of an incarcerated indigent’s criminal appeal or delay of over two years in the deciding of such an appeal that is not caused by actions of the prisoner is presumptively prejudicial. Plaintiffs justify the bright line they have selected by pointing to the deadlines established under New York Criminal Procedure Law and the rules of the Appellate Division, First Department. Appeals in criminal cases in the First Department “must be brought on for argument within 120 days after _ the last day in which a notice of appeal was required to"
},
{
"docid": "16687649",
"title": "",
"text": "the form of a writ of coram nobis. For the reasons set forth below, we disagree. Under 28 U.S.C. § 2254(b), a petition for a writ of habeas corpus: shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner, (emphasis added) It is unclear whether under New York law a writ of error coram nobis could have been used to bring the delay to the attention of the First Department. However, even assuming that the writ was available, circumstances were such that the use of the writ would have been ineffective to protect Mathis’ rights in this case. In New York, the common law writ of error coram nobis is essentially codified in Criminal Procedure Law (“CPL”) § 440.10. This section, entitled “Motion to vacate judgment,” sets forth the instances in which collateral review may be had including those traditionally encompassed by the writ of habeas corpus. See CPL § 440.10(l)(a)-(h). All of the eight grounds designated in subsection 1 refer to a judgment and specify on what grounds it may be attacked. The Practice Commentary makes clear that the challenge must be made in the court which rendered the judgment in question. Clearly, § 440.10 affords petitioner no relief since it is from the lack of any disposition in the Appellate Division that he seeks relief. See People v. Bachert, 69 N.Y.2d.593, 597, 509 N.E.2d 318, 320, 516 N.Y.S.2d 623, 625 (1987) (CPL § 440.10 unavailable to raise claim of ineffectiveness of appellate counsel because “[ajppellate courts do not render judgments of conviction: they only affect them.”) As noted in People v. Bachert, supra, the common law writ of coram nobis survived codification and has been expanded “when necessary to afford the defendant a remedy when no other avenue of judicial relief appeared available.” 69 N.Y.2d at 598, 509 N.E.2d 318, 516 N.Y.S.2d 623 (quoting People v. Hairston, 10 N.Y.2d"
},
{
"docid": "23423309",
"title": "",
"text": "from custody. A. The Defendants’ Contentions The defendants contended in the district court and argue here that the affirmance of his conviction by the appellate division renders Simmons’s petition moot. The district court rejected that argument, as do we. A state court’s hearing of an appeal does not moot a habeas petition based on a claimed denial of due process of the petitioner’s right to appeal because it does not resolve the fundamental issue raised: whether delay or ineffective assistance of counsel violated the petitioner’s right to an adequate and effective appeal. Evitts v. Lucey, 469 U.S. 387, 400-05, 105 S.Ct. 830, 838-41, 83 L.Ed.2d 821 (1985). Even where the petitioner seeks release from custody based on a denial of his right to appeal, affirmance of the conviction does not moot the habeas petition. Mathis v. Hood, 851 F.2d 612, 614 (2d Cir.1988) (“a remedy which is still available to him even though his appeal has at last been decided”). Thus, despite his appeal having been decided, Simmons was entitled to a habeas determination of whether his appeal was no more than a “meaningless ritual”, Evitts, 469 U.S. at 394, 105 S.Ct. at 834 (citation omitted), entitling him to release, to rehearing of his appeal, or to some other remedy. The district court also correctly rejected defendants’ exhaustion argument. A petition of habeas corpus may not be granted to a state prisoner unless he has exhausted state remedies, or no state corrective procedure exists, or there exist “circumstances rendering such process ineffective to protect the rights of the prisoner.” 28 U.S.C. § 2254(b). “[Wjhen it is perfectly apparent, as it is here, that a prisoner’s requests to the state court and requests to state-appointed counsel have been to no avail * * * the prisoner need not take additional steps in the state court before he may be heard in the federal courts.” Brooks v. Jones, 875 F.2d 30, 31 (2d Cir.1989); Mathis, 851 F.2d at 614-15; Wheeler v. Kelly, 639 F.Supp. 1374, 1378 (E.D.N.Y.1986), aff'd, 811 F.2d 133 (2d Cir.1987). Clearly, Simmons made frequent but unavailing requests to have"
},
{
"docid": "5612227",
"title": "",
"text": "denial of the petitioner’s right to appeal”. Id. at 867. A habeas petition claiming delay of appeal raises the issue of whether the delay “violated the petitioner’s right to an adequate and effective appeal.” Id.; see Mathis v. Hood, 851 F.2d 612, 614 (2d Cir.1988). Even though his conviction has been affirmed and his appeal has been heard by the state court, “[the petitioner is] entitled to a habeas determination of whether [the delay rendered his appeal] no more than a ‘meaningless ritual’ ”. Simmons, 898 F.2d at 867 (quoting Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 835, 83 L.Ed.2d 821 (1985)). The remedies Diaz seeks — release, retrial, or a new appeal — would be appropriate only if the delay of his appeal had prejudiced his due process rights so as to make his confinement constitutionally deficient. Id. at 869; see e.g., Jenkins v. Coombe, 821 F.2d 158, 162 (2d Cir.1987) (new appeal ordered when state prisoner had no counsel on direct appeal). However, the constitutional integrity of his appeal was not prejudiced by the delay because, as Diaz’s attorney correctly conceded at oral argument, he could not conscientiously claim that the appeal would have had a different result absent the delay. Since Diaz’s appeal has now been heard, and he can make no claim that it was constitutionally tainted because of the delay, he is not unlawfully incarcerated and, therefore, not entitled to a writ of habeas corpus. See Simmons, 898 F.2d at 869; see also Preiser v. Rodriguez, 411 U.S. 475, 484-86, 93 S.Ct. 1827, 1833-34, 36 L.Ed.2d 439 (1973) (a writ for habeas corpus provides relief from illegal custody). Nevertheless, Diaz claims that the unconstitutional delay of his appeal did cause him anxiety for which he is entitled to a remedy. See Rheuark v. Shaw, 628 F.2d 297, 303 n. 8 (5th Cir.1980); Geames v. Henderson, 725 F.Supp. 681, 686 (E.D.N.Y.1989); Wheeler v. Kelly, 639 F.Supp. 1374, 1380-81 (E.D.N.Y.1986), aff'd, 811 F.2d 133 (2d Cir.1987); see also Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972). Habeas"
},
{
"docid": "4118757",
"title": "",
"text": "1538, 1558 (10th Cir.1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett, 826 F.2d at 1221-22. In so holding, these courts have first recognized that there is no due process right to an appeal at all, but that an appeal must nonetheless comport with due process “if a State has created appellate courts as ‘an integral part’ ” of its criminal justice system. Harris, 15 F.3d at 1558 (quoting Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985)). These courts have then adopted the speedy trial analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), with slight modifications, as the framework for evaluating delay in the appellate context. See Harris, 15 F.3d at 1558-59; Simmons, 898 F.2d at 868; Burkett, 826 F.2d at 1222; see also United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984); Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980) (adopting Barker analysis in dicta), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981). In Barker, the Supreme Court identified four factors for courts to balance in determining whether a trial delay is unconstitutional: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” 407 U.S. at 530, 92 S.Ct. at 2192. According to the Court, none of these factors could be termed “either a necessary or sufficient condition,” and courts would be best served by engaging in a “difficult and sensitive balancing process.” Id. at 533, 92 S.Ct. at 2193. With respect to the fourth factor, prejudice, the Court further directed lower courts to consider three interests of the defendant “which the speedy trial right was designed to protect[:] ... (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that"
},
{
"docid": "22251480",
"title": "",
"text": "and appeal. See United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F.2004) (conclusions of law are reviewed under the de novo standard); United States v. Cooper, 58 M.J. 54, 58 (C.A.A.F.2003) (speedy trial issues, as conclusions of law, are reviewed de novo). In conducting this review we have adopted the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice. United States v. Jones, 61 M.J. 80, 83 (C.A.A.F.2005); Toohey, 60 M.J. at 102. While Barker addressed speedy trial issues in a pretrial, Sixth Amendment context, its four-factor analysis has been broadly adopted for reviewing post-trial delay due process claims. Once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182 (“We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of [due process].”); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990) (“[N]o one factor is dispositive and all are to be considered together with the relevant circumstances.”). We analyze each factor and make a determination as to whether that factor favors the Government or the appellant. See Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980) (calling for an ad hoc evaluation of the four Barker factors). We then balance our analysis of the factors to determine whether there has been a due process violation. Barker, 407 U.S. at 533, 92 S.Ct. 2182 (“[C]ourts must still engage in a difficult and sensitive balancing process.”). No single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding. Id. With this structure as our guide, we turn to an analysis of the four factors as they arise in Moreno’s case. 1."
},
{
"docid": "14850832",
"title": "",
"text": "Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967); Wheeler v. Kelly, 811 F.2d 133, 135 (2d Cir.1987). Appellant claims therefore that habeas review is not warranted. Appellant concedes that excessive state appellate delay may justify excusing a petitioner’s failure to exhaust state remedies, but argues that in such circumstances the federal habeas court should simply assume jurisdiction over the state appeal and decide the merits of any attack on the conviction itself. In his habeas petition, Cody alleges that he is being held unlawfully because “after 9% years of confinement [he] has not had timely appellate review” in “state court[ ]” of “the conviction for which he stands” incarcerated. He argues that this lengthy delay is a constitutional violation of his due process rights, a violation for which New York State is solely responsible owing to “[(Inexcusable bad faith.” Cody’s contention is that by flagrantly violating his due process rights in this way the state has rendered his otherwise lawful incarceration unlawful. Such a claim satisfies the jurisdictional prerequisite for habeas review. We agree with Cody that the district court properly considered his claim on the merits. The Supreme Court has not yet directly addressed the issue of whether the Constitution guarantees a speedy criminal appeal, once an opportunity for an appeal is provided. The lower federal courts, however, have grappled with the question, and it is now clear in this circuit that substantial delay in the state criminal appeal process is a sufficient ground to justify the exercise of federal habeas jurisdiction. See, e.g., Diaz v. Henderson, 905 F.2d 652, 653-54 (2d Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 867-70 (2d Cir.1990); Brooks v. Jones, 875 F.2d 30, 31-32 (2d Cir.1989); Mathis v. Hood, 851 F.2d 612, 614-15 (2d Cir.1988); Wheeler v. Kelly, 639 F.Supp. 1374, 1377-78 (E.D.N.Y.1986), aff’d, 811 F.2d 133 (2d Cir.1987). In Mathis, we held that even when the habeas petitioner seeks release from custody based on delay or denial of his right to appeal and his conviction is thereafter affirmed by the state appellate court, the affirmance does"
},
{
"docid": "5612226",
"title": "",
"text": "had at last been affirmed. Diaz now claims that the district court erred by dismissing his petition as moot. He argues that because the delay was excessive, his due process rights were violated, and he is therefore entitled to habeas relief. We agree with Diaz that the district court erred in viewing his petition as moot, but we do not agree that the relief Diaz seeks in this habeas proceeding is available to him. In short, the petition had to be dismissed on its merits. DISCUSSION Simmons v. Reynolds, decided by this court on March 12, 1990, well after the district court had dismissed Diaz’s petition, involved a similar problem of a long-delayed appeal in the appellate division, second department, where the Legal Aid Society withdrew its representation and was replaced by attorney Shapiro who neglected his duty to bring the appeal on for prompt disposition. 898 F.2d 865 (2d Cir. 1990). As we pointed out in Simmons, “[a] state court’s hearing of an appeal does not moot a habeas petition based on a claimed denial of the petitioner’s right to appeal”. Id. at 867. A habeas petition claiming delay of appeal raises the issue of whether the delay “violated the petitioner’s right to an adequate and effective appeal.” Id.; see Mathis v. Hood, 851 F.2d 612, 614 (2d Cir.1988). Even though his conviction has been affirmed and his appeal has been heard by the state court, “[the petitioner is] entitled to a habeas determination of whether [the delay rendered his appeal] no more than a ‘meaningless ritual’ ”. Simmons, 898 F.2d at 867 (quoting Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 835, 83 L.Ed.2d 821 (1985)). The remedies Diaz seeks — release, retrial, or a new appeal — would be appropriate only if the delay of his appeal had prejudiced his due process rights so as to make his confinement constitutionally deficient. Id. at 869; see e.g., Jenkins v. Coombe, 821 F.2d 158, 162 (2d Cir.1987) (new appeal ordered when state prisoner had no counsel on direct appeal). However, the constitutional integrity of his appeal was"
}
]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.