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https://www.courtlistener.com/api/rest/v3/opinions/7217007/ | MEMORANDUM**
John Lopes (“Lopes”) appeals from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We reverse and remand for further development of the record. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.
The district court held that Lopes was not entitled to equitable tolling during the period that his administrative appeal was pending, but did not hold an evidentiary hearing to determine the exact circumstances of Lopes’ case. The Antiterrorism and Effective Death Penalty Act’s (“AED-PA”) statute of limitations provision is subject to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002). For a petitioner to receive the benefit of equitable tolling, he must prove that there were extraordinary circumstances beyond his control that made it impossible to file a petition on time. Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.2002). If a petitioner fails to exercise due diligence the limitations period will not be equitably tolled. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999). The grounds for determining equitable tolling are “highly fact dependant.” Lott, 304 F.3d at 923 (quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc)).
If there were any circumstances under which the facts alleged by Lopes could have entitled him to equitable tolling, the district court should have conducted an evidentiary hearing or allowed Lopes, a pro se petitioner, to expand his declaration. See Whalem/Hunt, 233 F.3d at 1148. Lopes claims that he was told by a counselor at the prison that he needed to pursue a “Hea Good” hearing. Athough the exact context in which this advice was given is unclear, it is possible that the counselor told Lopes that he could only pursue his claim in court after filing a complaint with the California Department of Corrections. If he reasonably relied on such advice, making it impossible for him to file a timely habeas petition, then Lopes is entitled to equitable tolling. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1193-94 (9th Cir.2001) (en banc) (holding that incorrect advice by INS personnel qualified as extraordinary circumstances that triggered equitable tolling of a deadline for filing an asylum appeal).
Because it is possible that a prison official misled Lopes into believing that he *378had to exhaust administrative remedies before challenging the calculation of his presentence custody credits, the dismissal of Lopes’ petition is reversed and remanded for further proceedings to determine “precisely what the factual circumstances were regarding” the information provided to Lopes. Whalem/Hunt, 233 F.3d at 1149 (Tashima, J., concurring).
On remand, the district court should determine whether Lopes was told by a prison official that he needed to file an administrative appeal before he could exhaust his state judicial remedies. If Lopes did receive such advice, the district court must then determine whether Lopes reasonably relied on such advice, making it impossible to file a timely habeas petition. Finally, the court must determine whether, under the circumstances, Lopes exercised due diligence in pursuing his claims. See Miles, 187 F.3d at 1107 (stating that “external forces, rather than a petitioner’s lack of diligence” must be cause of untimely filing). If Lopes meets all the requirements for equitable tolling, then AEDPA’s statute of limitations should be tolled.
The judgment of the district court dismissing Lopes’ § 2254 habeas petition is
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217008/ | MEMORANDUM *
Ikon Office Solutions, Inc. (“Ikon”) appeals the magistrate judge’s grant of summary judgment in favor of American Office *379Products, Inc., Larry Bradley, Lesa Bergey, and Craig Knouf (together “Appellees”). Appellees cross-appeal the magistrate judge’s denial of attorney fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm both rulings. The parties are familiar with the facts, and we will not review them here.
I. Ikon’s Appeal
The district court correctly concluded Ikon could not enforce its noncompetition agreements against Bergey or Bradley. Bergey’s written noncompetition agreement was invalid because she did not sign it until several days after she began her employment with Ikon.1 Additionally, nothing in the record suggests that Bergey orally agreed to a noncompetition agreement upon her initial employment with Ikon.2 Therefore, Ikon cannot assert its noncompetition agreement against Bergey.
Ikon cannot assert a noncompetition agreement against Bradley either. Assuming that Bradley’s noncompetition agreement was valid, Ikon waived its right to assert the agreement.3 Ikon’s human resources department said that Bradley did not have a noncompetition agreement in his file, where an employer would logically keep it. Furthermore, Ikon’s counsel wrote Bradley to inform him that he could not disclose Ikon’s confidential information but did not mention Bradley’s noncompetition agreement. In fact, it was more than two months after Bradley had been working for American Office Products before Ikon found the noncompetition agreement in a vacant office. By this time, Bradley and American Office Products had relied on Ikon’s unequivocal representations and conduct.4 Through Ikon’s representations and conduct, it abandoned, and thus waived, its rights under the noncompetition agreement.
We hold that neither Bergey nor Bradley’s noncompetition agreements were enforceable. Therefore, the district court properly granted summary judgment in favor of Appellees.
II. Appellee’s Cross-Appeal
The district court properly denied Appellees’ request for attorney fees.5 A court may award attorney fees only if Ikon made its claim against Appellees in bad faith.6 Under Oregon’s definition of bad faith, a court must find that the plaintiff had an “improper purpose” for asserting its claim.7 In this case, the record does not show that Ikon had a subjective improper purpose. We therefore hold that Appellees were not entitled to attorney fees.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Or.Rev.Stat. § 653.295(l)(a) (1989) (requiring that noncompetition agreements be entered into upon the initial employment).
. Id. at § 653.295(6)(c).
. Under Oregon law, waiver is an "intentional relinquishment or abandonment of a known right.” Moore v. Mut. of Enumclaw Ins. Co., 317 Or. 235, 855 P.2d 626, 629 (1993) (emphasis added).
. Bennett v. Farmers Ins. Co. of Or., 332 Or. 138, 26 P.3d 785, 796-97 (2001).
. The question of whether the district court properly interpreted the attorney fee statute is a question of law that we review de novo. Kona Enter. Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000).
. Or.Rev.Stat. § 646.467(1) (2001).
. Mattiza v. Foster, 311 Or. 1, 803 P.2d 723, 728 (1990). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217009/ | MEMORANDUM**
Kavin Rhodes appeals the denial of his 28 U.S.C. § 2254 habeas petition. Rhodes claims his Sixth Amendment rights were violated because the state trial court denied his three Marsden requests to substitute his court-appointed lawyer for new counsel. See People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970) (recognizing that a California criminal defendant may move to have his court-appointed attorney substituted for different counsel if the appointed attorney is rendering inadequate assistance). In denying Rhodes’s three Marsden motions, three different superior court judges found that Rhodes was receiving the effective assistance of counsel. The court also found that Rhodes was generally not credible when articulating how his court-appointed attorney was deficient. Absent clear and convincing evidence that Rhodes was in fact credible, we must defer to the trial court’s credibility determination. See 28 U.S.C. § 2254(e)(1). We find that Rhodes has not satisfied his burden of rebutting the trial court’s credibility determination, and we therefore conclude that the trial court’s Marsden rulings were not contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d).
After the trial court denied his third Marsden motion, Rhodes elected to proceed pro per. We hold that Rhodes’s waiver of his right to counsel was knowing, intelligent, and voluntary. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (holding that under the Sixth Amendment a criminal defendant may waive his right to counsel if that waiver is knowing, intelligent, and voluntary). The trial court repeatedly warned Rhodes of the dangers of proceeding without legal counsel, and Rhodes decided to proceed without counsel nonetheless. Rhodes’s argument that his waiver of counsel was involuntary because the trial court forced him to proceed pro per by denying his Marsden motions is without merit. See United States v. Robinson, 913 F,2d 712, 716 (9th Cir.1990) (observing that “limitations on the range of a defendant’s free choice with regard to appointed or retained counsel are not constitutionally offensive and do not render a subsequent election of pro se status involuntary”).
*381Rhodes further argues that the state trial court violated the Equal Protection Clause of the Fourteenth Amendment by denying him access to the transcript from a separate trial. We find no cases requiring a trial court to furnish a defendant with a free copy of a transcript from another trial. The state court’s decision is thus not in conflict with clearly established federal law.
Judgment AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217010/ | MEMORANDUM**
Brown Investment (“Brown”) appeals the district court’s denial of its motion to intervene as of right under Fed.R.Civ.P. 24(a)(2) in an action brought by several environmental groups against the United States Forest Service, challenging the Forest Service’s actions related to the North Fork of the Eel River, located in California’s Six Rivers National Forest. We dismiss for lack of appellate jurisdiction.
An order denying a motion to intervene as of right is appealable only if the order prevents the potential intervenor from becoming a party in any respect. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375-76, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987). In this case, the district court denied intervention at the liability phase but stated that “[wjith regard to Brown’s right to intervene in the remedial phase of the case, the court denies the motion, but will grant Brown leave to revisit the issue.” In Churchill County v. Babbitt, 150 F.3d 1072, 1082, amended by 158 F.3d 491 (9th Cir.1998), we held that a party can obtain effective review of its claims even if the party is permitted to intervene at the remedy phase only. The order in this case denies intervention at the liability phase, but leaves open the possibility of intervention at the remedial phase. Because Brown still has an oppor*382tunity to become a party to the suit prior to a final judgment on the merits, assuming that liability is established thus affecting Brown’s interests, the order does not prevent Brown from becoming a party in any respect. We therefore do not have jurisdiction under the collateral order exception to 28 U.S.C. § 1291. See Cohen v. Beneficial Industrial Loan Corp., 387 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217264/ | ORDER
Lester Dale Morgan, proceeding pro se and in forma pauperis, appeals the district court order dismissing his employment discrimination action. This ease has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Seeking monetary relief, Morgan sued Standard Electric Company, Inc. (Standard Electric), and Louisville Electric Joint Apprenticeship & Training Committee (Training Committee). Morgan was enrolled as a student with the Training Committee and worked as an apprentice at Standard Electric. He alleged that the defendants wrongfully terminated him in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1). The defendants filed motions to dismiss. The district court granted the motions, holding that Morgan’s action against the Training Committee was barred by res judicata and that Morgan had no cause of action against Standard Electric because he could not work for the company after the Training Committee terminated him from the apprentice program. The district court also denied Morgan’s motion for reconsideration.
In his appeal, Morgan appears to argue that: (1) he was denied due process; (2) the district court erred by denying the motions he filed before the case was dismissed; (3) the district court erred by ruling that Morgan had filed two prior actions; and (4) the defendants colluded to fire him because of his age.
This court reviews de novo a district court’s decision to dismiss a suit pursuant to Fed.R.Civ.P. 12(b)(6). Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir.1998). The court must construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir.1996). Upon review, we conclude that the district court properly dismissed Morgan’s complaint.
First, we agree with the district court that res judicata barred Morgan’s action against the Training Committee. Issues actually litigated in a state court proceeding are entitled to the same preclusive effect in federal court as provided by the law of the state where the judgment was rendered. Donovan v. Thames, 105 F.3d 291, 294 (6th Cir.1997). Under Kentucky law, res judicata, or claim preclusion, may be used to bar entire claims that were brought or should have been brought in a prior action. Id. at 295. Morgan sued the Training Committee in the Jefferson County, Kentucky Circuit Court in May 2001. He alleged that the defendants wrongfully terminated him and violated his rights under the Kentucky Civil Rights Act and the National Labor Relations Act. The Jefferson Circuit Court dismissed the action in August 2001. The Jefferson Circuit Court’s decision met each of the requirements to bar further litigation against the Training Committee: Morgan sued the Training Committee again in this action, the prior case and this action involved identical causes of action, and the Jefferson Circuit Court dismissed the first case on the merits. See City of Louisville v. *112Louisville Profl Firefighters Ass’n, 813 S.W.2d 804, 806 (Ky.1991).
Second, the district court properly held that Morgan did not have an ADEA claim against Standard Electric. An ADEA plaintiff without direct proof of discrimination must establish a prima facie case of discrimination by showing that he was: (1) a member of the protected class; (2) subjected to an adverse employment action; (3) otherwise qualified for the position; and (4) that the position was filled by a younger person. Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir.1996). Morgan was unable to establish a prima facie case against Standard Electric because once the Training Committee terminated him as an apprentice, he was no longer qualified to work as an apprentice for Standard Electric.
Moreover, even if Morgan could establish a prima facie case, he could not show that Standard Electric’s reason for terminating him was a pretext for discrimination. Morgan alleged that long-term Standard Electric employees considered him a good worker and that a company representative told an unemployment hearing officer that the company would have retained Morgan if the Training Committee had not terminated him. Having admitted that Standard Electric had no discriminatory intent when it terminated him, Morgan cannot claim that Standard Electric’s reason for terminating him lacked a basis in fact, did not actually motivate the company’s action, or was insufficient to warrant the action. See Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir.1994).
The district court properly held that res judicata barred Morgan’s claim against the Training Committee, and that Morgan did not have a discrimination claim against Standard Electric. For the foregoing reasons, we affirm the district court’s decision. Rule 34(j)(2)(C), Rules of the Sixth Circuit. All pending motions are denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217265/ | ORDER
Cameron Lee Fitts, a Michigan state prisoner, appeals pro se the final judgment for defendants in a civil rights action he filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the *113Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Seeking declaratory and injunctive relief and millions of dollars in damages, Fitts filed this complaint against a number of employees of the Michigan Department of Corrections, alleging that defendants had violated his First Amendment rights by confiscating religious material, denying him access to the courts and retaliating against him for filing a lawsuit; had violated his Fourteenth Amendment rights during misconduct hearings; and had violated his Eighth Amendment rights by subjecting him to excessive force, denying him medical care, and failing to protect him.
A magistrate judge recommended that the motion to dismiss by a defendant hearing officer be granted on the basis of absolute immunity. Fitts failed to object to this recommendation, which the district court adopted. Defendants’ motion for summary judgment on all but one claim of excessive force was granted on the basis that Fitts had failed to exhaust his administrative remedies. Fitts later filed grievances regarding some of these claims and moved to reinstate them, but the motion was not granted. The district court appointed counsel to represent Fitts at a jury trial on the remaining claim of excessive force against one defendant. A motion for appointment of a medical expert was denied. The remaining defendant was permitted to appear via deposition due to his medical condition. Fitts objected that he should be permitted to appear and assist counsel at the deposition, but his objection was overruled. A jury trial was held, which resulted in judgment for the defendant, and final judgment was entered. Fitts filed a motion for the appointment of counsel for appeal purposes, which was denied.
On appeal, Fitts presents the following issues: 1) the district court should have permitted him to reinstate his exhausted claims; 2) the court erred in denying the motion for appointment of a medical expert; 3) Fitts should have been permitted to be present at the deposition of defendant; 4) the court erred in denying his motion for the appointment of counsel for appeal purposes; 5) the hearing officer was not entitled to absolute immunity because he was not impartial; and 6) he is entitled to a new trial because he knew two of the jurors.
Upon review, we conclude that Fitts has presented no basis for overturning the judgment below. His first argument, that he should have been permitted to reinstate certain claims after exhausting his administrative remedies, is plainly without merit. This court has held that a prisoner may not exhaust administrative remedies during the pendency of a suit. Freeman v. Francis, 196 F.3d 641, 645 (6th Cir.1999). The argument raised by Fitts about the appointment of a medical expert is without support. His brief does not address why an expert was necessary, and he did not order the transcript to be included in the appellate record, so it is not apparent whether the absence of medical testimony was prejudicial to his case. See Turnbull v. Wilcken, 893 F.2d 256, 258 (10th Cir.1990). The argument that Fitts should have been permitted to appear at defendant’s deposition is frivolous. Fitts had counsel appointed to represent him at the deposition. Moreover, the district court’s order noted that dangerous behavior by Fitts was responsible for the denial of his request to appear and assist counsel. Fitts’s argument that the district court should not have allowed the defendant to appear at trial via deposition cannot be considered on appeal because Fitts did not raise this argument in the district court. *114Taft Broadcasting Co. v. United States, 929 F.2d 240, 243-44 (6th Cir.1991).
Fitts also fails to demonstrate how the failure to appoint counsel for appeal purposes constituted an abuse of discretion. See Lavado v. Keohane, 992 F.2d 601, 604-05, 606 (6th Cir.1993). The district court appointed counsel for purposes of the jury trial below. The next claim, that hearing officers in Michigan prisons are not impartial and are therefore not entitled to absolute immunity, has also been previously rejected by this court. Shelly v. Johnson, 849 F.2d 228, 229-30 (6th Cir.1988). Moreover, Fitts failed to object to the magistrate judge’s recommendation on this issue, and has therefore waived appellate review of this claim. Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995). Finally, the argument that Fitts was acquainted with two of the jurors was not raised in the district court, and therefore cannot be considered on appeal. Taft, 929 F.2d at 243-44.
In summary, Fitts has raised no issue which requires reversal of the district court’s rulings. Accordingly, the judgment for defendants is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217266/ | ORDER
Kenneth D. Hill, proceeding pro se, appeals a district court judgment dismissing his civil rights complaint construed to be filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34Q')(1), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In August 2002, Hill filed a rambling and extremely confusing complaint, in which he sued the State of Michigan and the Michigan Attorney General (Granholm). Hill appears to have claimed that the defendants violated his Third, Fourth, Fifth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendment rights by participating in a conspiracy with other state *115agencies and municipalities to engage in criminal conduct and to obstruct justice. He alleged that the defendants engaged in such activities as “illegal payments,” murders, the “fixing of court cases,” and embezzlement. He also appears to have alleged that he was falsely imprisoned and that his family members were harassed because he attempted to expose the defendants’ conduct. Hill did not specify whether he was seeking monetary or equitable relief. Upon review, the district court dismissed the complaint as frivolous. Hill filed a timely appeal, essentially reasserting his claims.
Upon review, we conclude that the district court properly dismissed Hill’s complaint as frivolous. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). A complaint is frivolous where it lacks an arguable basis either in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Hill’s complaint is frivolous on its face. The Eleventh Amendment bars a suit brought in federal court against a state and its departments or agencies unless the state has waived its sovereign immunity or unequivocally consented to be sued. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); MacDonald v. Vill. of Northpoint, Mich., 164 F.3d 964, 970 (6th Cir.1999). The Eleventh Amendment applies regardless of whether the suit seeks injunctive or monetary relief. See Pennhurst, 465 U.S. at 100-01. The state of Michigan has not consented to civil rights suits in the federal courts. See Abick v. Michigan, 803 F.2d 874, 877 (6th Cir.1986). Thus, Hill’s claims against the State of Michigan were properly dismissed.
Moreover, Hill did not indicate in his complaint the capacity in which he sued the Michigan Attorney General. The course of the proceedings in this case also failed to clearly notify the defendants that Hill intended to seek a finding of individual liability. Where a § 1983 plaintiff fails to clearly notify a state official that he intends to seek individual liability, it is presumed that a state official is sued in her official capacity. Moore v. City of Harriman, 272 F.3d 769, 775 (6th Cir.2001) (en banc). A state official is not subject to suit for monetary damages in her official capacity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Hence, Hill’s claims against the Attorney General were properly dismissed to the extent that she was sued in her official capacity for monetary relief. To the extent that Hill sought equitable relief, the claims were still properly dismissed as frivolous. Hill’s vague and eonclusory allegations that the Attorney General participated in a conspiracy to engage in various criminal activities, unsupported by any material factual allegations, are not sufficient to state such a claim under § 1983. See Kensu v. Haigh, 87 F.3d 172, 175-76 (6th Cir.1996); Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir.1987).
Accordingly, we affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217267/ | ORDER
Carlos E. Chavis appeals a district court judgment that dismissed his civil rights complaint filed under 42 U.S.C. § 1983 for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e). This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Chavis filed his complaint in the district court alleging that the defendant state court clerks and assistant court clerks interfered with his constitutional right to access to the courts in matters concerning his second motion to withdraw his 1998 guilty plea to two counts of felonious assault and one count of failure to comply with a police officer’s order. Chavis named defendants in their individual and official capacities and sought declaratory relief and compensatory and punitive damages. The district court dismissed the complaint sua sponte for failure to state a claim upon which relief can be granted. Chavis filed a timely notice of appeal. On appeal, Chavis contends that the district court improperly dismissed his complaint for a variety of reasons: (1) the court did not understand his complaint; (2) the court did not rule on his motions for discovery and for the appointment of counsel; (3) he was denied an opportunity to be heard; (4) the court considered matters outside his complaint; (5) defendants denied him his constitutional rights; (6) he was prejudiced in legal proceedings; (7) he need not allege a complete denial of access to the courts; (8) he is entitled to relief aside from physical injury; (9) interference with his right to access to the courts alone is cognizable; (10) quasi-judicial immunity does not preclude declaratory and injunctive relief; (11) immunity is an affirmative defense; and (12) facts material to a defense of immunity are in dispute. Defendants have not been notified to participate in this appeal.
Upon de novo review, see McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997), we will affirm the judgment for the reasons stated by the district court in its memorandum of opinion and order filed July 10, 2002. First, the district court properly dismissed Chavis’s claims for money damages as to the defendant court employees on the basis of quasi-judicial immunity. See Bush v. Rauch, 38 F.3d 842, 847-48 (6th Cir.1994); Foster v. Walsh, 864 F.2d 416, 418 (6th Cir.1988). Further, the district court correctly eon-*117eluded that Chavis otherwise failed to state a claim upon which relief can be granted. While a First Amendment right to access to the courts clearly exists, see Bounds v. Smith, 480 U.S. 817, 821-24, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), no claim for interference with this right exists unless plaintiff alleges that defendants prevented him from filing a non-frivolous legal claim challenging his conviction. See Lewis v. Casey, 518 U.S. 343, 351-54, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). Plaintiff must allege that he has suffered an actual injury to state a claim. See id. at 349-54. Plaintiff must allege that a non-frivolous claim was lost or rejected, or that the presentation of such a claim is currently being prevented. See id. at 354-56. Here, the district court correctly concluded that Chavis failed to allege the loss of any non-frivolous claim, or that defendants were then preventing him from presenting a non-frivolous claim.
Finally, it is noted that Chavis’s remaining claims on appeal lack merit. Insofar as Chavis contends that the district court dismissed his complaint, Chavis’s claims are meritless because as previously noted 28 U.S.C. § 1915A(a) & (b) required the court to dismiss the complaint as soon as practicable. Chavis’s claim that the district court considered matters outside his complaint lacks merit because the district court merely recited facts plainly gleaned from state court opinions, duly cited by the district court, rendered in Chavis’s eases. Chavis’s claims that immunity should not have been considered lack merit because 28 U.S.C. § 1915A(b)(2) requires the district court to dismiss claims that are barred by immunity. Accordingly, Chavis’s remaining claims lack merit.
For the foregoing reasons, the district court’s judgment is affirmed. See Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217268/ | ORDER
Clifford Bowen, an Ohio state prisoner, appeals pro se the judgment for defendants in a civil rights action he filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
*118Bowen filed this complaint, purportedly on behalf of himself and the class of nonsmoking inmates housed at the same correctional facility, against the governor and attorney general of Ohio, as well as several officials of the Ohio Department of Rehabilitation and Corrections, arguing that he was being exposed to intolerable levels of environmental tobacco smoke (ETS) in violation of the Eighth Amendment. On initial screening, the district court dismissed the complaint as to the governor and the attorney general. The remaining defendants were served, and filed an answer and a motion for judgment on the pleadings. Bowen filed a response, as well as a motion to amend the complaint to add claims of violations of state law and the Fourteenth Amendment. The matter was referred to a magistrate judge, who recommended that the defendants’ motion for judgment on the pleadings be granted and Bowen’s motion to amend the complaint be denied. Over Bowen’s objections, the district court adopted this recommendation and entered judgment for defendants. On appeal, Bowen takes issue with each of the rulings below.
Bowen initially argues that the district court erred in dismissing the governor and the attorney general on initial screening. However, he fails to explain how the district court’s conclusion that these defendants could not be held liable under the theory of respondeat superior was erroneous. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir.1996).
This court reviews a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) under the same de novo standard applied to motions to dismiss under Rule 12(b)(6), ascertaining whether the plaintiff can prove any facts that would entitle him to relief. Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir.1999). Under this standard, the district court properly granted judgment to defendants on Bowen’s Eighth Amendment claim. Bowen concedes that he does not have any current health problems which would require that he be housed in a smoke-free environment. Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir.1992). Moreover, Bowen alleged no facts which would establish that he is being subjected to an unreasonable risk of serious damage to his future health. Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). Bowen concedes that defendants have a no-smoking policy, which, although it may be imperfectly enforced, negates any claim that they are deliberately indifferent, as do their documented responses to Bowen’s grievances on this issue. Id. at 36; Scott v. District of Columbia, 139 F.3d 940, 944 (D.C.Cir.1998).
The district court also properly denied Bowen leave to amend his complaint, because the complaint as amended would not state a claim. Hahn v. Star Bank, 190 F.3d 708, 715-16 (6th Cir.1999). Bowen sought to add claims that defendants were in violation of state law. The district court properly concluded that the Eleventh Amendment barred consideration of such claims, and that jurisdiction over such state law claims properly lies only in the Ohio Court of Claims. Turker v. Ohio Dep’t of Rehab. & Carr., 157 F.3d 453, 457 (6th Cir.1998). Bowen’s argument that Carten v. Kent State Univ., 282 F.3d 391, 395-96 (6th Cir.2002) provides an exception to this rule for claims for injunctive relief against state defendants in their official capacity is misplaced, as Carten found such an exception only for claims of violations of federal law.
Bowen also attempted to raise a claim of a violation of the Fourteenth Amendment. The district court properly held that Bowen had no liberty interest in a smoke-free environment, as the alleged exposure to *119ETS did not amount to an atypical and significant hardship. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Bowen argues that the district court failed to address his claims of violations of his property rights and equal protection rights. However, the district court cannot be faulted for failing to address these eonclusory allegations, where Bowen failed to identify any facts estabhshing a property right or to allege membership in a protected class. Jones v. Union County, Tenn., 296 F.3d 417, 426 (6th Cir.2002).
For all of the above reasons, the judgment for defendants is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217269/ | ORDER
Eric Ousley appeals a district court judgment that revoked his supervised release and sentenced him to eight months of imprisonment. The case has been referred to this panel pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. We unanimously agree that oral argument is not needed. Fed. R.App. P. 34(a).
In this timely appeal, Ousley’s appointed counsel has filed a motion to withdraw and a finely-crafted example of the brief envisioned by the Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Ousley was notified of counsel’s motion to withdraw, but he has filed no response.
The motion to withdraw will be granted as it reflects that counsel has reviewed the entire record and proceedings and has submitted the following issues for review: whether Ousley entered a valid admission to violating the conditions of his supervised release and whether the district court abused its discretion in sentencing Ousley. Counsel states these issues but concedes that they lack merit.
As an initial matter, the district court did not err by revoking Ousley’s release. In October 2002, Ousley confessed that he violated the conditions of his supervised release by: being convicted of theft in Ohio state court, failing drug tests, failing to participate in substance-abuse treatment, failing to make restitution payments, and failing to report to his probation officer.
The court ordered that the eight-month sentence run consecutive to the eight-month sentence Ousley received for his theft conviction. We review a district court’s sentence upon revocation of supervised release for an abuse of discretion. United States v. Washington, 147 F.3d 490, 491 (6th Cir.1998). The policy state-*120merits concerning the imposition of a sentence following the revocation of supervised release are merely advisory and do not bind the sentencing court. Id.
In the absence of mandatory guidelines, the sentence imposed must show consideration of any relevant statutory factors and may not be plainly unreasonable. 18 U.S.C. §§ 3553, 3583(e) & 3742(a)(4); Washington, 147 F.3d at 491; United States v. Webb, 30 F.3d 687, 689 (6th Cir.1994). The relevant factors in 18 U.S.C. § 3553 include: (1) the need to deter criminal conduct, to protect the public, and to provide the defendant with appropriate treatment; (2) the nature of the offense; (3) any guideline range for sentencing; (4) guideline policy statements; and (5) avoidance of unwarranted disparities. The sentencing court need not recite any “magic words” explaining whether and how it considered the policy statements contained in the Sentencing Guidelines or how it weighed the factors set out in 18 U.S.C. § 3553. United States v. McClellan, 164 F.3d 308, 310 (6th Cir.1999). All that is required is a general statement of the district court’s reasons sufficient to permit an informed appellate review. Id.
The district court did not abuse its discretion. It is obvious from the record that the court fashioned the eight-month consecutive sentence while mindful of the relevant factors. The sentence was not plainly unreasonable under the circumstances.
Accordingly, we grant counsel’s motion to withdraw and affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224300/ | ORDER GRANTING MOTION TO DISMISS
ROGER T. BENITEZ, District Judge.
Before this Court is a Motion to Dismiss filed by Defendants Maxwell Technologies, Inc. (Maxwell), David J. Schramm, and Kevin S. Royal. (Docket No. 50). For the reasons stated below, the Motion is GRANTED.
BACKGROUND
Maxwell Technologies is a Delaware corporation based in San Diego, CA. Maxwell develops, manufactures, and markets energy storage and power delivery products, with a primary focus on ultracapacitors. Schramm served as CEO and President of Maxwell from July 2007 to December 31, 2013, and reached an agreement to serve as an advisor for two additional years. Royal has been the Senior Vice President, CFO, Treasurer, and Secretary of Maxwell since April 2001.
On March 7, 2013, Maxwell announced that it was restating its financial statements for 2011 and the first three quarters of 2012. Maxwell’s sales organization made secret arrangements with certain distributors for special payment terms. The distributors would not have to pay Maxwell until the distributor was paid by the customers. Under Maxwell’s revenue recognition policy, revenue is only to be recognized where certain conditions are met, including that the collectability of the revenue is “reasonably assured.” (Compl. ¶¶ 29, 134-35). However, Maxwell recognized the revenue from these sales too early, causing the financial statements to overstate revenue. The inaccurate revenue numbers had been included in a number of SEC filings signed by Schramm and Royal. These filings assert that GAAP principles are used and that the financial statements “present fairly the financial position, results of operations, and cash flows” of Maxwell. (Id. ¶ 118). Schramm and Royal also spoke on a number of conference calls about Maxwell and its financial performance.
On April 26, 2012, Maxwell announced disappointing financial results for the first quarter of 2012. (Id. ¶¶ 10, 85). A one-day drop of $6.20 per share, from $15.80 per share to $9.60 per share, followed. (¶¶ 10, 86, 162). On March 7, 2013, Maxwell announced that there had been errors in past restatements, that it was required to restate results for 2011 and the first *1029three quarters of 2012. (Id. ¶ 11). It also stated that it had to delay its annual report, that there were problems with internal controls and its credit agreement, and announced terminations and resignations of some Maxwell executives. (Id.) The next day, shares fell $1.01. (Id.) On March 19, 2013, Maxwell announced that McGladrey LLP had resigned as the independent accounting firm because it could not rely on management’s representations and continuing internal control deficiencies. (Id. ¶¶ 4, 13, 90). The stock price fell the next day. (Id. ¶ 911). Plaintiff contends that, overall, the stock price dropped more than 70% from the class period high of $21.20 per share. (Id.) On April 30, 2013, Maxwell disclosed that the DOJ and SEC had begun investigations.
Maxwell published the restated financial statements on August 1, 2013. In total, Maxwell states that $10.1 million in revenue had been recognized prematurely in 2011, and $9.2 million had been recognized prematurely in 2012. (Id. ¶ 154). Maxwell asserts that there were no phony transactions and that, with insignificant exceptions, Maxwell has been paid for all of the problematic sales transactions subject to the restatement. (Mot. at 5; Def. Ex. A at 112).
Maxwell’s audit committee conducted an investigation using outside counsel and forensic accountants. Certain Maxwell employees were terminated, and Senior Vice-President of Sales and Marketing Van Andrews resigned. While the investigation was ongoing, Maxwell’s accountants, McGladrey LLP, resigned. McGla-drey stated that they had decided not to accept representations from the current management and that Maxwell lacked sufficient internal controls over revenue recognition. Maxwell hired new accountants, who accepted representations from current management, including both individual defendants. Investigations have been commenced by the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ).
In the wake of the restatements, several lawsuits were filed against Maxwell and the individual defendants on behalf of persons or entities that purchased Maxwell stock. On October 24, 2013, this Court consolidated four actions, and appointed The Employees’ Pension Plan of the City of Clearwater as Lead Plaintiff (“Plaintiff’). (Docket No. 44). Plaintiff filed a Consolidated Complaint (Compl.) on January 17, 2014. (Docket No. 49). The Complaint, filed on behalf of persons or entities who purchased Maxwell stock between April 29, 2011 and March 19, 2013 (the “Class Period”), asserts two causes of action: (1) violation of Section 10(b) of the Securities and Exchange Act of 1934 (Exchange Act), and (2) violation of Section 20(a) of the Exchange Act. Plaintiff claims that Defendants made false statements about Maxwell’s financial condition and internal controls, and that Schramm and Royal knew of or participated in the secret side arrangements with distributors.
*1030On February 20, 2014, Defendants filed a Motion to Dismiss the Complaint on the grounds that Plaintiff failed to sufficiently allege scienter and that loss causation fails as to the April 26, 2012 announcement. (Docket No. 50).
LEGAL STANDARDS
Section 10(b) of the Exchange Act makes it unlawful to:
use or employ, in connection with the purchase or sale of an security registered on a national securities exchange or any security not so registered ... any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors.
15 U.S.C. § 78j(b). Pursuant to that section, the SEC promulgated Rule 10b-5, which makes it unlawful, in relevant part, to “make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstance under which they were made, not misleading.” 17 C.F.R. § 240.10b-5(b). Section 20(a) of the Exchange Act, 15 U.S.C. § 78t(a), states that a person who:
directly or indirectly, controls an person liable under any provision of this chapter or of any rule or regulation thereunder shall also be hable jointly and severally with and to the same extent as such controlled person to any person to whom such a controlled person is liable ... unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.
Section 20(a) claims may be dismissed summarily if the plaintiff fails to adequately plead a primary violation of section 10(b). Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 990 (9th Cir.2009) (citations omitted).
To state a securities fraud claim, a plaintiff must plead (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase and sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. Matrixx Init. Inc. v. Siracusano, — U.S. -, 131 S.Ct. 1309, 1317, 179 L.Ed.2d 398 (2011); Reese v. Malone, 747 F.3d 557, 567-68 (9th Cir.2014) (citations omitted). Scienter is “a mental state embracing intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n. 12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976).
In ruling on a motion to dismiss in a securities fraud class action, the court assumes all factual allegations to be true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). A court considers the complaint in its entirety, as well as other sources courts ordinary examine when ruling on Rule 12(b)(6) motions to dismiss, such as documents incorporated into the complaint by reference and matters of which a court may take judicial notice. Id.
At the pleading stage, a complaint stating claims under section 10(b) and Rule 10b-5 must satisfy the dual pleading requirements of Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act of 1995 (PSLRA). Rule 9(b) requires a party to “state with particularity” the circumstances constituting fraud or mistake, but allows conditions of a person’s mind to be alleged generally. However, the PSLRA applies special requirements to private actions for securities fraud. Where a plaintiff may only recover money damages on proof that a defendant *1031acted with a particular state of mind, the complaint must, as to each alleged act or omission, “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2)(A).
The Ninth Circuit has held that in a securities fraud action, plaintiffs must show that defendants engaged in “knowing” or “intentional conduct.” South Ferry LP, No. 2 v. Killinger, 542 F.3d 776, 782 (9th Cir.2008) (citing In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 975 (9th Cir.1999)). Reckless conduct can meet the standard to the extent it “reflects some degree of intentional or conscious misconduct,” or what has been termed “deliberate recklessness.” Id. (citing Silicon Graphics, 183 F.3d at 977). In pleading deliberate recklessness, the plaintiff must plead a “highly unreasonable omission, involving not merely simple, or even inexcusable negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers or sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.” Zucco, 552 F.3d at 991 (quoting Silicon Graphics, 183 F.3d at 976). Facts showing “mere recklessness,” or motive and opportunity to commit fraud, provide some reasonable inference of intent, but are not independently sufficient. Reese v. Malone, 747 F.3d at 569-70 (citing Silicon Graphics, 183 F.3d at 974).
The strong inference is required to be “cogent and compelling, thus strong in light of other explanations.” Tellabs, 551 U.S. at 324, 127 S.Ct. 2499. The inquiry is “inherently comparative” and requires that a court consider plausible, non-eulpable explanations for the defendant’s conduct, as well as inferences favoring the plaintiff. Id. Although the inference that a defendant acted with scienter need not be irrefutable or the “most plausible” of competing inferences, it must be more that merely “reasonable” or “permissible.” Id. A complaint will survive “only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Id. The relevant inquiry is “whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.” Id. at 323, 127 S.Ct. 2499 (emphasis in original). In reviewing the sufficiency of scienter allegations after Tellabs, the Ninth Circuit has conducted a dual inquiry in which it first determines if any allegation, standing alone is sufficient to create a strong inference of scienter. Zucco, 552 F.3d at 992. If not, it examines the complaint holistically to determine if the insufficient allegations combine to create a strong inference of intentional conduct or deliberate recklessness. Id.
DISCUSSION
Defendants argue that Plaintiff has failed to sufficiently allege scienter. They argue that the Complaint does not allege facts giving rise to the “strong inference” that Schramm or Royal were involved in or knew of the secret side arrangements which caused the restatement. (Mot. at 2).
Plaintiff points to a number of different allegations which it contends are sufficient to raise a strong inference of scienter, when viewed holistically. Plaintiff points to the statements of five confidential witnesses included in the complaint. It also points to a variety of other facts, such as the “noisy” resignation of Maxwell’s auditor, the individual defendants’ performance-based compensation, government investigations, the individual defendant’s role in the corporate structure, and alleged *1032involvement in relevant transactions. Defendants dispute that such allegations give rise to a strong inference, and point to other facts which they contend undermine a strong inference of scienter.
This Court individually examined the various allegations raised to determine if they are sufficient to create a strong inference of scienter. As none are individually sufficient, the Court examined them holistically to determine if they create a strong inference of scienter when viewed in combination. As this Court determines that a strong inference of scienter is not created, it will not proceed to unnecessarily consider loss causation.
A. Corporate Scienter
Plaintiff argues that corporate scienter is satisfied because defendants Schramm and Royal, as well as non-defendant Andrews, were senior-level executives responsible for Maxwell’s core operations and acted with the requisite scienter. (Opp’n at 10). Plaintiff argues that Maxwell’s corporate scienter is “beyond reasonable dispute” because it admitted that Andrews left the company “as a result” of the investigation into wrongdoing. (Opp’n at 4). Plaintiff contends that the scienter of Andrews, Schramm, and Royal can be imputed to Maxwell, and that Maxwell is liable for the securities fraud of its “controlling employees.” (Id.)
Defendants do not appear to dispute that the scienter of named individual defendants Schramm or Royal can be imputed to Maxwell, but argues that non-defendant Andrews’ scienter cannot be so imputed. Defendants argue that the effort to attribute the knowledge of an employee to the company is an attempt to use a “collective scienter” theory which is not the law in this Circuit. (Reply at 1). Defendants cite to Glazer Capital Mgmt., LP v. Magistri, 549 F.3d 786, 744-45 (9th Cir.2008), in which the Ninth Circuit noted a circuit split on the issue, and stated that its precedent did not foreclose the possibility that collective scienter might be appropriate in some circumstances. However, the Ninth Circuit in Glazer required that a plaintiff who rested his claim on three statements in a legal document plead scienter as to the individuals who actually made the false statements in the merger agreement. Id. at 745. The Ninth Circuit did not lay out a test for determining when individual scienter might not be required, but stated that it reached its conclusion based on the “nature and unique context of the alleged misstatements in this case.” Id.
This Court has examined the arguments raised by Plaintiff, and has determined that Plaintiff has not demonstrated that collective scienter is applicable here. As in Glazer, this Court looks at the nature and context of the misstatements. Plaintiffs claims are based upon statements by the individual defendants and in official filings signed by the individual defendants. It is thus necessary to require scienter as to the individuals who were responsible for the statements. This is not a situation in which the fact that Andrews or another employee may have had the requisite knowledge indicated that the individual defendants who made or authorized statements knew they were false when they were made. The fact that Andrews, a non-defendant, allegedly had knowledge of misconduct does not indicate that any statements were made with the necessary mental state.
The Court has examined the cases cited by Plaintiff. Although the case law supports holding a corporation responsible for the actions of its executives, Plaintiff does not cite cases that support corporate scien-ter based only upon the scienter of a non-defendant who did not make or certify the *1033statements at issue. Thus, although this Court agrees with Plaintiff that corporate scienter is alleged if it is sufficiently alleged that Schramm or Royal had the necessary mental state, corporate scienter is not sufficiently alleged under these circumstances where one executive had the knowledge and other, perhaps-innocent executives made the statements.
B. Plaintiffs Arguments for Individual Scienter
Plaintiffs briefing points to numerous allegations which it contends support a strong inference that Schramm and Royal had the necessary mental state.
i Confidential Witnesses
The principal argument set forth by Plaintiff is that a strong inference of scien-ter arises from the statements made by five confidential witnesses who are described and quoted in the ■ Complaint. Plaintiff contends that these statements support the claim that Schramm and Royal engaged in, or knew about, the side deals and improperly realized revenue. Defendants raise numerous challenges to the statements.
A complaint relying upon statements from confidential witnesses must pass two hurdles to satisfy the PSLRA pleading requirements. Zucco, 552 F.3d at 995. First, the confidential witnesses must be “described with sufficient particularity to establish their reliability and personal knowledge.” Id. (citing In re Daou Systems, Inc., 411 F.3d 1006, 1015-16 (9th Cir.2005)). Second, the statements themselves must be “indicative of scienter.” Id. (citing Daou, 411 F.3d at 1022).
a. Confidential Witness # 1
Confidential Witness # 1 (CW1) was Maxwell’s Vice President of Business Development from January 2006 to March 2013. (Compl. ¶ 52 n. 16). CW1 initially reported to Schramm, and after 2010 reported to Andrews and Schramm. (Id.) CW1 was fired for purported involvement in the accounting scheme. (Id.) CW1 reports that “things definitely changed” after Andrews arrived and that she3 was taken “out of the loop” on many of the issues in the restatement. (Id. ¶ 52).
CW1 reports that she was involved in a shipment of product that was not going to be accepted by the end user. (Id. ¶ 61). She reports that Andrews directed her to speak with Alfatec, the company’s German distributor, and have the shipment delivered to Alfatec. (Id.) CW1 stated that Alfatec knew Maxwell wanted Alfatec to take and store the product, but that Alfa-tec would not pay for the product at the time. (Id.) CW1 stated that this arrangement might not be a problem if it had been properly accounted for by Maxwell. (Id. ¶ 62). The Complaint says that CW1 reported questioning Andrews about changing the terms of the shipment, and Andrews told her that it was “OK’d by David,” presumably referring to Schramm. (Id.) CW1 also states that Andrews was warned by Schramm that he would be fired and allowed to resign, but does not state how she knew Andrews was warned. (Id. ¶ 81).
Defendants raise a number of arguments regarding CW1. First, they point out that CW1 and CW4 are both former, disgruntled employees. , Plaintiff argues that this goes to the witnesses credibility, and it is not appropriate for this Court to *1034determine credibility issues at this stage. This Court agrees with Plaintiff. The Court will examine the witnesses for indi-cia of reliability and personal knowledge, but it •will not ignore detailed and otherwise rehable allegations simply because the witness might have a motive to lie. See In re Gilead Scis. Sec. Litig., No. C 08-4999, 2009 WL 3320492, at *2 (N.D.Cal. Oct. 13, 2009).
Second, Defendants argue that the confidential witnesses offer sweeping generalizations, not specific facts. Plaintiffs description of the confidential witness accounts raises serious problems. In reviewing the Complaint’s characterization of their statements, it is often unclear what the witness actually said, what the Plaintiff has inferred, and what is commentary by the Plaintiff. To the extent that certain ideas were expressed by the witness, their basis is often unclear. In particular, this Court cannot determine from the Complaint whether any of the confidential witnesses had any reason to believe the individual defendants knew there were improprieties.
In the case of CWI, for instance, the Complaint reports that CWI stated that the arrangements might not have been problematic if reported, then states that “However, the Individual Defendants made sure this was not the case in order to boost Maxwell’s sales figures.” (Compl. ¶ 62) The Complaint does not indicate whether CWI said this or it is Plaintiffs commentary. If CWI did say this, it does not explain the basis for the statement. For instance, the Complaint does not report any statements made by the individual defendants that suggest that they knew the sales were not properly reported to accounting, much less why they did so. The Complaint also states that CWI confirmed that the secret change was ordered by Andrews and Schramm, and the Opposition indicates that CWI stated that Schramm ordered secret alteration of terms and Andrews carried them out. (Id.; Opp’n at 16). However, the Complaint does not indicate what, if anything, CWI said to indicate that she concluded that Andrews or Schramm knew it was secret, on what basis she reached that conclusion, or whether either man actually ordered her to do it without telling anyone. This Court therefore cannot tell whether this statement is CWl’s characterization of events or merely Plaintiffs interpretation of the fact that CWI was told to change the payment terms. There is also no basis from which this Court could conclude that CWI had personal knowledge of the fact that Andrews was warned in advance of the terminations.
It appears that CWI was in a position to know about the existence of unreported side arrangements, and might have plausibly learned whether the individual defendants were aware of the sales arrangements and how they were reported to accounting. However, in order for the statement of CWI to support scienter, Plaintiff must give this Court a sufficiently clear indication of what CWI actually said and the basis for that statement. With respect to much of the description of CWl’s statement, this Court cannot determine which allegations and comments were made by CWI. To the extent it is clear Plaintiff is relating the statement of CWI, Plaintiff has frequently failed to establish reliability and personal knowledge. Those statements for which reliability and personal knowledge have been established are not sufficiently indicative of scienter. Although Plaintiffs characterization suggests that CWI may possess evidence of scienter, Plaintiff has not communicated that evidence in a way that allows this Court to infer scienter.
*1035b. Confidential Witness # 2
Confidential Witness #2 (CW2) was Maxwell’s Sales Operations Manager from February 2008 to May 2011. (Compl. ¶ 53 n. 17). CW2 was responsible for sales reporting and client contracts, including the preparation of sales reports and attendance at weekly sales meetings. (Id.) These reports included information about outstanding sales, received orders, unfulfilled sales, and invoiced orders. (Id.) The Complaint alleges that CW2 characterized the environment at Maxwell as becoming more secretive and restrictive after Andrews arrived. (Id. ¶ 53). CW2 is reported as stating that she did not trust Andrews and that he was a typical sales person who “pushed to get stuff done” at the end of quarters. (Id.) CW2 stated that she was “not surprised” by the need for the restatement. (Id.) CW2 reports that Andrews excluded her from weekly sales meetings after he arrived, but that she still sent reports to Andrews. (Id. ¶ 63). CW2 is quoted as saying she was “sure at the time” that there were orders being reported as booked when that was not actually the case. (Id.) CW2 also stated that Andrews addressed issues or discrepancies with the terms of the transaction. (Id.)
The account of CW2 does not support a strong inference of scienter. There is no indication in the statement that Schramm or Royal were aware of the side deals, or the fact that the deals were not reported. Indeed, it is not clear that CW2 actually knew anything about the scheme while at Maxwell, much less who was involved. Defendants also correctly point out that CW2 was not working at Maxwell for much of the Class Period. These statements provide little support to infer scien-ter.
c. Confidential Witness # 3
Confidential Witness # 3 (CW3) was Maxwell’s Senior Sales Operations Administrator from September 2011 through June 2012. (Compl. ¶ 64 n. 19). CW3 was responsible for entering and processing orders, as well as for overseeing the implementation of a customer relationship system. (Id.) CW3 participated in weekly Accounts Receivable meetings. (Id.) CW3 reported to Andrews and Tara Whiteside, the Business Planning & Sales Operations Manager. (Id.) The Complaint reports that CW3 talks about the fact that it was “always a scramble” to process Alfatec orders and put the products “on a boat” to count the orders during the reporting period. (Id. ¶ 64) The Complaint states that “CW3 understood that this was being done so that these orders could be booked as revenue in the quarter about to end even though the Individual Defendants knew this wasn’t the case ...” (Id.) CW3 stated that Schramm, Royal, and Andrews received flash reports that set forth expected sales, which were “always inflated” because of the sales quota. (Id. ¶ 65). CW3 is quoted as saying the “integrity of the orders came into question.” (Id.)
The Complaint recounts CW3’s description of events involving Maxwell distributor Pana-Pacific. (Id. ¶ 66). CW3 reported that she entered terms for the orders based on purchase orders and invoices, but that the terms were not the same as the terms Andrews verbally extended to Pana-Pacific. (Id.) CW3 stated that Pana-Pacific’s accounts receivable became past-due and that she raised this issue in the Accounts Receivable meetings, which included Andrews and “on occasion Defendant Royal.” (Id. ¶ 67). CW3 says that Whiteside told her that Andrews had a verbal agreement with Pana-Pacific to extend the payment terms. (Id.) CW3 stated that- extending such terms required Royal’s approval, and the Complaint states that “the CFO should have been involved.” (Id.)
*1036CW3 also discussed Maxwell’s policy on credit holds. (Id. ¶ 68). She stated that additional orders could only be shipped if one of the individual defendants, usually Royal, released the hold. (Id.) The hold was released on Pana-Pacific despite unpaid receivables. (Id.) CW3 states that Whiteside told her that she should not try to collect from Pana-Pacific because Andrews was “handling it,” and that she should not talk to Andrews about Pana-Pacific. (Id. ¶ 69). CW8 states she expressed concerns to Whiteside. (Id.) CW3 did. state that she felt it was “very weird” to be directed to remain silent about the situation. (Id. ¶ 70).
CW3’s account cannot support a strong inference of scienter. Although the Complaint’s discussion of CW3 states that the individual defendants knew that revenue was being improperly booked, it is unclear whether CW3 ever says this, or if CW3 has any basis to say this. Although the Complaint indicates that CW3 was told to remain silent, this allegation is too ambiguous to help infer scienter. This Court cannot tell if the Complaint was referencing Whiteside’s instructions or one of the individual defendants told her not to talk about the side deals. None of the allegations provide specific facts from which this Court could infer that the individual defendants knew that side deals were not being communicated to the accounting department. At most, it indicates that one or both individual defendants were aware of collection problems and authorized credit hold decisions that allowed additional products to be shipped and improperly booked. It is not, however, clear from the Complaint that Maxwell policy was followed and that either individual defendant actually authorized special terms or lifting credit holds. Plaintiff argues that CW3’s testimony “fatally undermines any claim that Royal and Maxwell were unaware of Pana-Pacific’s undisclosed extended payment terms.” (Opp’n at 15). The Court agrees that it is somewhat undermined. However, even if Schramm and Royal knew about the side deals, this does not indicate that they knew that revenue was improperly booked. Plaintiff also points out that CW3’s account of end-of-period activity was corroborated and that other CWs had suspicions about the revenue being booked. (Id. at 16). However, Plaintiff has not explained how an active sales department and the suspicions of third parties indicates that the individual defendants knew about the improper accounting.
d. Confidential Witness # J
Confidential Witness #4 (CW4) was Maxwell’s Senior Director of Global Sales and Marketing from August 2012 to March 2013. (Compl. ¶ 71 n. 20). CW4 also worked at Maxwell from February 2008 to July 2010 as Director of Sales and Marketing for the Americas. (Id.) From 2012, CW4 was responsible for sales strategy and managing customer relationships, and reported to Schramm and Andrews. (Id.) CW4 was fired for purportedly having a role in the events leading to the restatement. (Id.) CW4 made statements pertaining to both Maxwell business practices, and conversations overheard during carpool rides.
First, the Complaint alleges that CW4 states that the illicit business practices were used with clients worldwide. (Id. ¶ 71). CW4 provides details on the kinds of arrangements that were made. (Id. ¶ 72). CW4 stated that Royal approved extended payment terms, and that only Schramm and Royal could lift a credit hold. (Id.)
Although these statements allow an inference that the actions of one or both defendants was necessary to carry out the misconduct, it alone does not establish *1037scienter on the part of Schramm or Royal. The fact that the individual defendants made or should have made decisions on payment terms or credit holds does not indicate that they knew that the effects of those decisions were not properly reported to accounting.
Second, CW4 makes claims based on the fact that she “often” joined Schramm and Andrews in their carpools. The Complaint states that she heard “off the record conversations” which Plaintiff alleges “included these problematic business practices.” (Id. ¶ 82). The Complaint states that CW4 recalled Schramm telling Andrews to “take certain actions necessary to ‘make the numbers,’ and that Schramm boasted that he had ‘a clean bill of health’ regarding his participation in these practices.” (Id.) CW4 states that she has a lot of information and can put “a nail in the coffin” of Schramm and Royal. (Id.) CW4 claimed that Schramm and Royal were “spearheading” the fraudulent transactions and were responsible for the matters that were restated. (Id. ¶ 83). She allegedly claims that they “knew everything” and were “guiding it.” (Id.) She states that she was “told what to do” by the individual defendants and that the individual defendants knew what was going on. (Id.)
The Court has very carefully examined these allegations. These statements certainly indicate that CW4 may have heard or seen something from which this Court could infer scienter. However, as with the other confidential witnesses, it is not always clear what CW4 actually said. Additionally, this Court cannot actually determine what CW4 claims to have heard. Many of the statements about the role of Schramm and Royal are conclusory and without foundation. It is not clear from the pleadings, or from the briefing, whether the carpool conversations acknowledged that revenue was improperly recognized, or if the discussion of problematic business practices meant only that Schramm indicated knowledge of the special sales terms. Although CW4 believes CW4 has damaging evidence, Plaintiff has not shared any specific facts from which this Court can conclude that CW4 possesses facts giving rise to scienter.
e. Confidential Witness # 5
Confidential Witness # 5 (CW5) was Maxwell’s Director of Sales and Marketing from June 2010 to October 2012. (Compl. ¶ 73 n. 21). She was responsible for sales to both customers and distributors. (Id.) In her final months, CW5 participated in weekly Days Sales Outstanding meetings with Royal and other executives where they discussed accounts receivables. (Id.) She reported to and interacted with Schramm and Royal. (Id.)
According to the Complaint, CW5 discussed the Alfatec arrangements, including the fact that Alfatec was brought in to serve as a buffer and hold inventory. (Id. ¶ 73). CW5 stated that although later deals and purchase orders usually matched the original contract, purchase orders for the transactions in the restatement would not have included the additional terms and concessions. (Id. ¶ 74) She stated that the need to restate revenue was “not a surprise” given the clients’ failure to send payment. (Id.) CW5 also reports that an analyst had asked Schramm why the accounts receivables had grown three-fold, but the sales only grew by a factor of 1.2. (Id. ¶ 75). The Complaint characterizes CW5’s statement as saying that this analyst was not satisfied with Schramm’s answer, that the “analyst published that Schramm’s explanations did not make sense” and that the analyst made efforts to get to bottom of the issue. (Id.) CW5 states that the individual defendants began a weekly meeting in May 2012 regarding past-due accounts, which CW5 attributed *1038to the analyst’s inquiry. (Id. ¶ 76). Royal directed this meeting, which would discuss accounts where special payment terms had been extended. {Id.) From this, the Complaint concludes that the individual defendants “were pushing to present financial results that were in line with the Company’s representations to Wall Street.” {Id.).
CW6 also states that while some people at the company blamed lower executives, other people at Maxwell knew that this was not the case. {Id. ¶ 79). CW5 said the Defendants needed to produce numbers in order to appear to be a growth stock company. (Id.). GW5 also stated that Andrews, Royal, and Schramm were close friends and that Schramm and Andrews lived in the same community, went to the same country club, and carpooled every day. (Id. ¶ 81).
It is unclear from Plaintiffs characterization of CW5’s statement whether CW5 actually possesses any knowledge from which this Court could conclude there is a strong inference of scienter. The Complaint does indicate that Royal would have been aware of an issue with past-due accounts. However, none of the statements indicate that CW5 heard either individual defendant say anything or knew that the individual defendants heard something that indicates that they knew there was a revenue recognition problem. It is entirely possible from the description that CW5 might have such facts, but Plaintiff must present them clearly; this Court cannot speculate on what CW5 might have meant. The Complaint also fails to indicate if CW6 actually knows what, if anything, the analyst told Schramm. The Complaint’s characterization of her statement as saying the analyst “published” that Schramm’s explanations did not make sense suggests that CW5 was not present and is relying on hearsay from the unnamed analyst. Although hearsay can be considered, it can indicate that a witnesses’ report is “not sufficiently reliable, plausible, or coherent to warrant further consideration under Daou.” Zucco, 552 F.3d at 997 n. 4. Here, the fact that CW5 may not have been present undermines this Court’s ability to draw significance from her report that an unnamed individual presented unknown facts to Schramm and got a response that did not satisfy him or her. CW5’s allegations that the individual defendants and Andrews were friends and shared a social circle do not mean that the individual defendants knew of wrongdoing. It is, however, consistent with the theory that Andrews was working with Royal and Schramm on the scheme and that all three knew about the improperly recognized revenue.
f. Conclusion
The confidential witness accounts do not indicate that the individual defendants were aware of the recognition problem. The parties are not disputing whether there were accounting improprieties, or the fact that side arrangements were extended. The confidential witness testimony offered by Plaintiff supports an inference that the individual defendants knew that there were some problems with collections, and were aware of special payment terms and credit hold decisions. However, Plaintiff has not indicated that there was anything inherently wrong with extending payment terms or making a special sales arrangement. Such arrangements are a problem when they are not properly taken into account at the accounting stage. The question is thus whether Schramm and Royal knew that the special sales terms were not being properly taken into account in the financial statements. If the confidential witnesses possess any information on this subject, it was not laid out with *1039sufficient clarity for this Court to infer scienter.
To the extent Plaintiff is arguing that the level of the individual defendant’s involvement in payment terms and meetings indicates that they must have known there was a problem with the revenue numbers, Plaintiff needs to explain why this is so. The Court cannot speculate.
Review of Plaintiffs pleading and the characterizations of the CW statements in Plaintiffs Opposition indicates that Plaintiff may be able to make a stronger case if the Complaint is amended to more clearly and completely explain what the CWs know and have said. To the extent the CWs actually heard or saw something that indicated that the individual defendants knew the terms were secret or that sales were improperly booked, Plaintiff should clearly lay these facts out. Plaintiff should avoid characterizing the testimony in a manner that makes it difficult for this Court to differentiate between witness statements and Plaintiffs own conclusions.
ii. Andrews
Plaintiff alleges that Andrews was the “third in command” who reported directly to Schramm and Royal. (Compl. ¶ 51). Plaintiff claims that the culture of Maxwell changed dramatically, “becoming more secretive and isolationist.” (Id.) It also points to the fact that Maxwell’s financial results increased nearly immediately after Andrews was hired. (Id. ¶ 54). The confidential witness accounts indicate that Andrews had strong personal relationships with the individual defendants, and was actively involved in extending special sales terms and handling past-due accounts. Such allegations may support claims of misconduct by Andrews, but they do not establish that Royal or Schramm were involved. The personal relationship between Andrews and the individual defendants is consistent with their cooperation in a revenue scheme, but the existence of a warm relationship does not indicate that Schramm and Royal knew what Andrews was doing or that they knew that special sales terms were not properly considered in Maxwell’s accounting.
in. Auditor’s Resignation
Plaintiff argues that the “noisy” resignation of Maxwell’s auditor supports a strong inference of scienter. Plaintiff points to the fact that McGladrey LLP resigned in part because it could not rely on representations from current management and certain third parties. (Opp’n at 18). Plaintiff argues that this is consistent with allegations that Defendants colluded with third parties to improperly recognize revenue through undisclosed arrangements. (Id.) Plaintiff emphasizes that Maxwell disclosed the reasons for the resignation, even though such a disclosure is not generally required. Defendants dispute this. (Reply at 8 (citing 17 C.F.R. § 229.304(a)(l)(v))). Defendants also argue that if McGladrey LLP believed that the CEO and CFO had engaged in fraud, it would have been required to report this fact to the SEC. (Id. at 8-9). Defendants point out that a new auditor relied on management’s representations. Plaintiff argues that this only points to an “economic opportunity” for the new auditor, and is not an implicit blessing of management’s integrity. (Opp’n at 18).
Based on the information alleged, this Court cannot find that the resignation alone gives rise to a strong inference of scienter. One auditor was willing to trust the representations, and one was not. This Court has no information that allows it to draw stronger inferences from one more than the other. An independent auditor’s resignation because it feels it cannot rely on management’s representations may, under certain circumstances, support *1040an inference that the company was misrepresenting or concealing its financial health. In re Am. Apparel, Inc. Shareholder Litig., 855 F.Supp.2d 1043, 1083 (C.D.Cal.2012). However, such a recognition by itself does not demonstrate that management acted intentionally or recklessly, rather than acting incompetently, in ignorance, or based on a mistake. See id. at 1084. This Court does not know why McGladrey concluded that it could not rely on the statements of management. There is no indication that McGladrey believed either individual defendant was engaged in the misconduct, and no evidence was presented to suggest that McGladrey had any information about what Schramm or Royal knew about the misconduct. Without additional explanation about the reasons for resigning and the basis for their mistrust, the resignation alone does not indicate that the individual defendants had scienter. However, the fact that McGladrey felt it could not trust the representations of management does indicate that the auditors had doubts about the individual defendants’ willingness to be truthful or forthcoming with respect to the misconduct. The Court considers the resignation in the holistic analysis.
iv. False Certifications, GAAP Violations, and the Need to Restate
Plaintiff points to the false SOX certifications and “numerous admitted GAAP violations” as contributing to a strong inference of scienter. (Opp’n at 19). It emphasizes the importance of the inflated earnings, and claims that if they actually had designed and evaluated internal controls over financial reporting as they stated in the certifications, the “substantially inflated financial results and GAAP violations could not have escaped notice.” (Id. at 19-20).
Plaintiff also contends that the admissions made during the restatement provide strong support for inferring scienter. Plaintiff points to the fact that Maxwell restated nearly two years of financial results and admitted that there was deliberate accounting misconduct. Plaintiff cites to Backe v. Novatel Wireless, Inc., 607 F.Supp.2d 1145, 1161-63 (S.D.Cal.2009), on reconsideration, 642 F.Supp.2d 1169, 1186 (S.D.Cal.2009), in which a district court found scienter based in part upon early product shipment, GAAP violations, and the simplicity of the accounting principles involved.
Defendants contend that the circumstances of the restatement do not give rise to a strong inference of scienter. (Mot. at 11). They emphasize that merely restating financial statements or failing to follow GAAP is insufficient, without more, to establish scienter. (Id. (citing DSAM Global Value Fund v. Altris Software, Inc., 288 F.3d 385, 390 (9th Cir.2002))). Defendants argue that a financial restatement can suggest that internal controls were ineffective, but that this is not enough to demonstrate that a CEO or CFO acted with scienter.
The Court agrees with Defendants that these facts alone do not give rise to a strong inference of scienter. GAAP violations and false certifications can take place where there is no scienter. However, Plaintiff appears to argue in the briefing that, given the nature of the violation, Defendants could not have missed the violations if they evaluated the internal controls as they claimed. Although the large amount at issue suggests Plaintiffs argument may be plausible, this Court does not have the information to evaluate this argument and conclude there is a strong inference of scienter. Plaintiff has not presented the necessary information about accounting principles and internal controls to allow this Court to evaluate whether the *1041individual defendants should have been or must have been aware of the violations.
v. Core Operations
The Ninth Circuit has stated that as a general matter, corporate management’s general awareness of the day-to-day workings of the business does not establish scienter, at least absent additional allegation of specific information conveyed to management and related to the fraud or other allegations supporting scienter. S. Ferry LP, No. 2, 542 F.3d at 785 (citation omitted). However, allegations regarding management’s role in a corporate structure may be considered as part of the holistic analysis required in Tellabs, and such allegations can independent satisfy the PSLRA where they are “particular and suggest that defendants had actual access to the disputed information.” Id. at 785-86. Management’s role and the importance of the corporate information may create a strong inference of scienter when made in conjunction with “detailed and specific allegations about management’s exposure to factual information within the company.” Id. at 785; Zucco, 552 F.3d at 1000. In “rare circumstances,” particularized allegations are not needed where the nature of the relevant fact is of such prominence that it would be “absurd” to suggest that management did not have knowledge of it. S. Ferry LP, No. 2, 542 F.3d at 786.
Plaintiff asserts that the inference of scienter is strengthened because the revenue recognition scheme involved Maxwell’s “core business.” (Opp’n at 20). Plaintiffs also allege that Maxwell operated under an “executive-centric, top-down organizational structure” in which major changes to contract and payment arrangements had to be approved by senior executives, and material changes to payment terms for sales had to be approved by Royal and/or Schramm. (Compl. ¶ 31).
Defendants reject the suggestion that scienter is supported by the individual defendant’s high-level positions and “top-down” corporate structure, and cite to cases in which high rank is insufficient to infer scienter. The Court agrees that rank alone does not suffice to infer scien-ter. There is also insufficient information before this Court for the Court to conclude that it is “absurd” to suggest that the individual defendants did not have knowledge of the improper accounting. The inflation of revenue arose out of a combination of side deals, many of which were allegedly carried out by Andrews, and the failure to communicate those deals to the people who should have adjusted the revenue reported. Plaintiff has not demonstrated to this Court that lack of awareness of this fact rises to the level of absurdity.
The Court also concludes that Plaintiff has not made the necessary “detailed and specific allegations” about management’s exposure to information to give rise to a strong inference of scienter. Although Plaintiff has alleged that the individual defendants attended sales-related meetings and had access to sales reports, this does not support the inference that the individual defendants must have known about the accounting misconduct. Indeed, it is not clear to this Court exactly what information Schramm and Royal would have had about what revenue was actually counted and whether the meetings and reports should have alerted them to the fact that this information was not accurate.
However, the Court does take into consideration in its holistic analysis that the scheme involved core operations of Maxwell’s business and that the individual defendants were allegedly involved or apprised on a regular basis of relevant facts, such as sales and revenue collection. It *1042considers that the organizational structure allegedly required the individual defendants to be involved in certain sales and credit decisions. It also takes into consideration the magnitude of the overstatement, which comprised millions of dollars, and the long duration of the scheme. These facts make it more likely that the individual defendants were or could have been aware of the wrongdoing.
vi. Approval and Holds
Plaintiffs Complaint alleges that the individual defendants were involved in or informed of various aspects of sales. It alleges that violations were “well-known” to individual defendants because they inflated revenue by secretly modifying the payment terms, but failing to inform accounting so that it was recognized as revenue. (Compl. ¶ 58). Plaintiff alleges that they were able to engage in fraud and cover their tracks by lifting the credit holds on the distributors who did not pay them. (Id. ¶ 60)
These allegations are insufficient to independently establish a strong inference of scienter. Even if the individual defendants knew about the extension of special terms to certain customers, and authorized lifting credit holds, this does not indicate that they knew there was an accounting problem. Other than conclusory statements, Plaintiff does not plead any particular facts that indicates that the individual defendants knew that the special terms and side deals were unreported. Plaintiff may be suggesting that individual defendants knew about the side deals, should have known that revenue should therefore not be recognized, and would have seen the inconsistency in financial statements. However, Plaintiff has not pleaded facts from which this Court could make those logical leaps. Close monitoring of accounts and sales does not necessarily indicate that the individual defendants would have known that the final reported accounting numbers were manipulated. Plaintiff has not pled sufficient information about the practices of the company to permit this Court to determine whether the individual defendants could have learned information about particular sales and believed the financial statements to be accurate.
However, the Court does consider the fact that the individual defendants had access to some sales information, knew about at least some payment problems, and that company policy called for them to approve lifting credit holds.
vii. Investigations
Defendant argues that as a restatement alone does not give rise to a strong inference of scienter, neither can the “routine consequences” of a restatement. (Mot at 11). Defendants claims that such routine consequences include the signing of certifications, resignations and terminations of officers and employees engaged in intentional misconduct, the company concluding that internal controls are weak, or a government investigation. (Id.)
With respect to the post-restatement investigation, Defendants contend that government investigations are routine after a financial restatement. (Id. at 12-13). Plaintiff argues that this fact nonetheless contributes to a strong inference of scien-ter, especially in the wake of the recognition of other internal control problems. (Opp’n at 21). Without other information regarding the investigation, this Court cannot find that the investigation gives rise to a strong inference of scienter. Even if the investigation reflects the fact that there was misconduct and that there is suspicion that laws were broken, this does not indicate that Schramm or Royal are suspected of misconduct, much less allow this Court to infer scienter. It is estab*1043lished that there were problems in the financial statements. Plaintiff has not demonstrated how the post-disclosure investigation supports the conclusion that these particular individuals had the required mental state.
Plaintiff also alleges that Maxwell recognized internal control problems before the Class Period. The DOJ and SEC investigated Maxwell and filed actions against Maxwell for violations of the Foreign Corrupt Practices Act (FCPA) that involved the payment of $2.5 million in illicit kickbacks to foreign officials to secure and retain contracts. (Compl. ¶ 33). Plaintiff points to SEC charges that Maxwell did not disclose the material revenues and profits from the bribery scheme, that former Maxwell officers knew about and tacitly approved payments, that payments were not accurately recorded, and that Maxwell failed to implement or maintain a system of effective internal accounting controls. (Id. ¶ 34). Maxwell entered into a deferred prosecution agreement which admitted responsibility (Id. ¶ 35). Plaintiffs Complaint also cites two recent law enforcement investigations. (Id. ¶¶ 36, 37). In the briefing, Plaintiff cites to case law that points out that, after the occurrence of a crisis that could repeat itself, there is incentive to review results and assess the possibility of future problems. (Opp’n at 21 (citing Reese, 747 F.3d at 570-71)).
Defendants contend that pre-Class Period settlement of “unrelated” FCPA violations in China is irrelevant. (Mot. at 13). They point out that Maxwell disclosed the FCPA violations to the government and claim that Maxwell cooperated with the investigations. They also point out that there were no allegations of wrongdoing against Schramm or Royal.
This Court finds that the prior investigation does not give rise to a strong inference of scienter, and does little to increase the plausibility of Plaintiffs allegations. Schramm and Royal do not appear to be directly implicated in the FCPA misconduct. Although the earlier violations do generally suggest problems in at least some aspects of Maxwell’s internal controls, there is no evidence before this Court to suggest that these past failings in China dealings made it more likely to have internal control problems with revenue recognition, or that it should have put the individual defendants on alert with regard to internal controls for revenue recognition.
C. Defendants’ Arguments in Opposition to Scienter
In seeking to dismiss this action, Defendants point to allegations and publicly-available evidence that they contend undermines a finding of a strong inference of scienter.
i. Stock Holdings and Lack of Sales
Defendants argue that allegations of scienter are undermined by the fact that the individual defendants owned a large number of Maxwell shares, and did not sell them. They point out that when the stock price fell as a result of the disclosure, both individual defendants sustained losses. Schramm’s stock was worth $6,273,992 at the Class Period high, and fell to $1,749,023 after the March 19, 2013 disclosure. Schramm also purchased additional Maxwell stock on the open market between June 3, 2011 and August 15, 2012. Royal’s stock was worth $1,601,300 at the high point, and fell to $446,400 after the March 19 disclosure. Defendants argue that it is “inconceivable” that they would hold their shares if they knew there was a problem. (Mot. at 8). They further point out that these losses are larger than the 2011 bonuses of $400,000 for Schramm and $135,800 for Royal. (Id. at 7-8).
*1044Defendants point to case law in which courts found that a strong inference of scienter is contradicted where individual defendants do not sell their stock or retain a large percentage of stock. (Id. at 8; e.g. In re Wet Seal, Inc. Sec. Litig., 518 F.Supp.2d 1148, 1177-78 (C.D.Cal.2007) (finding that a lack of tangible personal benefit, including lack of insider sales, weighs against scienter)). This Court has examined the cited eases. To the extent they support Defendants’ contention, they rely on the common-sense notion that a party will generally not engage in illicit behavior that will cause financial losses to himself or herself.
Plaintiff argues that lack of stock sales does not preclude finding a strong inference of scienter. (Opp’n at 22-23). The Ninth Circuit has held that a lack of stock sales by a defendant is not disposi-tive as to scienter. No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. West Holding Corp., 320 F.3d 920, 944 (9th Cir.2003) (finding scien-ter despite lack of stock sales). Plaintiff also argues that there are many reasons why the lack of sales does not necessarily negate scienter. Plaintiff offers a number of plausible reasons why the defendants might not sell stock despite being aware of the misconduct, including a belief that fraud would continue unabated and recognition that sales could be highly incriminating if the fraud were uncovered. (Opp’n at 23).
The fact that there were no stock sales during this period can be interpreted to support an inference that Schramm and Royal were unaware of this misconduct. However, it is also consistent with the inference that the individual defendants mistakenly believed that the fraud would remain hidden and they ultimately would be able to reap the benefits of the inflated stock value. The individual defendants may well have believed that they could engage in fraud and retain their stock without suffering financial losses.
ii. Individual Defendants’ Bonuses
Plaintiff points to Maxwell’s situation before the Class Period. It alleges that it faced increased competition and lost market share. (Compl. ¶38). Maxwell reported “significant net losses” between 2007 and 2009. (Id. ¶39). Plaintiff contends that this incentivized individual defendants to turn Maxwell’s performance around by padding financial results because their compensation was affected by these results. (Id. ¶39). Plaintiff also questions the compensation program, pointing out that despite losses and financial shortcomings, the individual defendants were able to meet the “ever-changing criteria.” (Id. ¶ 40).
Defendants contend that the bonuses are insufficient to support scienter. They suggest that the program is an unremarkable plan designed to reward performance for certain goals. They also point to the fact that the 2011 bonus was lower than the 2010 bonus, and that there was no 2012 bonus. (Mot. at 10).
The existence of performance-based compensation provides motive for the individual defendants to order or ignore misconduct that would increase revenues. The Court considers this in its holistic review. However, the fact that the individual defendants would benefit personally from apparent improvement in Maxwell’s financial performance does not create a strong inference that the individual defendants had knowledge or were deliberately reckless regarding the misconduct. Plaintiffs allegations that compensation criteria was manipulated to ensure bonus payment, at most, calls into question the integrity of the compensation committee, but does not make it more likely that the individual defendants knew about accounting miscon*1045duct. Indeed, if the existence of performance-based compensation and motive to increase short-term profits were enough to establish scienter, scienter could be found for almost any executive. See Lipton v. Pathogenesis Corp, 284 F.3d 1027, 1038 (9th Cir.2002) (citation omitted) (“If scienter could be pleaded merely by alleging that officers and directors possess motive and opportunity to enhance a company’s business prospects, ‘virtually every company in the United States that experiences a downturn in stock price could be forced to defend securities fraud actions.’ ”).
iii Sales Agreement
Plaintiff argues that Maxwell benefited from the misconduct by entering into an agreement relating to the sale of stock, which ultimately produced $10.3 million in net proceeds. (Compl. ¶ 48). These sales took place at allegedly inflated prices several weeks before Maxwell reported disappointing financial results on April 26, 2012. (Id. ¶ 49). The Ninth Circuit has held that stock sales must be “significant enough and uncharacteristic enough to cast doubt on the defendant company’s motives” in order to create a strong inference of scien-ter. Zucco, 552 F.3d at 1006. Although it netted significant proceeds, Plaintiff has not presented evidence to show that such an offering was uncharacteristic or out of the ordinary. This sale does not create a strong inference of scienter.
iv. The Audit Committee’s Investigation and Results
Defendants point to the fact that neither Schramm nor Royal was found by the audit committee’s investigation to be aware of the improper arrangements, and that the sales arrangements were never communicated to the finance department. (Mot. at 12). Defendants argue that terminations and resignations of other employees after the investigation, including Andrews, do not prove anything about Schramm or Royal, and show that proper remedial actions were taken. (Id.).
Plaintiff argues that the strong inference of scienter far outweighs any competing inference provided by self-serving, self-exonerating findings of the audit committee. (Opp’n at 22). Plaintiff points out that it has not had a chance to examine the audit committee’s investigation and cites to caselaw that recognizes potential problems with relying upon an audit committee’s investigation of its own company. (Id.; In re LDK Solar Sec. Litig., 584 F.Supp.2d 1230, 1246 (N.D.Cal.2008) (“[O]fficers and directors are not exonerated when their own audit committee finds nothing wrong in the company’s accounting practices. To rule otherwise would create a huge fox-guards-the-chicken-house loophole in our private securities law enforcement.”)). Defendants reply that the case law cited by Plaintiff indicates that the audit committees finding is not dispositive, not that it is irrelevant, and points out that Plaintiff has not alleged facts questioning the sufficiency of the investigation. (Reply at 7 n. 4).
The Court takes into account the audit committee’s finding, but does not find it decisive. That the audit committee conducted an investigation and did not find that the individual defendants had knowledge supports the individual defendants’ claim that they lacked scienter. However, this Court will not dismiss the action based on the findings of a committee which have not been presented or examined. The Court does agree that the firings and resignations of non-defendants after the investigation do not necessarily indicate that the individual defendants knew what those employees were doing or participated in the misconduct.
D. Holistic Consideration
As discussed above, none of the individual allegations is sufficient to raise a *1046strong inference of scienter. However, the Supreme Court’s decision in Tellabs permits “a series of less precise allegations to be read together to meet the PSLRA requirement.” S. Ferry, 542 F.3d at 784. The Ninth Circuit has cautioned that “[e]ven if a set of allegations may create an inference of scienter greater than the sum of its parts, it must still be at least as compelling as an alternative innocent explanation.” Zucco, 552 F.3d at 1006.
Here, the primary innocent explanation is that Schramm and Royal did not know about the improper financial misstatements and the failing in the internal controls, and were not deliberately reckless. After full review of the pleadings and the briefing on scienter, the Court has carefully weighed Plaintiffs allegations, the competing inferences, and innocent explanations. The Court concludes that, considered holistically, the Complaint as currently pled does not raise a strong inference of scienter.
Many of Plaintiffs allegations are consistent with the individual defendants’ knowledge and participation in improper accounting. However, these facts are also consistent with a scenario in which other employees carried out improper accounting without the knowledge, direction, or deliberate recklessness of the individual defendants.
Viewed in the aggregate, Plaintiff alleges that the individual defendants did have some significant pieces of information related to the fraud. The individual defendants had regular access to some sales information, and the accounts of confidential witnesses indicate that Schramm and Royal were or should have been aware of some revenue collection problems. One confidential witness reports learning that some information about possible inconsistencies was given to Schramm. The confidential witness accounts of the structure of the company indicates that one or both of the individual defendants were supposed to be involved in some decisions involving special sales terms or lifting credit holds. The individual defendants also clearly had information about the revenue numbers, and signed the certifications for the financial statements containing the reported revenue numbers. The restatement indicates that the revenue numbers were substantially overstated for a period of nearly two years. The individual defendants had a financial motive to improve the appearance of the Maxwell’s financial performance, if they believed the fraud would not be discovered.
However, this is not sufficient to allow this Court to infer scienter. There are no specific facts alleging that an individual defendant acknowledged that revenue was misreported or ordered anyone to misreport anything. There are no specific allegations about the information accessed by the individual defendants or the nature of the accounting process which, taken in combination, suggest that the individual defendants must have known that there was an accounting deception or were deliberately reckless. This Court also considers the fact that both individual defendants suffered financial losses and that none of the internal or external investigators have yet placed blame on the individual defendants. Although the allegations suggest that it is possible that the individual defendants had the requisite scienter, without additional allegations, Plaintiffs theory is not as cogent and compelling as the innocent explanation.
CONCLUSION
As Plaintiff has failed to sufficiently allege scienter, the Motion to Dismiss is GRANTED. This Court need not address the loss causation arguments briefly raised by the parties. However, as Plaintiffs *1047arguments suggest that it may be able to clarify its Complaint and add additional well-pleaded allegations regarding scien-ter, this Court grants leave to amend. If Plaintiff wishes to file an amended consolidated complaint, it must do so no later than 30 days after the date this Order is filed.
IT IS SO ORDERED.
. The Court notes that the Complaint is inconsistent with respect to the exact size of the drop in the stock price on March 20, 2013. (Compl. ¶¶ 13, 91).
. Defendants ask this Court to take judicial notice of documents referenced in the complaint and filed with the United States Securities and Exchange Commission. (Docket No. 50-2). Plaintiff did not state any objection to this Court taking judicial notice of these documents. Documents incorporated by reference in the Complaint and whose authenticity no party questions are properly considered in a Rule 12(b)(6) motion. E.g., DeMarco v. Depo-Tech Corp., 149 F.Supp.2d 1212, 1218 (S.D.Cal.2001) (taking judicial notice of SEC filings referred to in the complaint). Accordingly the Request for Judicial Notice is GRANTED.
. This Court follows Plaintiffs convention of referring to all confidential witnesses with female pronouns to protect confidentiality. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217011/ | MEMORANDUM**
Charles R. Mosley appeals from the district court’s grant of summary adjudication of two of his claims and dismissal of the others. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court properly granted summary adjudication on Mosley’s claim that there was no probable cause to search his residence. The affidavit upon which the search warrant was based stated that trace evidence of murder is often found in the murderer’s home, and that murderers will keep the tools they used and evidence of their crimes in their residences. That is sufficient to establish probable cause to search Mosley’s home. See United States v. Sayakhom, 186 F.3d 928, 934 (9th Cir.1999) (probable cause existed to search residence for evidence of mail fraud where officer stated in affidavit that his experience showed that business operators maintained records in their residences).
The district court also was correct to grant summary adjudication on Mosley’s claim under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), that the warrant was based on lies. Mosley did not make the required “substantial showing” of deliberate falsehoods or reckless disregard, instead making unsubstantiated assertions that the officer and the witnesses were not telling the truth. See Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1295 (9th Cir.1999).
Finally, the district court did not abuse its discretion in dismissing the remaining claims under Federal Rule of Civil Procedure 41(b). Mosley’s joint pretrial state*383ment did not comply -with the court order, which warned him that dismissal might result if he did not properly set forth the disputed factual issues. Mosley neither explained in detail which facts he disputed nor eliminated issues disposed of by summary adjudication. The dismissal is supported by the public’s interest in the expeditious resolution of lawsuits, the court’s interest in controlling its own dockets, the risk of prejudice to the defendants, and the court’s allowing the parties to file an amended joint pretrial statement. See Pagtalunan v. Galaza, 291 F.3d 639, 641-43 (9th Cir.2002) (listing factors). The only factor weighing against dismissal is that favoring disposition of cases on the merits, which alone does not outweigh the four factors favoring dismissal. See id. at 643.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217012/ | MEMORANDUM**
Richard Hobbs, a former employee of the United States Census Bureau, appeals the district court’s grant of summary judgment holding that his complaint for employment discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5, was time-barred. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hobbs did not contact an EEOC counselor within 45 days of the alleged discrimination, as required by 29 C.F.R. § 1614.105(a)(1). The posters in the Census Bureau offices served as constructive notice to Hobbs of the 45-day requirement. See Johnson v. Henderson, 314 F.3d 409, 415 n. 4 (9th Cir.2002). Further, Hobbs filed his complaint more than a year after the EEOC’s final dismissal of his claim, long after the 90-day period during which a claimant may file a civil action after the EEOC’s dismissal. See Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir.1997); 42 U.S.C. § 2000e-5(f)(1). The filing of a motion to amend a complaint by another litigant in another action with different legal and factual issues did not constitute the filing of a civil action by Hobbs.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217014/ | MEMORANDUM**
Angel Montes appeals the district court’s dismissal of his 42 U.S.C. § 1983 claim against the City of Bellflower. The district court gave issue-preclusive effect to the City Council’s decision to revoke Montes’ permit to sell alcohol. The district court also rejected Montes’ contention that he reserved his federal claims under England v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). While the district court properly gave preclusive effect to the City Council’s decision to revoke Montes’ permit, we find that the court erred in rejecting Montes’ England reservation.
England allows a party who has been remitted to state court to reserve the right to return to federal court for a ruling on the federal claims. England, 375 U.S. at 415. The Supreme Court intended to give litigants the right to have their federal claims resolved in federal court. Id. at 415-16. While some courts have applied England only in Pullman abstention cases, the Ninth Circuit has made clear that England applies whenever a party finds itself involuntarily remitted to state court. United Parcel Serv., Inc. v. California Pub. Utilities Comm’n, 77 F.3d 1178, 1185 (9th Cir.1996).
In the present case, the district court held that Montes’ England reservation was ineffective because his case did not involve Pullman abstention. The district court’s ruling is contrary to United Parcel. The district court should have heard Montes’ 42 U.S.C. § 1983 claims because Montes properly filed an England reservation before being remitted to state court. We thus remand the case back to the district court for consideration of Montes’ civil rights claims.
REVERSED AND REMANDED
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224301/ | ORDER DENYING PLAINTIFFS’ OBJECTIONS TO THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S SECOND MOTION FOR ATTORNEYS’ FEES AND ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
LESLIE E. KOBAYASHI, District Judge.
On February 27, 2014, the magistrate judge issued the “Findings and Recom*1050mendation to Grant in Part and Deny in Part Plaintiffs Second Motion for Attorneys’ Fees and Related Nontaxable Expenses” (“F & R”). [Dkt. no. 78.] On March 12, 2014, Plaintiffs I.T. (“Student”), by and through his parents Renee and Floyd T. (collectively “Plaintiffs”), filed their objections to the F & R (“Objections”). [Dkt. no. 79.] Defendant Department of Education, State of Hawaii (“Defendant” or “the DOE”), filed its response to the Objections (“Response”) on March 25, 2014. [Dkt. no. 81.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(e) and LR74.2 of the Local Rules of Practice of the United States District Court for the District of Hawaii (“Local Rules”). After careful consideration of the Objections, Response, and the relevant legal authority, this Court HEREBY DENIES Plaintiffs’ Objections and ADOPTS the F & R, for the reasons set forth below.
BACKGROUND
The factual and procedural background relevant to the merits of this case is set forth in this Court’s September 11, 2012 Amended Order Affirming in Part and Vacating and Remanding in Part the Hearings Officer’s October 6, 2011 Decision (“9/11/12 Order”), [dkt. no. 31,] and in this Court’s December 17, 2013 Order Revising the Hearings Officer’s June 5, 2013 Decision on Remand, and Awarding Compensatory Education (“12/17/13 Order”) [dkt. no. 68].1 Thus, this Court will only discuss the background related to the attorneys’ fees issue.
After this Court issued the 9/11/12 Order, Plaintiffs filed a Motion Attorneys’ Fees and Related Nontaxable Expenses on September 25, 2012 (“First Fee Motion”). [Dkt. no. 32.] On November 30, 2012, 2012 WL 6969333, the magistrate judge issued his findings and recommendation to grant in part and deny in part the First Fee Motion (“First F & R”). [Dkt. no. 42.] The magistrate judge recommended that this Court reduce Plaintiffs’ requested award of $71,693.95 in attorneys’ fees to an award of $46,504.48. [First F & R at 6, 28.] After applying various reductions, the magistrate judge reduced the adjusted request amount, based on limited success, by twenty percent, equivalent to $11,626.13 in attorneys’ fees with general excise tax. [Id. at 22-28.] Plaintiffs filed objections to the First F & R on December 14, 2012. [Dkt. no. 45.] On January 31, 2013, this Court issued an order denying Plaintiffs’ objections to the First F & R and adopting the First F & R as the order of this Court (“1/31/13 Order”). [Dkt. no. 46.2] In the 1/31/13 Order, this Court, inter alia, denied Plaintiffs’ objection to the reduction for limited success. This Court ruled that the magistrate judge “correctly concluded that Plaintiffs success was limited, and that ‘much of the relief sought in this appeal was denied.’ ” 1/31/13 Order, 2013 WL 419016, at *6 (citing First F & R at 25).
Following this Court’s 12/17/13 Order, Plaintiffs filed their Second Motion for Attorneys’ Fees and Related Nontaxable Expenses (“Fee Motion”). [Filed 12/30/13 (dkt. no. 71).] In the Fee Motion, Plaintiffs seek the restoration of the fees deducted for limited success in the 1/31/13 Order, [Mem. in Supp. of Fee Motion at 9,] as well as an award for work performed in this case after November 1, 2012 [id. at 12 & n. 5]. Plaintiffs request a total of $60,715.11 in attorneys’ fees, with general *1051excise tax. [Id. at 23.] In the F & R, the magistrate judge: rejected Plaintiffs’ request for restoration of the limited success reduction in the 1/31/13 Order; [F & R at 1058-59;] reduced Plaintiffs’ counsel John Dellera, Esq.’s requested hourly rate to $300; [id. at 1061;] deducted from Mr. Dellera’s request hours that the magistrate judge found excessive and hours that the magistrate judge found were attributable to clerical or ministerial tasks; [id. at 1061-63;] and reduced Plaintiffs’ remaining post-November 1, 2012 fees by twenty percent for limited success [id. at 1063-65]. The magistrate judge therefore recommended an award of $29,544.00 in attorneys’ fees and $1,392.11 in tax, for a total of$30,936.11. [Mat 1065.]
In the instant Objections, Plaintiffs argue that the magistrate judge erred in: denying the request to restore the fees deducted for limited success in the First F & R and in the 1/31/13 Order; reducing Mr. Dellera’s hourly rate for the work performed after November 1, 2012; reducing Mr. Dellera’s requested hours for time purportedly reflecting clerical or ministerial tasks and block billing; and reducing the post-November 1, 2012 request based on limited success.
STANDARD
This district court reviews a magistrate judge’s findings and recommendations regarding an award of attorneys’ fees under the following standard:
When a party objects to a magistrate judge’s findings or recommendations, the district court must review de novo those portions to which the objections are made and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (“[T]he district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.”).
Under a de novo standard, this Court reviews “the matter anew, the same as if it had not been heard before, and as if no decision previously had been rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir.2006); United States v. Silverman, 861 F.2d 571, 576 (9th Cir.1988). The district court need not hold a de novo hearing; however, it is the court’s obligation to arrive at its own independent conclusion about those portions of the magistrate judge’s findings or recommendation to which a party objects. United States v. Remsing, 874 F.2d 614, 616 (9th Cir.1989).
Valencia v. Carrington Mortg. Servs., LLC, Civil No. 10-00558 LEK-RLP, 2013 WL 3223628, at *5 (D.Hawai’i June 25, 2013).
DISCUSSION
I. Restoration of Prior Reduction
In the instant Objections, Plaintiffs characterize the 1/31/13 Order as issuing only an “interim award.” See, e.g., Objections at 2. Plaintiffs argue that, in light of the 12/17/13 Order’s reversal of the Administrative Hearings Officer’s (“Hearings Officer”) June 5, 2013 Remanded Decision Subsequent to U.S. District Judge Leslie Kobayashi’s September 10, 2012 Amended Order Affirming in Part, and Vacating and Remanding in Part, the Hearings Officer’s October 6, 2011 Decision (“Decision on Remand”) and in light of the 12/17/13 Order’s award of $44,335.53 in tuition reimbursement as compensatory education, Plaintiffs’ “degree of success improved materially” and “the reduction of 20% [in the *10521/31/13 Order] is no longer appropriate.” [Objections at 3-4.]
First, Plaintiffs’ characterization of the fee award in the 1/31/13 Order as merely an “interim” award that could be revisited after the proceedings on remand is inconsistent with this Court’s rulings in the 9/11/12 Order and the 1/31/13 Order. Although this Court in the 9/11/12 Order remanded a portion of the case to the Hearings Officer, nothing in the 9/11/12 Order indicated that this Court would revisit Plaintiffs’ award of attorneys’ fees after the proceedings on remand. Plaintiffs chose to file the First Fee Motion after the 9/11/12 Order. This Court ruled upon that request and issued a final decision on Plaintiffs’ entitlement to attorneys’ fees for the proceedings associated with the 9/11/12 Order. The instant order will constitute this Court’s ruling on Plaintiffs’ entitlement to attorneys’ fees for the proceedings associated with the 12/17/13 Order.3 In the 12/17/13 Order, this Court did not reconsider its rulings in the 9/11/12 Order; this Court made rulings based on the parties’ briefing regarding the proceedings on remand. Any success that Plaintiffs obtained in their appeal from the Hearings Officer’s Decision on Remand did not alter the fact that the record that this Court considered in the 9/11/12 Order was insufficient to determine what compensatory education Student was entitled to receive.
In the alternative to their argument that the 1/31/13 Order merely granted an interim fee award, Plaintiffs also argue that they are entitled to relief from the 9/11/12 Order pursuant to Fed.R.Civ.P. 60(b). Rule 60(b) states:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
None of these grounds apply in the instant case. This Court therefore concludes that *1053Plaintiffs are not entitled to Rule 60(b) relief from the 9/11/12 Order.
Having reviewed the issue de novo, this Court agrees with the magistrate judge’s analysis that Plaintiffs are not entitled to the restoration of the fees deducted in the 1/31/18 Order based on limited success. Plaintiffs’ objection on this issue is DENIED.
II. John Dellera’s Hourly Rate
Plaintiffs next object to the F & R’s reduction of the requested hourly rate for Mr. Dellera from $400 to $300. Plaintiffs argue that the reduction is inconsistent with the Hawaii Supreme Court’s holdings regarding hourly rates in Kaleikini v. Yoshioka, 129 Hawai'i 454, 304 P.3d 252 (2013). [Objections at 7-8.] Plaintiffs emphasize that, in Kaleikini, the Hawaii Supreme Court, inter alia, awarded an attorney with “half as much experience” as Mr. Dellera attorneys’ fees based on an hourly rate of $300. [Id. at 7-9.] Kaleiki-ni, however, is not binding upon this Court in this Court’s consideration of motions for attorneys’ fees pursuant to the Individuals with Disabilities Education Act of 2004 (“IDEA”), and this Court agrees with the magistrate judge’s refusal to follow Ka-leikini. See, e.g., F & R at 1061 (noting that “state court determinations about hourly rates have no bearing on the rates awarded in this district court”).
Plaintiffs also argue that the magistrate judge erred in rejecting Mr. Dellera’s requested hourly rate of $400 because that rate is consistent for the prevailing rates in the community. Plaintiffs emphasize that this district court has previously concluded “that the prevailing rate is not limited to ‘IDEA cases’ but includes the rate paid to ‘all attorneys in the relevant community engaged in equally complex Federal litigation, no matter the subject matter.’ ” [Id. at 9 (quoting A.D. ex rel. L.D. v. Dep’t of Educ., Hawai’i, Civil No. 12-307 JMS-KSC, 2014 WL 692910, at *4 (D.Hawai’i Feb. 20, 2014) (citing Prison Legal News v. Schwarzenegger, 608 F.3d 446, 455 (9th Cir.2010))).] In their memoranda regarding the Fee Motion, the parties addressed whether Mr. Dellera was entitled to an award based on an hourly rate commensurate with the rate awarded to Paul Aston, Esq., in other cases. The magistrate judge ultimately found that Mr. Dell-era’s experience, skill, and reputation did not warrant an hourly rate commensurate with the rates that this district court has previously awarded to Mr. Aston. [F & R at 1060-61.] In analyzing this issue, the magistrate judge did not limit his analysis to IDEA cases. [Id. at 1060-61 (some citations omitted) (citing Au v. Funding Group, Inc., 933 F.Supp.2d 1264, 1274-75 (D.Haw.2013); Eggs ’N Things Int’l Holdings PTE, Ltd. v. ENT Holdings LLC., Civil No. 11-00626 LEK-KSC, 2012 WL 1231962, at *2 (D.Haw. Mar. 20, 2012), adopted by Eggs ’N Things Int’l Holdings Pte, Ltd. v. ENT Holdings LLC., Civil No. 11-00626 LEK-KSC, 2012 WL 1231992 (D.Haw. Apr. 11, 2012)).] Thus, the F & R does not violate the legal principle from A.D. that Plaintiffs cite in the Objections.
This Court agrees with the magistrate judge, [id. at 1061,] that the district court’s award of $300 per hour to Mr. Dellera in A.D. represents a reasonable hourly rate. See 2014 WL 692910, at *5. This Court therefore DENIES Plaintiffs’ objection to the reduction in Mr. Dellera’s requested hourly rate.
III. Reduction for Clerical/Ministerial Tasks and Block Billing
Plaintiffs next object to the magistrate judge’s exclusion of the following hours from Mr. Dellera’s requested hours:
*105412/8/12 A Receive Notice of Status Conference, advise client re what is needed 0.7
3/16/13 F Review exhibits, compare changes in goals; review and select exhibits 2.3 to be offered at remand hearing
[Objections at 11.] Plaintiffs argue that the magistrate judge erred in excluding these hours because:
The first entry was for advice to the client triggered by an upcoming status conference. The time needed to “Receive Notice of Status Conference” was not more than the three or four seconds needed to open the envelope, and the reference simply provided context explaining why advice to the client was provided at that time; it is not a separate time entry improperly block billed with the advice.
The second entry does not contain any clerical or ministerial time. Selecting exhibits for trial is a legal task, not something a lawyer can properly delegate to a clerical employee. See A.D. v. Dept. of Educ., supra, Doc. 109 at 22, 2014 WL 692910 at *8 (finding that “[¿Identifying relevant portions of the record is a legal task”).
[Id. at 11-12 (alterations in Objections).]
In excluding these hours, the magistrate judge stated:
The entire 8 hours may not have been spent on the identified clerical tasks, but because the clerical tasks were blocked billed with other tasks for both the 12/8/12 and 3/16/18 entries, the Court is unable to reasonably apportion the time. Therefore, the entire time entry should be excluded and 3 hours should be excluded from Plaintiffs fee award.
[F & R at 1062-63 (footnote omitted).]
As to Mr. Dellera’s December 8, 2012 entry, this Court first emphasizes that the magistrate judge did not have the benefit of Plaintiffs’ representation that receiving the Notice of Status Conference (“Notice”) only took three or four seconds and the majority of the time reflected in this entry was attributable to advising the client about what the Notice required. Further, this entry, as well as the March 16, 2013 entry, relate to the proceedings on remand. Thus, this Court has no additional information about the content of the Notice. Even if this Court accepts Plaintiffs’ representation about the amount of time it took to review the Notice, this Court does not have sufficient information to determine what the Notice required. This Court therefore cannot find that the December 8, 2012 entry reflects the rendition of legal services.
As to the March 16, 2013 entry, this Court agrees with Plaintiffs that the portion of the entry referring to “review and select exhibits to be offered at remand hearing” describes legal services. The entry, however, also includes a separate activity of “review exhibits,” and this Court agrees with the magistrate judge that the limited information available indicates that this activity was clerical or ministerial in nature. Further, in light of the fact that this Court cannot determine how much of the 2.3 hours attributed to the entry as a whole was spent on the legal services, this Court agrees with the magistrate judge that the entire entry should be excluded as improper block billing.
This Court therefore DENIES Plaintiffs’ objection to the exclusion of the December 8, 2012 entry and the March 16, 2013 entry.
IV. Reduction for Limited Success
Finally, Plaintiffs object to the magistrate judge’s reduction of counsel’s *1055compensable hours by twenty percent for limited success. Plaintiffs argue that the compensatory education award of $44,335.58 in tuition reimbursement that this Court ordered in the 12/17/13 Order “is not immaterial; the amount granted is substantial, and it compensates Loveland [Academy (“Loveland”) ] for an important part of the services it provided.” [Objections at 12 (footnote omitted).] This Court agrees with that statement, but the significance of the final award does not automatically preclude a reduction for limited success. Further, this Court emphasizes that the award of $30,936.11 in attorneys’ fees that the magistrate judge ultimately recommended is a substantial award.
Plaintiffs also argue that Ninth Circuit law prohibits district courts from reducing lodestar awards merely because the plaintiff did not recover the full amount of the damages that he or she sought. [Id. at 13 (quoting Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1033 (9th Cir.2012)).] In the 12/17/13 Order, this Court ruled that “reimbursement for the speech-language services Student received at Loveland is the appropriate compensatory education award.” 2013 WL 6665459, at *7. In so ruling, this Court also ruled that: Plaintiffs were not entitled to reimbursement for all of the services that Student received at Loveland; Plaintiffs were only entitled to tuition reimbursement for the 2010-2011 school year; and Plaintiffs were not entitled to tuition reimbursement for the 2011-2012 school year. Id. This Court also rejected Plaintiffs’ argument that Plaintiffs were entitled to reimbursement of the tuition for Student’s entire program at Loveland because the speech-language services at Loveland were integrated with all of the other services that Loveland provided, including mental health services. This Court noted that it previously ruled that mental health services were not included in the scope of the compensatory education award. Id. at *9.
Plaintiffs appear to argue that, because the magistrate judge stated, “[t]he $44,335.53 compensatory education award, which amounts to 13% of the amount requested by Plaintiff, cannot be said to represent a material improvement in Plaintiffs degree of success,” the magistrate judge applied the limited success reduction based solely on the fact that Plaintiffs did not recover as high an award as they requested. Reading the F & R and the 12/17/13 Order as a whole, however, it is clear that the reduction in the amount of the requested compensatory education award was the result of multiple legal and factual rulings that were adverse to Plaintiffs. Thus, the reduction did not violate Ninth Circuit cases such as Evon.
Plaintiffs also argue that the twenty-percent reduction violates Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir.2013). [Objections at 13.] The magistrate judge considered the Gonzalez argument in the F & R, [F & R at 1064,] and this Court, having reviewed the matter de novo, agrees with the magistrate judge’s analysis. This Court therefore concludes that the magistrate judge’s application of the twenty-percent reduction did not violate Gonzalez.
This Court DENIES Plaintiffs’ objection to the reduction for limited success.
V. Summary and Request for Additional Fees
This Court has reviewed all of the challenged portions of the F & R de novo and has denied all of Plaintiffs’ objections. This Court therefore ADOPTS the F & R in its entirety.
Plaintiffs also request an additional award for the 13.2 hours that Mr. Dellera spent in connection with the Objections. *1056Insofar as this Court has denied the Objections in their entirety, this Court also concludes that Plaintiffs are not entitled to an award of the attorneys’ fees associated with the Objections. [Objections at 15; Dellera Decl. at ¶ 2.] Plaintiffs’ request for an award of additional attorneys’ fees is therefore DENIED.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Objections to the magistrate judge’s Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs Second Motion for Attorneys’ Fees and Related Nontaxable Expenses, filed March 12, 2014, are HEREBY DENIED. Plaintiffs’ request for an award of additional attorneys’ fees associated with the Objections is also DENIED. This Court therefore ADOPTS the magistrate judge’s F & R as the order of this Court.
This Court ORDERS Defendant’s counsel to arrange the transmission of the $30,936.11 award to Plaintiffs, through Plaintiffs’ counsel, by May 29, 2014.
IT IS SO ORDERED.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S SECOND MOTION FOR ATTORNEYS’ FEES AND RELATED NONTAXABLE EXPENSES
KEVIN S.C. CHANG, United States Magistrate Judge.
Before the Court is Plaintiff I.T.’s (“Plaintiff’) Second Motion for Attorneys’ Fees and Related Nontaxable Expenses (“Motion”), filed December 30, 2013. On January 13, 2014, Plaintiff filed a Statement of Consultation (“SOC”). Defendant Department of Education, State of Hawaii (“Defendant”) filed an Opposition on January 27, 2014. On February 10, 2014, Plaintiff filed a Reply.
The Court finds this matter suitable for disposition without a hearing pursuant to Rule 7.2(d) of the Local Rules of Practice of the U.S. District Court for the District of Hawaii (“Local Rules”). After reviewing the parties’ submissions and the relevant case law, the Court FINDS and RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN PART, and that Plaintiff be awarded $30,936.11 in attorneys’ fees and tax.
BACKGROUND
Plaintiff commenced this action to appeal an October 6, 2011 decision issued by Hearings Officer Richard Young. Plaintiff sought to have the Hearings Officer’s Decision vacated. Plaintiff requested that judgment enter approving his unilateral placement at Loveland Academy and ordering Defendant to pay his Loveland tuition and related transportation costs from November 10, 2012, until placement is changed; to reimburse him for the cost of evaluations conducted by Drs. Murphy-Hazzard and Tyson; and to pay reasonable attorneys’ fees, disbursements, and costs.
On July 30, 2012, U.S. District Judge Leslie Kobayashi issued an Order Affirming in Part and Vacating in Part the Hearings Officer’s October 6, 2011 Decision (“Order”). Following the submission of supplemental briefing, Judge Kobayashi issued an Amended Order Affirming in Part and Vacating and Remanding in Part the Hearings Officer’s October 6, 2011 Decision (“Amended Order”). Judge Kobaya-shi concluded that:
1) Defendant violated the Individuals with Disabilities Education Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq., by failing to evaluate Student for a suspected auditory processing disorder, although this violation did not deny *1057Student a Free Appropriate Public Education (“FAPE”) because the evidence ultimately established that he did not have the disorder; and 2) Defendant denied Student a FAPE by faihng to address his speech/language needs until formulation of the August 28, 2010 Individualized Education Programs (“IEP”).
Amended Order at 2. As a remedy for the denial of FAPE, Judge Kobayashi granted Plaintiffs request for compensatory education and remanded the matter to the Hearings Officer for a determination of the form of the compensatory education. Id. The Hearings Officer’s Decision was affirmed in all other respects.
On September 25, 2012, Plaintiff filed a motion for attorneys’ fees. This Court issued a Findings and Recommendation to Grant in Part and Deny in Part Plaintiffs Motion for Attorney’s Fees and Related Nontaxable Expenses on November 30, 2012 (“F & R”). Relevant to the instant Motion, this Court concluded that $275.00 was a reasonably hourly rate for John Dellera, Plaintiffs counsel, and that reductions were necessary for excessiveness, clerical/ministerial tasks, inadequate descriptions, block billing, and partial success. Due to Plaintiffs limited success, the Court reduced the lodestar by 20%.
Notwithstanding Plaintiff’s multiple objections to the F & R, U.S. District Judge Leslie Kobayashi overruled the objections and adopted the F & R (“Fee Order”).
On June 5, 2018, the Hearings Officer issued a decision awarding compensatory education in the form of additional speech-language services to be provided over 78 weeks and determined that Plaintiff was the prevailing party (“Remand Decision”). Plaintiff was granted leave to file an amended complaint seeking review of the decision on the grounds that reimbursement of Loveland Academy tuition should have been awarded and that the speech-language services should be provided in Plaintiff’s IEP.
Plaintiff filed a First Amended Complaint on July 5, 2013.
On July 19, 2013, Defendant filed a motion to dismiss, which Judge Kobayashi denied on July 24, 2013, 2013 WL 3872787.
Upon review of the Hearings Officer’s Remand Decision, Judge Kobayashi issued an Order Revising the Remand Decision (“12/17/13 Order”). Judge Kobayashi found that reimbursement for the speech-language services that Plaintiff received at Loveland was the appropriate compensatory education award for Defendant’s failure to address Plaintiffs speech-language needs in the March 3, 2009 IEP and February 26, 2010 IEP. 12/17/13 Order at 18. Thus, while Plaintiff sought reimbursement for all of his Loveland expenses from July 2010 through July 31, 2012, totaling $329,184.42, Judge Kobayashi limited Plaintiff’s compensatory education award to compensate him for the loss of speech-language services during the time periods covered by the March 3, 2009 IEP and February 26, 2010 IEP. 12/17/13 Order at 18-23. Judge Kobayashi found that an equitable compensatory education award for the failure to address Plaintiff’s speech needs in the aforementioned IEPs was an award of reimbursement equal to 25% of his Loveland tuition from July 2010 through July 2011. Id. at 24. Plaintiff was awarded $44,335.53 for compensatory education. Id. at 25.
DISCUSSION
A. Entitlement to Attorneys ’ Fees
Plaintiff seeks an additional $64,736.05 in attorneys’ fees and tax based on the outcome of this action. Even though this Court and Judge Kobayashi previously concluded that his success was limited, *1058Plaintiff believes that the events occurring since the Amended Order demonstrate that his success was not limited. Relying on findings in the Amended Order that were already addressed and considered in connection with the first motion for fees to assess Plaintiffs degree of success, Plaintiff contends that Defendant will be more careful to comply with the law because of Judge Kobayashi’s decisions. Specifically, Plaintiff notes that Defendant revised his IEP to included mental health services that his mother requested for years. Plaintiff also cites the reimbursement of a “substantial portion” of his Loveland tuition as evidence of his success.
Defendant does not dispute that Plaintiff is the prevailing party with respect to the additional proceedings, but opposes Plaintiffs renewed claims for the fees previously denied. Defendant submits that there is no basis to conclude that the 12/17/13 Order changed the amount of success in the original due process hearing and subsequent appeal. In addition, Defendant asks that the Court apply a percentage reduction to the lodestar for the fees incurred in connection with the remand and appeal.
Section 1415 of Title 20 of the U.S.Code provides: “In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs ... to a prevailing party who is the parent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). To be considered a “prevailing party” for attorneys’ fees purposes, “a plaintiff must not only achieve some ‘material alteration of the legal relationship of the parties,’ but that change must also be judicially sanctioned.” Shapiro ex rel. Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857, 865 (9th Cir.2004) (quoting Roberson v. Giuliani, 346 F.3d 75, 79 (2d Cir.2003)) (quotations omitted).
There is no dispute that Plaintiff is the prevailing party. However, the Court agrees with Defendant that the 12/17/13 Order did not change the degree of Plaintiffs success. Indeed, Plaintiff relies in part on Judge Kobayashi’s determinations about the assessment for Central Auditory Processing Disorder (“CAPD”) and denial of FAPE in the March 3, 2009 IEP and February 26, 2010 IEP as evidence of his success. But these conclusions were made in the Amended Order and were already considered by this Court and by Judge Kobayashi in finding that Plaintiffs success was limited.
Plaintiff also points to a revision to his IEP to include mental health services and the reimbursement of a “substantial portion” of his Loveland tuition as demonstrative of his success. Defendant challenges Plaintiffs argument that this litigation resulted in the change to the IEP. Even assuming this litigation caused such a change to the IEP, that does not alter the rulings and findings made by Judge Koba-yashi in the Amended Order that success was limited. As for the Loveland reimbursement, it is disingenuous for Plaintiff to claim that he received a substantial portion of his tuition. He requested $329,184.42, but only received $44,335.53. That he received 13% of his request can hardly be said to constitute reimbursement of a substantial portion of the tuition. In any event, the proceedings that followed the issuance of the Amended Order, the F & R, and the Fee Order did not alter, nor did it have any meaningful impact on, the Amended Order or this Court’s finding that Plaintiffs success was rather limited. For these reasons, Plaintiff is not entitled to restoration of the 20% reduction previously imposed. The Court accordingly recommends that the $11,626.12 in fees *1059and tax requested for restoration be denied.
B. Fee Request
In addition to the restoration of previously denied fees,1 Plaintiff requests $50,720.00 in fees2 plus $2,389.98 in tax, for a total of $53,109.93.
Under federal law, reasonable attorneys’ fees are generally based on the traditional “lodestar” calculation set forth in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). See Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1119 (9th Cir.2000). The court must determine a reasonable fee by multiplying “the number of hours reasonably expended on the litigation” by “a reasonable hourly rate.” Hensley, 461 U.S. at 433, 103 S.Ct. 1933. Second, the court must decide whether to adjust the lodestar amount based on an evaluation of the factors articulated in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), which have not already been subsumed in the lodestar calculation. See Fischer, 214 F.3d at 1119 (citation omitted).
The factors articulated by the Ninth Circuit in Kerr are as follows:
(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.
Kerr, 526 F.2d at 70.3 Once calculated, the “lodestar” is presumptively reasonable. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 728, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987); see also Fischer, 214 F.3d at 1119 n. 4 (stating that the lodestar figure should only be adjusted in rare and exceptional cases).
1. Reasonable Hourly Rate
In determining the reasonableness of an hourly rate, the experience, skill, and reputation of the attorney requesting fees are taken into account. See Webb v. Ada County, 285 F.3d 829, 840 & *1060n. 6 (9th Cir.2002). The reasonable hourly rate should reflect the prevailing market rates in the community. See id.; Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir.1992), as amended on denial of reh’g, (1993) (noting that the rate awarded should reflect “the rates of attorneys practicing in the forum district”); 20 U.S.C. § 1415 (“Fees awarded under this paragraph shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished.”). It is the burden of the fee applicant to produce satisfactory evidence, in addition to an affidavit from the fee applicant, demonstrating that the requested hourly rate reflects prevailing community rates for similar services. See Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th Cir.1987).
Plaintiff requests an hourly rate of $400.00 for Mr. Dellera, notwithstanding multiple orders in this district awarding Mr. Dellera a $275.00 hourly rate.4 Plaintiff believes that Mr. Dellera’s experience, years of experience, a state court decision, and the declaration of Roger Badger support the requested rate.5 .
Defendant counters that Mr. Dellera is not entitled to a $125.00 increase in his previously awarded hourly rate. Defendant takes issue with Plaintiff equating Mr. Dellera with Paul Alston. The Court agrees that there is no legitimate basis to draw comparisons between the two, other than the fact that both have practiced for approximately the same number of years.
Mr. Alston, one of the most prominent and experienced civil litigators in this district, has been awarded among, if not the highest, hourly rates in this district. However, this Court has limited even his hourly rate to $395.00. Au v. Funding Group, Inc., 933 F.Supp.2d 1264, 1274-75 (D.Haw.2013) (adopting this Court’s recommendation to award Mr. Alston a $395.00 hourly rate); Eggs ’N Things Int’l Holdings PTE, Ltd. v. ENT Holdings LLG, Civil No. 11-00626 LEK-KSC, 2012 WL 1231962, at *2 (D.Haw. Mar. 20, 2012), adopted by Eggs ’N Things Int’l Holdings Pte, Ltd. v. ENT Holdings LLC., Civil No. 11-00626 LEK-KSC, 2012 WL 1231992 (D.Haw. Apr. 11, 2012) (finding reasonable an hourly rate of $395 for Mr. Alston). Other judges in this district have awarded him as much as $540/$567. Eckerle v. Deutsche Bank Nat’l Trust, Civ. No. 10-00474 SOM-BMK, 2012 WL 896266, at *3 (D.Haw. Feb. 21, 2012), adopted by Eckerle v. Deutsche Bank Nat’l Trust, Civ. No. 10-00474 SOM-BMK, 2012 WL 896258 (D.Haw. Mar. 14, 2012); see also Olson v. Lui, Civ. No. 10-00691 ACK-RLP, 2012 WL 3686682, at **3-4 (D.Haw. Aug. 27, 2012) (awarding Mr. Alston a $450 hourly rate). However, these rates are excessive. As the Court explained in Au v. Funding Group, Inc., it “believes that $450 is excessive and not in line with the fee awards in this district. To ensure *1061consistency within this district, the Court is guided by the hourly rates generally awarded in this district, not the amounts charged to clients, nor rates that appear to be outliers.” Au, 933 F.Supp.2d at 1275. Awarding Mr. Dellera an hourly rate that is higher than the amount typically awarded to Mr. Alston would be inconsistent with the awards generally granted by the Court for someone with Mr. Dellera’s experience, skill and reputation.6
Neither the state court opinion regarding hourly rates nor Mr. Badger’s declaration are persuasive or binding. In the F & R, the Court already explained that the declaration of a colleague does not guide or drive the Court’s determination about hourly rates. Moreover, state court determinations about hourly rates have no bearing on the rates awarded in this district court. However, the Court is guided by and finds persuasive a recently issued order in this district finding reasonable a $300.00 hourly rate for Mr. Dellera. A.D. v. Dep’t of Educ., Civil No. 12-00307 JMS-KSC, 2014 WL 692910, at *5 (D.Hawai’i Feb. 20, 2014). As such, the Court finds that $300.00 is a reasonable hourly rate for Mr. Dellera.7
2. Hours Reasonably Expended
Beyond establishing a reasonable hourly rate, a prevailing party seeking attorneys’ fees bears the burden of proving that the fees and costs taxed are associated with the relief requested and are reasonably necessary to achieve the results obtained. See Tirona v. State Farm Mut. Auto. Ins. Co., 821 F.Supp. 632, 636 (D.Haw.1993) (citations omitted). The court must guard against awarding fees and costs which are excessive, and must determine which fees and costs were self-imposed and avoidable. Id. at 637 (citing INVST Fin. Group v. Chem-Nuclear Sys., 815 F.2d 391, 404 (6th Cir.1987), cert. denied, 484 U.S. 927, 108 S.Ct. 291, 98 L.Ed.2d 251 (1987)). This Court has “discretion to ‘trim fat’ from, or otherwise reduce, the number of hours claimed to have been spent on the case.” Soler v. G & U, Inc., 801 F.Supp. 1056, 1060 (S.D.N.Y.1992) (citation omitted). Time expended on work deemed “excessive, redundant, or otherwise unnecessary” shall not be compensated. See Gates, 987 F.2d at 1399 (quoting Hensley, 461 U.S. at 433-34, 103 S.Ct. 1933).
Plaintiff submits that Mr. Dellera expended 126.8 hours. He contends that no reduction in the lodestar should be made, but if the Court makes a reduction, it should not exceed 10%. Defendant asks that the Court reduce the lodestar by 60% because Plaintiff did not prevail on unrelated claims for mental health services, or alternatively, by 30% because Plaintiff only received 13% of the compensatory education requested. After careful review of Plaintiff and Defendant’s submissions, the Court finds that the following reductions are necessary and appropriate.8
a. Excessive Hours
Time expended on work deemed “excessive, redundant, or otherwise unnecessary” shall not be compensated. See Gates, 987 F.2d at 1399 (quoting Hensley, *1062461 U.S. at 433-34, 103 S.Ct. 1933). District court findings about matters such as the redundancy of the hours claimed are given considerable deference. Davis, 976 F.2d at 1544 (quoting Hensley, 461 U.S. at 437, 103 S.Ct. 1933).
The time expended by Mr. Dellera was largely reasonable. The only reduction that should be made is for the 0.7 hours expended on 2/8/14 researching billing by the tenth of an hour. The Court did not request briefing on the matter; it only directed a response about Mr. Dellera’s billing practices. Nor did Mr. Dellera submit any arguments regarding billing increments. For these reasons, the Court reduces the hours by 0.7.
b. Clerical or Ministerial Tasks
Mr. Dellera’s time entries on 12/8/12 and 3/16/13 reflect billing for clerical/ ministerial work, i.e., reviewing court filings and other notices and selecting exhibits. Such tasks are non-compensable. “[Clerical or ministerial costs are part of an attorney’s overhead and are reflected in the charged hourly rate.” Jeremiah B. v. Dep’t of Educ., Civil No. 09-00262 DAE-LEK, 2010 WL 346454, at *5 (D.Haw. Jan. 29, 2010) (citing Sheffer v. Experian Info. Solutions, Inc., 290 F.Supp.2d 538, 549 (E.D.Pa.2003)).
The following is a list of tasks previously deemed clerical or ministerial in this district and therefore deemed non compensable:
reviewing Court-generated notices; scheduling dates and deadlines; calendering dates and deadlines; notifying a client of dates and deadlines; preparing documents for filing with the Court; filing documents with the Court; informing a client that a document has been filed; personally delivering documents; bates stamping and other labeling of documents; maintaining and pulling files; copying, printing, and scanning documents; receiving, downloading, and emailing documents; and communicating with Court staff.9
Haw. Motorsports Inv., Inc. v. Clayton Group Servs., Inc., Civ. No. 09-00304 SOM-BMK, 2010 WL 4974867, at *5 (D.Haw. Dec. 1, 2010), adopted by Haw. Motorsports Inv., Inc. v. Clayton Group Servs., NC, Civ. No. 09-00304 SOM-BMK, 2010 WL 5395669 (D.Haw. Dec. 22, 2010) (also deeming clerical identification and organization of exhibits); see also, e.g., Yamada v. Weaver, Civil No. 10-00497 JMS-RLP, 2012 WL 6019363, at *10 (D.Haw. Aug. 30, 2012), adopted in pertinent part by Yamada v. Weaver, Civil No. 10-00497 JMS-RLP, 2012 WL 6019121 (D.Haw. Nov. 30, 2012) (deeming clerical work completed on table of authorities).
Mr. Dellera expended 3 hours on clerical tasks. The entire 3 hours may not have been spent on the identified clerical tasks, but because the clerical tasks were blocked billed10 with other tasks for both the *106312/8/12 and 3/16/13 entries, the Court is unable to reasonably apportion the time. Therefore, the entire time entry should be excluded and 3 hours should be excluded from Plaintiffs fee award.
Based on the foregoing, the Court finds that Mr. Dellera reasonably expended 123.1 hours.
c. Reduction for Partial Success
Now that the Court has assessed the reasonableness of the time entries submitted by counsel, the Court will address Defendant’s request for an imposition of a reduction for failure to prevail on unrelated claims and/or for lack of success. Plaintiff contends that a reduction is inappropriate because his degree of success has improved materially with the compensatory education award and that under Ninth Circuit precedent, the Court is only authorized to impose a 10% reduction if it is convinced that the lodestar generates an excessive award. The Court disagrees.
The Court already thoroughly addressed the reduction issue in its F & R and adopts and incorporates the same analysis here. A plaintiffs degree of success should be considered in awarding fees in IDEA cases. Aguirre v. Los Angeles Unified Sch. Dist., 461 F.3d 1114, 1119 (9th Cir.2006). However, there is no precise rule or formula for making determinations about fee awards based on varying degrees of success. Id. at 1121 (9th Cir.2006) (quoting Hensley, 461 U.S. at 436, 103 S.Ct.1933). “The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment.” Id. (quoting Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933).
[T]he extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney’s fees under [the IDEA].11 Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.
Hensley, 461 U.S. at 440, 103 S.Ct. 1933. Where, as here, Plaintiffs claims for relief involve a common core of facts and are based on related legal theories, the court “should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 435, 103 S.Ct. 1933.
In exercising its discretion, the Court concludes, as it did before, that Plaintiffs fee award should be reduced by 20%, in addition to the abovementioned reductions. Although Plaintiff is the “prevailing party,” his degree of success has not materially changed since the F & R. As before, Plaintiff only prevailed on one narrow issue. The remand and appeal resulted in an award of compensatory education, but *1064this Court was already aware of and considered the fact that Plaintiff would receive an award of compensatory education when it previously determined that a 20% reduction was appropriate.
Considering that the claims in this case involve a common core of facts and related legal theories, and given the rulings highlighted above, the Court finds that the 20% reduction is appropriate. The Court has focused on the significance of the overall relief obtained by Plaintiff in relation to the hours expended in this litigation and the administrative action. Although Plaintiff will obtain some form of compensatory education award, it will be limited, and it is far less than the relief requested. Therefore, the Court recommends that the lodestar be reduced by 20%.
F & R at 26-27; Fee Order at 13 (“Given Plaintiffs degree of success, the Court agrees that a 20% reduction is appropriate, and not arbitrary. Although Plaintiff understandably feels that counsel is entitled to a greater award, the Court does not agree that the F & R ‘seriously understates the degree of Plaintiffs success.’ ”). The $44,335.53 compensatory education award, which amounts to 13% of the amount requested by Plaintiff, cannot be said to represent a material improvement in Plaintiffs degree of success. The result of the remand and appeal was that Judge Kobayashi assigned a monetary value to the compensatory education award that this Court already anticipated Plaintiff would receive. However, as the Court also expected and duly noted, Plaintiffs award was limited. Therefore, while Plaintiff prevailed and did obtain some relief, the relief was limited and any fee award must be reduced to reflect his limited success.
Plaintiff insists that the Court is limited to imposing a 10% reduction. That is true only if the Court does not explain the reduction. “ ‘[T]he district court can impose a small reduction, no greater than 10 percent — a ‘haircut’ — based on its exercise of discretion and without a more specific explanation.’ In all other cases, however, the district court must explain why it chose to cut the number of hours or the lodestar by the specific percentage it did.” Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir.2013) (internal citation omitted) (alteration in original). Here, the Court has thoroughly explained why it elected to impose a 20% reduction here and in the F & R; it has not arbitrarily imposed a reduction without explanation. See id. (citing Schwarz v. Sec’y of Health and Human Servs., 73 F.3d 895, 899-900, 906 (9th Cir.1995) (affirming 75% cut to the number of hours billed where plaintiff succeeded on only 25% of his claims); Welch, 480 F.3d at 948 (affirming 20% cut to hours where fee applicant block billed, because court relied on third-party report that block billing increased number of hours by 10-30%)). Thus, the Court is not limited to the 10% “haircut” reduction identified by the Ninth Circuit.
Plaintiff erroneously argues that the Ninth Circuit has limited across-the-board cuts to 10% in the number of hours or of the lodestar amount when entries are not disallowed individually. First, as the Court discussed above, there is no restriction on percentage reductions when the Court explains why it has made the reduction. Second, the fact that specific time entries are excluded and a percentage reduction is made to the remaining compen-sable hours for partial success does not result in a double reduction.12 In fact, the *1065method employed by this Court is both necessary and appropriate. The reductions made for excessiveness and clerical work are reductions regularly made by this Court in all cases. Plaintiff is not allowed to recover for tasks that are found to be non compensable. By eliminating these tasks from the total compensable hours, the Court makes a reduction for partial success only to the compensable hours, not to the compensable and non compensable hours. The Court has not made a reduction on top of a reduction; it has separated and distinguished the reductions. No prevailing parties are entitled to recover non compensable hours. The question remaining for the Court after its exclusion of specific time entries is whether Plaintiff is entitled to the entirety of the compensable hours. Under the facts of this case, he is not.
If Plaintiff had achieved greater success, the compensable hours would simply be multiplied by Mr. Dellera’s hourly rate and the resulting lodestar would be the fee award. But because Plaintiffs success was not as significant as he believes, and it is impossible for the Court to identify specific time entries to be excluded on the basis of partial success, the compensable hours must be reduced by a percentage. The Court has reduced the hours in the most precise method possible based on the time entries. Accordingly, the 123.1 com-pensable hours are reduced by 20% and 98.48 hours were reasonably incurred.
C. Total Fee Award
Based on the foregoing, the Court finds that Plaintiff has established that he is entitled to $29,544.00 in fees (98.48 hours x $300.00) plus $1,392.11 in tax, for a total of $30,936.11.
CONCLUSION
In accordance vrith the aforementioned discussion, this Court FINDS and RECOMMENDS that Plaintiff’s Second Motion for Attorneys’ Fees and Related Nontaxable Expenses, filed December 30, 2013, be GRANTED IN PART and DENIED IN PART. The Court recommends that the district court award Plaintiff $30,936.11 in attorneys’ fees.
IT IS SO FOUND AND RECOMMENDED.
DATED: Honolulu, Hawaii, February 27, 2014.
. The 9/11/12 Order is also available at 2012 WL 3985686, and the 12/17/13 Order is also available at 2013 WL 6665459.
. The 1/31/13 Order is also available at 2013 WL 419016.
. This Court notes that, insofar as the instant Fee Motion sought attorneys’ fees incurred from November 1, 2012, the Fee Motion includes attorneys' fees that Plaintiffs could have requested in their objections to the First F & R, which Plaintiffs filed on December 14, 2012. [Dkt. no. 43.] For example, in the instant Objections, Plaintiffs request an additional award of the attorneys’ fees incurred from the review of the F & R through the filing of the Objections. [Objections, Decl. of John P. Dellera ("Dellera Deck”).] Plaintiffs arguably waived their entitlement to the fees incurred from November 1, 2012 to December 14, 2012 by failing to make a similar request in their objections to the First F & R. Further, even assuming, arguendo, that it is proper to award fees for November 1, 2012 to December 14, 2012 in connection with the instant Fee Motion, the fee award for that period arguably should have been based on the $275 hourly rate awarded to Mr. Dellera in the 9/11/12 Order. Defendant, however, did not raise these arguments in either its memorandum in opposition to the Fee Motion, [filed 1/27/14 (dkt. no. 75),] or in the instant Objections. This Court therefore finds that Defendants waived these issues, and this Court will not review the magistrate judge’s award of attorneys’ fees for the period from November 1, 2012 to December 14, 2012.
.Herein lies the problem with requesting an award of fees prior to the final disposition of a case. The Court is forced to evaluate the fee issue without the benefit of knowing the final outcome, and Plaintiff uses the second opportunity to attempt to alter the determination regarding the interim fee award. Moreover, the Court is required to revisit and consult the underlying papers of the interim fee motion, often more than one year later, in evaluating the final fee request. Judicial economy is not served by this duplication of effort. Plaintiff’s counsel is advised in future cases to wait until the final disposition of the case to request attorneys’ fees so that a complete picture of the degree of success is known to the Court and the parties when assessing the fee issue.
. This figure represents 126.8 hours at a $400.00 hourly rate.
. Factors one through five have been subsumed in the lodestar calculation. See Morales v. City of San Rafael, 96 F.3d 359, 364 n. 9 (9th Cir.1996). Further, the Ninth Circuit, extending City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), held that the sixth factor, whether the fee is fixed or contingent, may not be considered in the lodestar calculation. See Davis v. City & County of San Francisco, 976 F.2d 1536, 1549 (9th Cir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993).
. Plaintiff previously requested a $290.00 hourly rate, an increase from his $275.00 hourly rate, based on inflation. The Court rejected the argument. Plaintiff concedes Mr. Dellera’s rate in this district is $275.00, but argues that it is below prevailing rates as evidenced by a recent Hawaii Supreme Court decision, Kaleikini v. Yoshioka.
. Plaintiff also notes that he has requested a $400.00 hourly rate on a motion for attorneys’ fees pending before the Appellate Commissioner for the Ninth Circuit. The fact that a party seeks a specific amount is not evidence or authority to support the present request. Just as a request for a $700.00 hourly rate in another case before another court would have no bearing on the Court’s determination here, neither does Plaintiff’s request pending before the Ninth Circuit. Even if the Ninth Circuit awarded that amount in a different case, it would not necessarily compel this Court to do so.
. The Court’s comparison is not based solely on the small community of IDEA attorneys in this district.
. Had the Court restored the fees previously deducted, the $275.00 rate would have applied, not the $300.00 rate.
.Mr. Dellera employs quarter hour billings for some entries. Ordinarily, the Court would make reductions for quarter hour billings. However, given Mr. Dellera’s representation that he only billed by the quarter hour when a task took 15 or 45 minutes, the Court shall not make reductions in this case.
. This list is a sampling and is not exhaustive.
. “The term 'block billing’ refers to the timekeeping method by which each lawyer and legal assistant enters the total daily time spent working on a case, rather than itemizing the time expended on specific tasks.” Robinson v. City of Edmond, 160 F.3d 1275, 1284 n. 9 (10th Cir.1998) (citations and quotation marks omitted). Block billing entries generally fail to specify a breakdown of the time spent on each task.
District courts have the authority to reduce hours that are billed in block format because such a billing style makes it difficult for courts to ascertain how much time counsel expended on specified tasks. Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir.2007). See also id. (citing Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 971 (D.C.Cir.2004) (reducing requested hours because counsel’s practice of block billing "lumpfed] together multiple tasks, making it impossible to evaluate their reasonableness”); see also *1063Hensley, 461 U.S. at 437, 103 S.Ct. 1933 (holding that applicant should "maintain billing time records in a manner that will enable a reviewing court to identify distinct claims”)).
. Aguirre, 461 F.3d at 1121 (holding that attorneys’ fees awarded under 20 U.S.C. § 1415 are governed by the standards set forth in Hensley and its progeny).
. To the extent Plaintiff argues that the Court’s double reduction (for individual time entries and percentage reduction of compen-sable hours) justifies the restoration of the hours excluded in the F & R and Fee Order, the argument is barred and rejected. Judge *1065Kobayashi already concluded that this Court’s reductions were proper (both the individual time entry reductions and the percentage reduction) and there is no basis to restore the previous reductions pursuant to this newly raised argument. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224302/ | *1068
ORDER GRANTING IN PART AND DENYING IN PART GOVERNMENT’S OMNIBUS PENALTY PHASE MOTIONS IN LIMINE, DOC. NO. 2605
J. MICHAEL SEABRIGHT, District Judge.
I. INTRODUCTION
The government’s April 21, 2014 Omnibus Penalty Phase Motions in Limine seek to exclude four categories of evidence from the selection phase of this capital murder trial (in the event that the jury determines that Defendant Naeem Williams (“Defendant”) is eligible for a sentence of death). See Doc. No. 2605. Defendant filed an Opposition April 27, 2014, Doc. No. 2639, and argument was heard on May 5, 2014. Based on the following, the court GRANTS the Motions in Limine in part and DENIES them in part.
II. ANALYSIS
A. Motion to Exclude Unsworn Allocution by the Defendant
The government seeks to preclude Defendant from offering unsworn allocution — i.e.,- an unsworn statement to the jury not subject to cross examination asking for mercy, explaining his conduct, apologizing for the crime, and/or anything else in an effort to lessen his sentence. See Doc. No. 2605, Gov’t Mot. at 5; see also United States v. Jackson, 549 F.3d 963, 980 n. 22 (5th Cir.2008) (defining allocution). The government argues that Defendant does not have a constitutional or statutory right to allocution, and an unsworn statement fails the probative balancing test outlined in the Federal Death Penalty Act (“FDPA”). The court rejects this argument.
The government bases its argument on caselaw outside this Circuit holding that there is no constitutional or statutory right to unsworn allocution before the jury in capital sentencing hearings. See United States v. Lawrence, 735 F.3d 385, 407 (6th Cir.2013) (collecting and joining caselaw from the Fourth, Fifth, and Eighth Circuits that there is no constitutional right to allocution before a jury in a federal capital sentencing hearing). This argument ignores, however, caselaw from this Circuit-Boardman v. Estelle, 957 F.2d 1523 (9th Cir.1992) — which held that a trial court’s denial of a defendant’s request to alloeute before sentencing amounts to a denial of due process. In particular, Boardman held:
Recognizing the personal nature of the Sixth Amendment’s guarantee of the right to make a defense, the unique ability of a defendant to plead on his own behalf, and the Supreme Court’s acknowledgment of the continuing vitality of the practice of permitting a defendant to alloeute before sentencing, we hold that allocution is a right guaranteed by the due process clause of the Constitution. Our holding is limited to circumstances in which a defendant, either unrepresented or represented by counsel, makes a request that he be permitted to speak to the trial court before sentencing. If the trial court denies that request, the defendant has not received due process.
Id. at 1529-30. Thus, Boardman stands for the proposition that “[d]ue process requires that a defendant who seeks to speak must be given such an opportunity before a sentence is imposed.” See United States v. Silva, 472 F.3d 683, 687 (9th Cir.2007).
Although Boardman did not address capital sentencing, United States v. Chong, 104 F.Supp.2d 1232 (D.Haw.1999), applied Boardman in holding that a defendant has a right to alloeute before a sentencing jury in a capital sentencing hearing. Chong saw “no basis for distinguishing [Board-*1069man] from the instant case,” and explained that allowing a defendant to allo-cute before the sentencing judge would be an “empty formality” in capital cases where the judge lacks sentencing discretion. Id. at 1234. Chong further explained that a defendant testifying under oath and subject to cross examination is not the same as allocution:
The Court observes that the fear of cross-examination might compel capital defendants to forego addressing the jury and offering pleas for mercy, expressions of remorse, or some explanation that might warrant a sentence other than death. Moreover, the Court sees no reason why a capital defendant should have a lesser right to explain his position and ask for mercy by being sworn and subject to cross examination than a non-capital defendant, who has an unfettered right to allocute.
Id at 1236.
Although not specific to a capital case, the court believes that the prudent approach is to follow Boardman. Boardman recognizes a constitutional right to allo-cute, and that to make such right meaningful, the court must provide Defendant the opportunity to allocute before the jury. And to the extent the government asserts that allocution may run afoul of the eviden-tiary standard applicable to capital cases outlined in 18 U.S.C. § 3593(c), the court believes that limits on the scope of allocution and/or appropriate instructions to the jury will address this concern. See United States v. Biagon, 510 F.3d 844, 847 (9th Cir.2007) (“[W]e have ‘never held that a defendant has a right to unlimited allocution.’ ” (quoting United States v. Leasure, 122 F.3d 837, 840 (9th Cir.1997))); see, e.g., United States v. Wilson, 493 F.Supp.2d 509, 511 (E.D.N.Y.2007) (placing limits on scope of allocution); United States v. Henderson, 485 F.Supp.2d 831, 845 (S.D.Ohio 2007) (holding that “Defendant has a right to allocute before the sentencing jury subject to an appropriate limiting instruction”).
During argument on this matter, counsel for Defendant indicated that, if permitted to allocute, Defendant would read from a prepared statement. The court will require, at a future time to be determined, that this statement be provided to the court and the government for review, and to allow the government to make specific objections, if any. The court therefore DENIES the government’s Motion in Li-mine to preclude Defendant from providing unsworn allocution before the jury during the selection phase, and will set appropriate limits on the allocution after further discussion with counsel.
B. Motion to Exclude “Execution Impact” Evidence
Next, the government seeks to prevent Defendant from introducing evidence at the mitigation phase relating to the effect his execution would have on his family, friends, or loved ones, arguing that such evidence is irrelevant and improper, even at that stage. Doc. No. 2605, Gov’t Mot. at 11.
Under 18 U.S.C. § 3592(a)(8), in determining whether to impose a sentence of death, a finder of fact “shall consider any mitigation factor, including: ... [ojther factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.” In this regard, § 3592(a)(8) is nearly identical to factors identified in caselaw under the Eighth and Fourteenth Amendments. See, e.g., Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (holding that constitutionally relevant mitigating evidence consists of “any aspect of a defendant’s character or record and any of *1070the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”) (plurality); Edidings v. Oklahoma, 455 U.S. 104, 114-15, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (reversing and remanding a death sentence, applying Lockett, and reasoning that a sentencing court “may determine the weight to be given relevant mitigating evidence ... [b]ut [it] may not give it no weight by excluding such evidence from [its] consideration.”); Williams v. Ryan, 623 F.3d 1258, 1270-71 (9th Cir.2010) (applying Lockett and Eddings).
Given these standards, the government identifies five categories of “execution impact” evidence that it believes are irrelevant to the issue of mitigation, specifically: “testimony that the defendant’s family and friends love him, that a death verdict would have a negative impact on them, their own personal views about the death penalty, their opinion regarding the sentence that should be imposed in this case, or any general plea for sympathy or mercy.” Doc. No.2065, Gov’t Mot. at 17.1
Initially, in response, Defendant concedes (appropriately) that he “does not intend to ask his mitigation witnesses to state their personal views about the death penalty or their opinionfs] about the sentence that should be imposed in this case.” Doc. No. 2639 at 20, Def.’s Opp’n at 18. Accepting that concession, the third and fourth categories identified by the government are not at issue. But Defendant contests the government’s Motion by seeking to offer evidence in the first two categories, ie., “testimony that the defendant’s family and friends love him, [and] that a death verdict would have a negative impact *1071on them.” Doc. No.2065, Gov’t Mot. at 17. He relies on parameters discussed in United States v. Mitchell, 502 F.3d 931 (9th Cir.2007), which upheld a district court’s “refus[al] to permit defense witnesses to express their opinion on whether [defendant] should be given the death penalty, although witnesses were allowed to ask the jury to spare [defendant’s] life.” Id. at 990. In so doing, Mitchell reasoned:
Here the court drew a fine, but appropriate, line for testimony as to whether Mitchell should receive the death penalty. It allowed witnesses to testify regarding their affection for Mitchell and their wish for his life to he spared, but did not allow them to offer an opinion about what they thought the jury’s verdict should be. In doing so, the court kept the jury focused on relevant mitigating evidence, i.e., “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” Testimony that was adduced from Mitchell’s family and teachers about his record and character was relevant mitigating evidence because it had a tendency to show that imposition of the death penalty was not justified. See 18 U.S.C. § 3592(a)(8). By the same token, personal opinions about what the verdict should be are not probative of any statutory mitigating factor identified in § 3592(a)(l)-(8). Id. § 3592(a)(8). The district court had discretion to exclude irrelevant evidence, and acted well within it here.
Id. at 991 (emphasis added) (internal citations omitted). Mitchell thus establishes that the court has discretion to allow at least some “execution impact” testimony— consistent with several other federal courts as noted above — and, in particular, as to relatives’ “affection for” a defendant and “their wish for his life to be spared.” Such evidence can be “relevant mitigating evidence because it ha[s] a tendency to show that imposition of the death penalty [is] not justified,” and can concern his “record and character.” Id. By the same token, however, Mitchell clearly recognizes that it is improper for third parties to testify as to “personal opinions about what the [jury’s] verdict should be.” Id.2
Although Mitchell explains that this is a “fine line,” the court will allow Defendant, if desired, to present limited testimony from others about “their affection for [him] and their wish for his life to be spared.” Id. That is, the court DENIES the government’s Motion to that extent. To make the parameters clear, Defense witnesses may also, if desired, testify that Defen*1072dant’s life has value to them, and in that sense, his death could impact them. As Defense counsel stated at oral argument, they may testify to the effect “that he has been a good enough person to build a relationship with someone to the point that that person will say I care that he’s going to be executed and I don’t want to see him executed.” Doc. No. 2661, Tr. May 5, 2014, at 16.
In all other respects, however, the Motion to preclude execution impact testimony is GRANTED. Even if a witness testifies that he or she does not want to see Defendant executed, it would not be relevant as a mitigating factor to understand what specific impact his execution would have on that witness. At that point, such testimony would not be relevant towards Defendant’s background, character, or the offense — it would be purely to garner general sympathy for the defense. Moreover, at this point, such evidence would be inadmissible and improper under 18 U.S.C. § 3593(c) because any probative value would be “outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury” — that is, any marginal relevance toward Defendant’s background, character, or the offense would be outweighed by introducing direct evidence of an impact on someone else. See, e.g., United States v. Fell, 360 F.3d 135, 145 (2d Cir.2004) (“[U]nder the FDPA Standard, judges continue their role as evidentiary gatekeepers and, pursuant to the balancing test set forth in § 3593(c), retain the discretion to exclude any type of unreliable or prejudicial evidence that might render a trial fundamentally unfair.”) (citations, internal quotation marks, and brackets omitted); Cf. United States v. Taveras, 584 F.Supp.2d 535, 539 (E.D.N.Y.2008) (“The court has a duty to minimize the ‘risk [of] a verdict impermis-sibly based on passion, not deliberation.’ ”) (quoting Payne v. Tennessee, 501 U.S. 808, 836, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (Souter, J., concurring)).
Further, witnesses may not testify as to their opinion about what they think the jury’s verdict should be (as conceded by Defendant). Specifically, the court precludes testimony from Defendant’s witnesses as to “their own personal views about the death penalty, their opinion regarding the sentence that should be imposed in this case, or any general plea for sympathy or mercy.” Doc. No.2065, Gov’t Mot. at 17. As cautioned in Fell, any “sympathy for a defendant’s family should not be considered by the jury in mitigation,” and so “[e]vidence introduced solely to elicit jury sympathy towards third parties impacted by [defendant’s] execution will be precluded.” 2005 WL 1634067, at *2.
C. Motion to Preclude “Comparative Proportionality” Evidence and Arguments
The government also seeks to preclude Defendant from submitting evidence and/or argument to the jury comparing the facts of this case to any other case in which a sentence of death was not imposed. Doc. No. 2605, Gov’t Mot. at 16. The government argues that “comparative proportionality” evidence is neither constitutionally required nor relevant to mitigation. Id. In opposition, Defendant argues that the court should follow United States v. Sampson, 335 F.Supp.2d 166 (D.Mass.2004), which indicated that proportionality evidence may be relevant as a mitigating factor for purposes of sentencing under the FDPA.3 Id. at 195.
*1073Defendant specifically proposes to present to the jury, via the testimony of attorney Kevin McNally, the Director of the Federal Death Penalty Resource Counsel Project, “(1) a statistical summary of the number of federal death eligible cases as compared to the small number of cases in which it has actually been imposed; and (2) a brief summary of the facts of a select group of minor victim federal murder cases which are equally or more aggravated than [Defendant’s] case in which the death penalty has not even been sought.” Doc. No. 2639, Defi’s Opp’n at 23. Based on the following, the court finds that Defendant’s proposed evidence is inadmissible.
This dispute ultimately turns on whether the proffered “comparative proportionality” evidence is relevant mitigation evidence and admissible under the FDPA.4 In this regard, the FDPA provides:
*1074(а) Mitigating factors. — In determining whether a sentence of death is to be imposed on a defendant, the finder of fact shall consider any mitigating factor, including the following:
(1) Impaired capacity. — The defendant’s capacity to appreciate the wrongfulness of the defendant’s conduct or to conform conduct to the requirements of law was significantly impaired, regardless of whether the capacity was so impaired as to constitute a defense to the charge.
(2) Duress. — The defendant was under unusual and substantial duress, regardless of whether the duress was of such a degree as to constitute a defense to the charge.
(3) Minor participation. — The defendant is punishable as a principal in the offense, which was committed by another, but the defendant’s participation was relatively minor, regardless of whether the participation was so minor as to constitute a defense to the charge.
(4) Equally culpable defendants. — Another defendant or defendants, equally culpable in the crime, will not be punished by death.
(5) No prior criminal record. — The defendant did not have a significant prior history of other criminal conduct.
(б) Disturbance. — The defendant committed the offense under severe mental or emotional disturbance.
(7)Victim’s consent. — The victim consented to the criminal conduct that resulted in the victim’s death.
(8)Other factors. — Other factors in the defendant’s background, record, or character or any other circumstance of the offense that mitigate against imposition of the death sentence.
18 U.S.C. § 3592(a).
Thus, “[t]he Act lists seven types of mitigating factors, plus a catch-all, that the jury ‘shall consider’ in determining whether to recommend a death sentence.” United States v. Gabrion, 719 F.3d 511, 524 (6th Cir.2013) (en banc), cert. denied, — U.S. -, 134 S.Ct. 1934, 188 L.Ed.2d 963 (2014). These factors generally concern a defendant’s culpability (“[ijmpaired capacity!,]” “unusual and substantial duress,” “the defendant’s participation was relatively minor,” “[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death,” “[t]he defendant committed the offense under severe mental or emotional disturbance!,]” and “[t]he victim consented to the criminal conduct that resulted in the victim’s death”); or the defendant’s background (“The defendant did not have a significant prior history of other criminal conduct”); with the remaining factor being a “catch-all” that “simply tracks the Supreme Court’s definition of mitigation evidence.” Id. That is, “[e]very indication in the statute is [that] all of the examples of mitigating evidence listed in § 3592(a) concern the defendant’s background, culpability, or crime.” Id.
Although the standard for mitigation evidence is broad, the evidence *1075must still be “relevant.” “The statutory language of ‘any mitigating factor,’ [in § 3592(a) ], is the same as the Constitutional requirement of ‘any relevant mitigating factor[.]’ ” United States v. Taylor, 588 F.Supp.2d 923, 935 (E.D.Tenn.2008) (quoting Abdul-Kabir v. Quarterman, 550 U.S. 233, 248, 127 S.Ct. 1654, 167 L.Ed.2d 585 (2007) (citation omitted and emphasis added)). See also Buchanan, 522 U.S. at 276, 118 S.Ct. 757 (“[I]n the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination.”) (emphasis added); 18 U.S.C. § 3593(c) (“The defendant may present any information relevant to a mitigating factor.”). And relevant mitigating evidence is “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett, 438 U.S. at 604, 98 S.Ct. 2954.5
Given that standard for “relevance” under § 3592(a), the court agrees with and follows the many courts , that have disallowed comparative proportionality evidence at a mitigation/selection phase. See Taylor, 583 F.Supp.2d at 935 (“The outcomes of other cases ... have nothing to do with the defendant in this case or the circumstances of his offense or any of the mitigating factors in § 3592(a).”); see also United States v. Caro, 461 F.Supp.2d 459, 465 (W.D.Va.2006) (“[Allowing the defendant during closing argument to reference totally unrelated cases in which the death penalty was not sought or the defendant was not sentenced to death, would lead to a confusion of the issues and mislead the jury.”); United States v. McCluskey, Crim. No. 10-2734 JCH (D.N.M. Nov. 18, 2013) (Memorandum Opinion and Order denying Defendant McCluskey’s Motion in Limine to Admit Testimony of Kevin McNally); United States v. Regan, 221 F.Supp.2d 659, 660-61 (E.D.Va.2002) (concluding that “because Defendant has no underlying constitutional right of proportionality review, he has no right to discovery” of evidence “that would compare his conduct to that of others convicted of espionage,” and reasoning that “[t]he conduct of other individuals involved in totally unrelated acts of espionage has no bearing on the culpability of the Defendant’s conduct for mitigation purposes”).6
In sum, “comparative proportionality review” is not constitutionally required. See Pulley, 465 U.S. at 50-51, 104 S.Ct. 871. The FDPA is likewise constitu*1076tional, despite a lack of comparative proportionality review. See Mitchell, 502 F.3d at 980. Such evidence is irrelevant as a mitigation factor under § 3592(a). And even if it might have some relevance, the evidence proffered by Defendant is likely to confuse and mislead the jury. See 18 U.S.C. § 3593(c). Accordingly, the court GRANTS the government’s Motion to preclude comparative proportionality evidence.7
D. Motion to Preclude Arguments That “Beyond a Reasonable Doubt” Standard Applies to Weighing Process
Lastly, the government seeks to preclude Defendant from arguing that the government must prove beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors in determining whether a sentence of death is justified. The court agrees with the government—Ninth Circuit authority is directly on point. See Mitchell, 502 F.3d at 993-94 (rejecting the argument that “the rule of Apprendi requires not only that the question whether aggravators outweigh mitigators and the question whether death is justified be submitted to a jury—but that they be proved beyond a reasonable doubt”).
Under 18 U.S.C. § 3593(e),
the jury ... shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death.
And if the jury reaches this stage, it will have necessarily already found (beyond a reasonable doubt) that “at least one gateway intent factor existed, and at least one statutory aggravating factor existed,” Mitchell, 502 F.3d at 993, so as to make Defendant eligible for the death penalty. At this point, “the jury’s task is no longer to find whether factors exist; rather each juror is to ‘consider’ the factors already found and to make an individualized judgment whether a death sentence is justified.” Id. This “weighing step ... ‘merely channels a jury’s discretion by providing it criteria by which it may determine whether a sentence of life or death is appropriate.’ ” Id. (quoting Kansas v. Marsh, 548 U.S. 163, 177, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006)).
Although Apprendi requires a jury to determine beyond a reasonable doubt a “fact” that has the effect of increasing a sentence, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) a jury’s determination under § 3593(e) “is not a finding of fact, but a moral judgment.” Gabrion, 719 F.3d at 533.
What § 3593(e) requires ... is not a finding of fact in support of a particular sentence. What § 3593(e) requires is a determination of the sentence itself, within a range for which the defendant is already eligible. That makes this [issue] different from any in which the Supreme Court has applied Apprendi.
Id. See also, e.g., United States v. Fields, 483 F.3d 313, 346 (5th Cir.2007) (“[T]he Apprendi/Ring rule [does] not apply here because the jury’s decision that the aggravating factors outweigh the mitigating factors is not a finding of fact. Instead, it is a ‘highly subjective,’ ‘largely moral judg*1077ment’ ‘regarding the punishment that a particular person deserves.’ ”) (quoting Caldwell v. Mississippi 472 U.S. 320, 340 n. 7, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)).
In response, Defendant emphasizes that Mitchell was reviewing a district court instruction for plain error, and qualified its holding by stating that the “resolution of the question ... is not squarely presented.” 502 F.3d at 994. Mitchell, however, unequivocally rejected the defendant’s argument that Apprendi and its progeny required a jury to make its decision weighing the factors finding beyond a reasonable doubt. Id. at 993-94. Moreover, Mitchell is consistent with “[ejvery circuit to have addressed the argument that [Defendant] makes here — six circuits so far — [which have] rejected it.” Gabrion, 719 F.3d at 533 (citing cases). In short, the court follows Mitchell (as it must) and the well-reasoned decisions of six other circuits that have also rejected the argument that a jury must make its selection-phase decision under § 3593(e) by applying a beyond a reasonable doubt standard.
III. CONCLUSION
Based on the above, the court GRANTS in part and DENIES in part the government’s Omnibus Penalty Phase Motions in Limine, Doc. No. 2605.
IT IS SO ORDERED.
. The government relies extensively on Fourth and Fifth Circuit opinions specifically holding that such "execution impact” evidence is irrelevant towards mitigation. See United States v. Hager, 721 F.3d 167, 194 (4th Cir.2013) (“[AJllowing a capital defendant to argue execution impact as a mitigator is improper.”); United States v. Snarr, 704 F.3d 368, 401 (5th Cir.2013) ("Because such evidence ‘does not reflect on [the defendant’s] background or character or the circumstances of his crime,’ ... this court consistently has affirmed the exclusion of execution impact testimony[.]”) (citing cases).
But these opinions also acknowledge that other Circuits (and district courts in other Circuits) permit such testimony, at least to some degree. See, e.g., Wright v. Bell, 619 F.3d 586, 597-98 (6th Cir.2010) (concluding, on habeas review, that defense counsel was not deficient when presenting "the testimony of [defendant’s] mother about the adverse impact [defendant’s] execution would have on the family”); Sinisterra v. United States, 600 F.3d 900, 909-10 (8th Cir.2010) (indicating a jury could consider in mitigation "evidence of the impact a death sentence would have on [defendant's children]”); United States v. Wilson, 493 F.Supp.2d 491, 506-07 (E.D.N.Y.2007) (reasoning that "the sort of evidence the Government seeks to preclude, i.e., how [defendant’s] family would feel if he were executed, may fairly be considered part of [defendant’s] ‘background’ as that term is used in Section 3592(a)(8)”); United States v. Fell, 2005 WL 1634067, at *2 (D.Vt. July 5, 2005) ("Third party impact testimony may shed light on [defendant’s] background and character by providing testimony about any ‘positive qualities,’ ‘his capacity to be of emotional value to others' and the nature of his interpersonal relationships. However ... sympathy for a defendant’s family should not be considered by the jury in mitigation. Evidence introduced solely to elicit jury sympathy towards third parties impacted by [defendant’s] execution will be precluded.”); United States v. Moonda, 2007 WL 2071924, at *1 (N.D.Ohio July 13, 2007) (allowing “testimony from the defendant’s family and friends expressing affection for the defendant and evidence of the impact that a death sentence would have on the defendant's family members” under § 3592(a)(8)).
Ultimately, however, as discussed below, this court must follow guidance from the Ninth Circuit in United States v. Mitchell, 502 F.3d 931 (9th Cir.2007), which gives the district court discretion to allow some, limited, "execution impact” evidence as being relevant towards mitigation.
. The government also relies on Stenson v. Lambert, 504 F.3d 873 (9th Cir.2007), which upheld a Washington state court’s exclusion of certain "execution impact” testimony (described as evidence of “the impact of [defendant’s] execution on his family, particularly on his three young children and his father, who suffered from a heart condition”) as mitigation evidence. Id. at 891-92. Stenson, however, did so on habeas review, applying the standard set forth in 28 U.S.C. § 2254(d)(1) (whether a state court was "contrary to, or involving] an unreasonable application of federal law”). And Stenson reasoned that ”[t]he testimony the trial court excluded encompassed a very narrow swath of evidence, revealing only what [defendant’s] family members' opinions were as to the sentence [he] should receive.” Id. at 892 (emphasis added). Stenson is thus consistent with Mitchell insofar as indicating it is improper to allow a family member to offer an opinion on the jury’s verdict.
The government emphasizes Stenson’s statement that the defendant "cannot point to any federal case requiring admission of ‘execution impact’ testimony because there are no such cases.” Id. So too, this court is not implying that Mitchell (or any other case) requires admission of “execution impact” testimony in mitigation — rather, under Mitchell, the court has discretion to allow some such testimony, but with appropriate limitations.
. Ultimately, however, Sampson excluded such evidence (also consisting of case summaries from Mr. McNally of the Federal Death Penalty Resource Counsel Project) be*1073cause the probative value of such evidence was outweighed by the danger of unfair prejudice:
In order to determine which of the many other cases are sufficiently similar to this case to bear on the question of proportionality, the jury would have had to hear a large amount of evidence. In effect, the court would have had to conduct many mini-trials of other FDPA cases, since a jury would be unable to perform meaningful proportionality review based on brief summaries of other cases. Rather, in order to fully appreciate the verdicts reached in those cases, jurors in this case would have had to hear substantial testimony regarding the crime and the defendant in the other cases. The amount of time that would have had to be spent educating jurors regarding all other FDPA cases in a non-prejudicial manner, which could have been measured in weeks or months, as compared to the amount of time spent on the mitigation case as a whole, likely would have diverted the jury's focus from the facts relating to Sampson and his crimes.
335 F.Supp.2d at 197.
. The Supreme Court and the Ninth Circuit have both held that the Eighth Amendment does not require a court to compare the possible sentence in its case with the penalties imposed, or not imposed, in similar cases. See Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Ceja v. Stewart, 97 F.3d 1246, 1252 (9th Cir.1996). Pulley explains that there is a difference between “[striking] down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime," 465 U.S. at 43, 104 S.Ct. 871, as compared to whether a penalty is "unacceptable in a particular case because [it is] disproportionate to the punishment imposed on others convicted of the same crime.” Id. Pulley rejected that this latter inquiry is required under the Eighth Amendment, holding that a capital defendant does not have a right to a comparative proportionality review on appeal. Id.
In this regard, Pulley relied on Jurek, which upheld a Texas death sentence against a challenge to the lack of a statutory comparative proportionality review. Pulley, 465 U.S. at 48-49, 104 S.Ct. 871. Pulley described that a proportionality review in Jurek "would have been constitutionally superfluous” where the Texas statute itself included safeguards to ensure that death sentences were "evenhanded, rational, and consistent,” including that there must be at least one statutory aggravating circumstance before a death sentence can be considered. Id. at 48, 104 S.Ct. 871 (citing Jurek, 428 U.S. at 276, 96 S.Ct. 2950).
Here, the FDPA has safeguards — similar to the factors discussed in Jurek — for application of the death penalty: the requirement of gateway intent factors, and statutory aggravating factors. See 18 U.S.C. §§ 3591(a)(2), 3592(b)(c), & 3593. That is, the statutory scheme itself is a "means to promote the evenhanded, rational, and consistent imposition of death sentences.” Pulley, 465 U.S. at 49, 104 S.Ct. 871. The statute is a means of "ensur[ing] proportionality,” United States v. Umana, 750 F.3d 320, 355, 2014 WL 1613886, at *28 (4th Cir. Apr. 23, 2014), by limiting the death penalty "to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution.” Id. (quoting Kennedy v. Louisiana, 554 U.S. *1074407, 420, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008)). The "eligibility phase ... channels] and limit[s] the jury’s discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition.” Buchanan v. Angelone, 522 U.S. 269, 275-76, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998).
And the Ninth Circuit has specifically upheld the constitutionality of the FDPA in this regard, rejecting that the FDPA is unconstitutional despite a lack of proportionality review even if it includes non-statutory aggravating factors. See Mitchell, 502 F.3d at 980 (joining other circuits in rejecting the view that the Constitution requires proportionality review when a jury is allowed to consider nonstatuto-ry aggravating factors, leading to a danger that the death penalty will be imposed arbitrarily or capriciously).
. See also United States v. Sampson, 486 F.3d 13, 45 (1st Cir.2007) (rejecting the argument that “a trial court may not restrict the presentation of relevant evidence offered in mitigation of a possible death sentence,” reasoning that "[tjhis argument cannot be literally true; if it were, a capital defendant would have an unrestricted license to introduce the most confusing or misleading evidence as long as it was marginally relevant”) (citations omitted).
. These cases also conclude that, even if comparative proportionality evidence is marginally relevant, such evidence is inadmissible under § 3593(c) because its probative value is limited as compared to a high danger of confusing issues and misleading the jury. See, e.g., Taylor, 583 F.Supp.2d at 935-36 (“Such information has no probative value and would confuse and mislead the jury with irrelevant information.”) (citations omitted); Sampson, 486 F.3d at 44-45 (upholding the district court’s exclusion of proportionality evidence from Kevin McNally under § 3593(c)); Regan, 221 F.Supp.2d at 660-61 (concluding that proportionality evidence relating to other espionage cases could not be used as a mitigating factor because it lacked probative value and there was a significant danger of confusing the issues and misleading the jury). The court agrees with the persuasive analysis in those cases, and also concludes that, even if comparative proportionality evidence is relevant, it is nevertheless inadmissible here as confusing and misleading.
. To avoid any confusion, this ruling does not preclude Defendant from making the entirely distinct argument that Delilah Williams will not be punished by death for “equally culpable” conduct in the same crime. See 18 U.S.C. § 3592(a)(4). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224303/ | ORDER
DONALD W. MOLLOY, District Júdge.
The United States Fish and Wildlife Service (“Service”) listed the Canada lynx as a threatened species under the Endangered Species Act (“ESA”) in March 2000.1 65 Fed.Reg. 16052 (Mar. 24, 2000). Once a species is listed as threatened, the Service must designate the critical habitat of that species and develop and implement a recovery plan. 16 U.S.C. § 1533(a), (f). At the time of listing, the Service did not designate critical habitat for the lynx. Alliance for the Wild Rockies v. Lyder, 728 F.Supp.2d 1126, 1129 (D.Mont.2010). And since that time, the designation of lynx critical habitat has been repeatedly litigated. (See Doc. 21 at 5-7 (discussing the history of that litigation).) To date, no recovery plan has been completed.
This is an action for declaratory and injunctive relief pursuant to the ESA and the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. Plaintiffs are various environmental organizations that request an order declaring that the Service’s delay in preparing a recovery plan for the lynx is unreasonable and compelling the Service to abide by a set deadline. (Doc. 18.) Defendants concede that the development and implementation of a recovery plan is a mandatory duty and that a recovery plan for the lynx has not been developed or implemented, (Doc. 21 at 9, 29); however, Defendants have filed a cross-motion for summary judgment (Doc. 21) on the grounds that the delay is not unreasonable. For reasons discussed below, Plaintiffs’ motion for summary judgment is granted.
Legal STANDARD
A party is entitled to summary judgment if it can demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248, 106 S.Ct. 2505.
Analysis
I. Plaintiffs have standing to pursue their claim.
Standing encompasses three elements: (1) injury in fact; (2) causation; and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). An organizational plaintiff has standing to sue if its members would have standing to sue in *1080their own right, the “interests at stake are germane to the organization’s purpose,” and the members’ participation is not necessary to the claim or the relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Plaintiffs have shown all three factors of standing. See Lujan, 504 U.S. at 562-563, 112 S.Ct. 2130 (“[T]he desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing.”); Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir.2008) (“Plaintiffs alleging procedural injury must show only that they have a procedural right that, if exercised, could protect their concrete interests.” (emphasis in original) (internal quotations omitted)).
II. The Service’s delay in developing and implementing a recovery plan for the lynx is unreasonable.
“[T]he ESA does not itself specify a standard of review of its implementation, [so courts should] apply the general standard of review of agency action established by the [APA].” Or. Nat. Resources Council v. Allen, 476 F.3d 1031, 1036 (9th Cir.2007). The APA authorizes a reviewing court to “compel agency action ... [that is] unreasonably delayed.” 5 U.S.C. § 706(1). To determine whether an agency’s inaction amounts to an “unreasonable delay,” courts balance six factors (“TRAC factors”):
(1) the time agencies take to make decisions must be governed by a “rule of reason”[;] (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason [;] (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake [;] (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority!;] (5) the court should also take into account the nature and extent of the interests prejudiced by the delay[;] and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.
Brower v. Evans, 257 F.3d 1058, 1068 (9th Cir.2001) (citing Telecomm. Research & Action v. FCC (TRAC), 750 F.2d 70, 80 (D.C.Cir.1984)). Applying these factors here, the Service must submit a firm deadline to complete lynx recovery planning, unless the Service “finds that such a plan will not promote the conservation of the [lynx].” 16 U.S.C. § 1533(f)(1).
The ESA directs the Service to prepare a recovery plan for listed species but does not include a timetable or indication of the speed with which the recovery plan should be developed. Id. As a result, the reasonableness of the time it takes the Service to develop a recovery plan is governed by a “rule of reason” and not by statute. Brower, 257 F.3d at 1068. “Absent a precise statutory timetable or other factors counseling expeditious action, an agency’s control over the timetable of a rulemaking proceeding is entitled to considerable deference.” Sierra Club v. Gorsuch, 715 F.2d 653, 658 (D.C.Cir.1983). “Although there is no per se rule as to how long is too long, inordinate agency delay ... frustrate^] congressional intent by forcing a breakdown of regulatory processes.... [T]he reasonableness of the delay must be judged in the context of the statute which authorizes the agency’s action.” In re Intl. Chemical Workers Union (“Intl. Chem.”), 958 F.2d 1144, 1149 (D.C.Cir.1992) (internal quotations omitted).
*1081In this case the Service has developed and published its own timeline for completing a recovery plan. SAR 196.2 The Service’s guidelines suggest that a recovery outline for the listed species be submitted to the Regional Office within 60 days of listing; that the recovery outline be approved within 90 days of listing; that a draft recovery plan be prepared for public comment and peer review within 18 months of listing; and that a final recovery plan be issued within 30 months of listing. AR 392. This internal timeframe is not binding on the Service. W. Radio Servs. Co. v. Espy, 79 F.3d 896, 902 (9th Cir.1996). However, the interpretations and opinions of an agency “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Under this timeline, a recovery plan should have been in place in September of 2002, or twelve years ago.
The Service maintains that development of a recovery plan is contingent on publication of the final rule for lynx critical habitat, AR 998, and the Service’s work on lynx critical habitat has been dogged by litigation at every turn, (see Doc. 21 at 5-7). It insists the lynx is a low priority species because there is a high potential for recovery and a low degree of threat, AR 198, 1190 and that the Service must balance the needs of the lynx against the needs of twenty other species that also lack recovery plans but have higher priority numbers, AR 348, 1178. However, the stutter-step approach taken by the Service raises the concern — even the certainty— that if a deadline is not in place, a new impediment will continually prevent the development of a recovery plan for the lynx in contravention of the ESA. The Service cannot delay its statutory obligation indefinitely. See In re Cal. Power Exch. Corp., 245 F.3d 1110, 1125 (9th Cir.2001) (citing cases involving unreasonable delays of four, eight, and ten years); Nader v. F.C.C., 520 F.2d 182, 206 (D.C.Cir.1975) (nine years should be enough time for any agency to decide almost any issue). At some point the agency needs to meet the obligations imposed by Congress when it enacted the law.
However, whether an agency’s delay is unreasonable “cannot be decided in the abstract, by reference to some number of months or years beyond which agency inaction is presumed to be unlawful, but will depend in large part ... upon the complexity of the task at hand, the significance (and permanence) of the outcome, and the resources available to the agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C.Cir.2003). As a result, it is necessary to “consider the effect of expediting delayed action on agency activities of a higher or competing priority.” Brower, 257 F.3d at 1068.
The Service claims that it will begin recovery planning after publication of a final critical habitat rule, arguing it does not have the human or financial resources to complete both tasks at once. AR 998, 346. Even in the face of competing priorities, however, the Service’s justifications for the delay “become less persuasive the longer the delay continues.” Intl. Chem., 958 F.2d at 1150. Here, the Service has repeatedly stated that it will initiate recovery planning for the lynx. See AR 998 (will initiate in 2007); AR 507 (will initiate in 2011); AR 204, 345 (will initiate by close *1082of 2014). Based on the Service’s most recent self-declared deadline, requiring completion of recovery planning on its represented timeframe will not bias its ability to balance competing interests. See Public Citizen Health Research Group v. Brock, 823 F.2d 626, 629 (D.C.Cir.1987) (ordering agency to adhere to own schedule); Ctr. for Biological Diversity v. Bureau of Land Mgt., — F.Supp.2d -, -, 2014 WL 1347467, *12 (N.D.Cal.2014) (adopting the deadline identified by the Service).
Conclusion
The history of this case causes a certain skepticism about the agency’s self-declared deadlines for initiating recovery planning. Consequently, the Service will be bound by a deadline for recovery planning unless it finds and documents that such a plan will not promote the conservation of the lynx. Any additional delay will be considered in violation of this Order.
Accordingly, IT IS ORDERED that Plaintiffs’ motion for summary judgment (Doc. 18) is GRANTED. Defendants must file a proposed schedule for completion of recovery planning within thirty (30) days. Once filed, Plaintiffs have fifteen (15) days to file objections to the proposed schedule. Following review of these submissions, the Court will set a firm schedule by which the Service must comply.
IT IS FURTHER ORDERED that Defendants’ cross-motion for summary judgment (Doc. 21) is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ motion for leave to file supplemental briefing (Doc. 26) is DENIED as MOOT.
. A “threatened species” is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20).
. The parties have stipulated that the Administrative Record (“AR”) and the Supplemental Administrative Record ("SAR”) on file with this Court contain the undisputed material facts. (Docs. 20 and 22.) | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224304/ | *1083TABLE OF CONTENTS
ORDER PAGE
Order Adopting Puget Sound Salmon Management Plan (10/17/85) 1083
Order Re Hood Canal Management Plan (7/3/86) 1103
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 81, 1986)
ORDER ADOPTING PUGET SOUND SALMON MANAGEMENT PLAN
(sub no. 85-2)
(October 17, 1985)
WALTER E. CRAIG, District Judge.
On August 31, 1977, this court approved a Puget Sound Salmon' Management Plan that had been jointly developed by the affected parties. 459 F.Supp. 1020, 1107 (W.D.Wash.1978), subsequently modified October 11, 1978. The plan was to be periodically reviewed by the parties, and commencing in May, 1982, the parties or any of them could propose modifications to the court. On June 1, 1982, the court granted a motion continuing the plan until further order of the court so as to give the parties more time to develop a replacement plan.
The Puget Sound Tribes and the Washington Department of Fisheries have reached agreement on a new plan for managing the Puget Sound salmon runs. The new plan is based upon the experience the parties have had in managing Puget Sound Fisheries, since the 1977 plan was enacted. The new plan includes provisions for continued annual review and possible modifications as well as provisions for the development of more detailed regional plans by agreement of the affected parties.
The State of Washington, the Puget Sound Area tribes and the United States have asked this court to approve the new plan and incorporate its provisions as an order of the court.
The court has received and reviewed the proposed new plan. After a review of the plan, the court has amended paragraph 11.1.4 at page 29 by adding the following sentence:
“However, nothing herein is to be construed as relieving any party of any obligation under any law or any administrative or judicial order to timely furnish any information or data to any state, federal, or international governmental body or officer.”
The court adopts the attached May 15, 1985 Puget Sound Salmon Management Plan, as amended by the court, as an order of this court to replace the Memorandum Adopting Salmon Management Plan, as modified and set out at 459 F.Supp. at 1107-1113. The parties are directed to implement the plan consistent with the Pacific Salmon Treaty and its implementing legislation (P.L. 99-5) and the Salmon and Steelhead Conservation and Enactment Act, 16 U.S.C. 3301 et seq. Other previous orders of this court are changed only to the extent they are explicitly modified by the terms of the attached Plan and then only with respect to their application to runs covered by this Plan.
PUGET SOUND SALMON MANAGEMENT PLAN
*1084TABLE OF CONTENTS
Page
1 PREAMBLE.1084
2 DEFINITIONS .1086
3 ESCAPEMENT.1088
4 EQUILIBRIUM BROOD PROGRAM.1089
5 TECHNICAL AND MANAGEMENT REPORTS AND DOCUMENTS.1090
6 SCHEDULES.1093
7 MANAGEMENT PERIODS.1094
8 TEST AND EVALUATION FISHERIES.1094
9 HARVEST RATES.1096
10 ALLOCATION OF HARVEST.1095
11 COORDINATED INFORMATION SYSTEMS.1096
12 TIMING AND CONTENT OF FISHING REGULATIONS.1098
13 REGIONAL MANAGEMENT PLANS.1099
14 DISPUTE RESOLUTION.1099
1.0 PREAMBLE
1.1 The purpose of this plan is to establish guidelines for management of salmonid resources originating in or passing through Washington waters from the mouth of the Strait of Juan de Fuca eastward (Puget Sound) only. The parties hereto, all Puget Sound treaty tribes and the Washington Department of Fisheries, shall manage from the premise that steel head and salmon fisheries are intimately related, although it is recognized that the Washington Department of Fisheries does not have jurisdiction over steel head fisheries. The parties agree to a philosophy of cooperation in implementing management programs to maintain, perpetuate and enhance the salmonid resources.
1.2 This plan is intended to ensure that treaty fishermen and non-treaty fishermen, subject to their respective regulatory authorities, shall be afforded the opportunities to harvest their shares as determined in United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff'd 520 F.2d 676 (9th Cir.1975), cert. denied 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), aff'd sub nom. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) and other orders under the court’s continuing jurisdiction.
1.2.1 The parties have developed this plan with the objectives of promoting the stability and vitality of the treaty and non-treaty fisheries of Puget Sound and of steadily improving the practical and technical basis for management of each of the Puget Sound fisheries.
1.3 The parties agree to enact and recommend for enactment by the Pacific Fishery Management Council, appropriate regulations for the ocean salmon fishery that will provide for adequate escapement of salmon into Puget Sound waters to achieve the goals and purposes of this plan.
1.4 The parties shall advocate and recommend to the appropriate *1085governmental and regulatory entities, international agreements to reduce foreign interceptions of salmonids originating from Puget Sound.
1.5 This plan shall remain in effect from the date of the order approving it until modified by agreement of the parties or order of the court.
In order to implement changes for the following year, modifications to this plan must be proposed in writing to other parties by October 1 and either be agreed to by a signed stipulation of all parties filed with the court by December 31 or be entered as an order of the court by December 31. Unless both the October 1st and December 31st deadlines are met, this plan shall continue in effect for the following year. Disputes regarding modifications of the plan must go through the Dispute Resolution process before being filed with the court.
1.6 Where action of the parties is required in this plan, failure to act or to reach agreement shall be resolved as provided in Section 14.
1.7 When adopted by the Court, this plan supercedes and replaces the Memorandum Adopting Salmon Management Plan, 459 F.Supp. at 1107, as extended by the Order of June 1, 1982 (Docket Number 8421); it also supplements, and where inconsistent, modifies the Order on Certain Questions Re Salmon Fisheries Management, dated April 13, 1976, 459 F.Supp. at 1069, which is hereby extended and shall remain in effect until further order of the Court, provided, that nothing in this plan is intended to modify or supercede the answer to Question No. 2 as set forth in that Order. This plan also supplements and where inconsistent modifies the Order for Program to Implement Interim Plan, 459 F.Supp. at 1035, the Orders Establishing Fisheries Advisory Board and Prescribing Procedures for State Emergency Regulations, 459 F.Supp. at 1061, and Order Re Notification and Effective Date of Emergency Regulations dated August 29, 1980, Docket Number 7158. All orders not expressly modified remain in effect.
1.8 The parties agree that the permit processes of the parties will remain intact. For any project or activity which has been agreed upon by the parties, the issuance of a Washington Department of Fisheries permit will be automatic. Disputes which might arise over issuance of a permit will be submitted to the dispute resolution process described in Section 14.
1.9 All fisheries, both recreational and commercial, are covered by the provisions of this, plan unless specifically indicated otherwise. It is the Intent of the parties that recreational fisheries be managed consistent with the standards and principles set forth in this plan, and particularly that the recreational fishing regulations adopted by the Washington Department of Fisheries shall be made in accordance with the escapement and allocation provisions of this plan. However, it is recognized by the parties that because of the na*1086ture of recreational fisheries, they cannot always be adjusted in mixed-stock marine management areas as readily in season or in the same time frame as commercial fisheries. Recreational fisheries generally rely on published annual regulations with few in-season adjustments, particularly in marine waters. Resolution of pre-season Puget Sound recreational marine and freshwater management conflicts and agreement on annual recreational fishing plans and objectives must be reached according to the schedules as outlined in Section 6, with consideration for maintaining stability.
2.0 DEFINITIONS
Except where the context clearly requires otherwise, the following terms used in this plan have the following meanings:
Adult Fish
A mature salmonid returning to spawn.
Affected Party
A party whose fisheries will be affected by a proposed action under this plan.
Allocation Equivalent
The standard unit of measure used to determine the number of adult fish that would return to treaty fishing areas in the absence of non-treaty fishing. The allocation equivalent run size shall be the net result of accounting for natural mortalities, transfer of harvest to foreign fisheries, and direct fishery-related wastages which are not reflected in actual landings.
Allocation Unit
A management unit or group of management units with similar timing for which harvest scares are calculated.
Equilibrium Brood Program
The standard mode of operation for existing facilities/functions, associated with intervention in one or more of a salmon’s life history stages.
Escapement
That portion of a run that is not harvested and escapes to natural or artificial spawning areas.
Evaluation Fishery
A commercial fishery conducted for the purpose of acquiring technical or management Information.
Future Brood Planning Report
The annual expression of the equilibrium brood program as it pertains to the coming year’s run of salmon.
Management Period
The time interval during which regulatory actions are taken to meet the escapement requirements for a management unit or allocation requirement for an allocation unit, taking into account catches (actual or expected) of the unit(s) made outside its management period. Management periods are specific to each management unit (or aggregate of units) and to each fishing area through which the unit(s) passes.
Management. Unit
A stock or group of stocks which are aggregated for the purpose of achieving a desired spawning escapement objective.
Maximum Sustained Harvest (MSH)
The maximum number of fish of a management unit that can be harvested on a sustained basis, measured as the number of fish that would enter fresh water to spawn in the absence of fishing after accounting for natural *1087mortality. MSH is intended to mean maximum sustained harvest to Washington fisheries.
MSH Escapement
The specific escapement for a management unit necessary to provide MSH under average environmental conditions.
Natural Spawning Area
An area which is or may be utilized by spawning salmon and in which egg deposition and fertilization occur naturally.
Parties
The state and the 17 Puget Sound tribes together make up the parties to this plan.
Primary Management Unit
A stock or group of stocks for which a specific spawning escapement goal is established with the intention of managing all impacting fisheries to meet that goal.
Prior Interceptions
Harvest of a run by fisheries outside of its region of origin or immature fish within their region of origin computed separately for treaty and non-treaty fishermen.
Region of Origin
A geographic area from which an allocation unit originates. The following geographic areas are recognized regions of origin:
(1) Strait of Juan de Fuca (tributaries)
(2) Bellingham/Samish Bays — Nook-sack — Samish Rivers
(3) Skagit
(4) Stillaguamish-Snohomish
(5) South Puget Sound, south of Snohomish System
(6) Hood Canal
(7) Canada
Run
A stock or group of stocks identified for fishery management purposes.
Run Size
The number of fish in an allocation unit, management unit, stock or any aggregation thereof.
Salmonid
The following anadromous species of the family Salmonidae which are native to the United States v. Washington Case Area:
Oncorhynchus tshawytscha (chinook, king, spring, tyee, blackmouth salmon)
Oncorhynchus kisutch (coho, silver, silverside, hooknose salmon)
Oncorhynchus nerka (sockeye, red, blueback salmon)
Oncorhynchus keta (chum, dog, keta salmon)
Oncorhynchus gorbuscha (pink, humpback, humpy salmon)
Salmo gairdneri (Steelhead)
Secondary Management Unit
A stock or group of stocks for which escapement is that which occurs primarily as a result of not being caught in fisheries directed at commingled primary units.
State
Washington Department of Fisheries (WDF)
Stock
An anadromous salmonid population of a single species migrating during a particular season to a specific fish production facility and/or to a freshwater system which flows into saltwater.
Test Fishery
An agreed-upon fishery conducted on a limited basis for the purpose of acquiring technical or management information. Any fish taken in test *1088fisheries may not be sold for personal profit.
Tribes
All Puget Sound treaty tribes: Lum-mi, Nooksack, Suquamish, Swinomish, Upper Skagit, Sauk-Suiattle, Tulalip, Stillaguamish, Muckleshoot, Puyallup, Nisqually, Squaxin Island, Skokomish, Port Samble Klallam, Jamestown Klallam, Lower Elwha Klallam, and Makah.
3.0 ESCAPEMENT
3.1 Decisions made by the parties concerning stock enhancement, habitat protection, and harvest management programs and policies recognize that the escapement of natural and hatchery management units must be preserved and protected sufficiently to ensure their perpetual existence and maximize the benefits derived from their protection. In order to provide a desired level of future harvest, it is necessary to prevent the capture of a certain portion of the run, so that ■ these uncaught fish can spawn and produce fish for future use. An escapement goal must be evaluated primarily according to whether it achieves these purposes.
3.2 The parties shall determine and agree as to primary and secondary management unit status. In making this determination, at least the following factors should be taken into account: (a) harvest management conflicts between harvest rates appropriate to harvest fish returning to hatcheries and fish returning to natural spawning areas simultaneously; (b) the management history pertinent to the stocks; (c) the present or future production potential of the stocks; (d) unique characteristics of the stock with respect to behavior, physiology, or morphology which might be desired for future stock enhancement; (e) the technical feasibility of achieving escapement allowances in the short and/or long term; (f) legal obligations of the parties; (g) substantial intra- and inter-specific conflicts; and (h) impacts on existing fisheries of attempting to reach MSH escapement level according to a set time schedule. The primary or secondary status of a unit may be changed only by agreement of the parties.
3.3 Escapement goals for fish returning to hatcheries and natural spawning areas shall be agreed upon on a management unit basis. The parties shall reach agreement as to what comprises each management unit.
3.4 For primary management units returning to hatcheries, escapement goals shall be those numbers of spawners needed to meet artificial production programs that are agreed to in accordance with the guidelines in Section 4 of this plan. For primary management units returning to natural spawning areas, the, escapement goal shall be the maximum sustained harvest (MSH) escapement level.
3.5 Exceptions to primary management unit escapement goals may be allowed by agreement of the affected parties. When considering any exception, both long- and short-term costs and benefits must be adequately and openly quantified and considered to the extent possible. Potential exceptions include the following:
(1) Test fisheries
(2) Evaluation fisheries
*1089(3) Ceremonial fisheries
(4) Management units for which a specific rebuilding schedule has been established
(5) Mixed-stock fisheries such as immobile fisheries in mixed-stock areas, recreational fisheries directed at maturing fish, fisheries outside management periods, and fisheries with unavoidable inter- and/or in-tra-specific harvest conflicts between primary management units
(6) Any other circumstance that is agreed to by all affected parties
3.6 The MSH escapement level will be estimated and documented annually for each management unit using the best available data and method.
3.7 If no reasonably accurate estimate of the MSH escapement level exists, the parties will employ the best agreed-to investigative technique to determine MSH. The investigative method used by the parties to better define the MSH escapement level must not intentionally result in escapements above or below the current best estimate of the MSH escapement level unless this escapement is necessary to the investigation.
3.8 The parties may agree to establish an escapement level for a primary management unit below which no exceptions will be allowed under any circumstances, unless expressly declaring that management unit secondary.
3.9 Escapement goals may be established for secondary units by agreement of all affected parties, and shall be based on expected escapement resulting from anticipated harvest patterns in all fisheries, including those fisheries that may occur subsequent to separation from primary units.
3.10 Escapement goals shall be established annually by agreement between the parties within the time frame outlined in Section 6 of this plan.
3.11 Except as otherwise agreed by all affected parties, escapement goals established under this section shall not be changed during the season.
4.0 EQUILIBRIUM BROOD PROGRAM
4.1 The affected parties shall reach agreement in a document on an equilibrium brood program, in conjunction with the development of the regional plans (Section 13).
4.2 The equilibrium brood document shall provide a description of the agreed-to equilibrium brood program. This document will express a description of each facility and its functions, including at least the following:
I. Operating Entity
II. Station/Facility Name
III. Station/Facility Description (characteristics)
IV. Species
Activity (transfer, release, etc.) Number
Type (egg, fry, fingerling, etc.)
Size of Release/Transfer
Time of Release/Transfer
Preferred Stock
Destination (disposition of fish)
V. Station Contingency Plans (allowable operation alternatives)
VI. Comments/Footnotes
4.3 The equilibrium broad document as it exists on November 1 (or other *1090agreed-to date) provides the basis for the development of the future brood planning report, as outlined in Sections 5 (status reports) and 6 (schedules) of this plan.
4.4 No modifications may be made to the equilibrium brood program without prior agreement of the affected parties. Notice of proposed modification shall be provided at least 30 days prior to the proposed action, unless otherwise agreed to by the affected parties.
4.5 Changes or additions to the equilibrium brood program must be compatible with the management of primary management units and with the rights of the affected parties. Any party proposing a modification to the equilibrium brood program shall provide the following information:
I. Name of Project
II. Originating Entity
III. Purpose
IV. Analysis of benefits and costs, including at least consideration of species interactions, effects on genetic stock integrity, and cost-effective mitigation of adversely affected stocks
IV. Analysis of benefits and costs, including at least consideration of species interactions, effects on genetic stock integrity, and cost-effective mitigation of adversely affected stocks
V. Facility Characteristics
A. Location
B. Design
1. Water Source
2. Anticipated Watershed Modification
VI. Species
Number
Activity (transfer, release, etc.)
Type (egg, fry, fingerling, etc.)
Size of Release/Transfer
Time of Release/Transfer
Preferred Stock
A. Timing
B. Disease History
C. Source
Destination
VTI. Harvest Management Strategy
A. Harvest Area
B. Harvest Time
C. Expected Exploitation Rate
D. Conflicts With Other Stocks or Fisheries
E. Allocation Implications
F. Number of Adults Needed for Escapement
VIII. Station Contingency Plans (addressing VI and VII)
IX. Other Comments (marks, etc.)
5.0 TECHNICAL AND' MANAGEMENT REPORTS AND DOCUMENTS
The timely exchange of Information and management recommendations is vital for the preparation of management options as well as for the review and performance auditing of the management actions undertaken by the parties. Management reports and documents prepared by the parties facilitate the management process by: a) presenting data, methods, analyses, and recommendations in an organized fashion; b) identifying areas of disagreement; and c) providing a basis from which the parties may proceed to technical and policy agreements. Annually, the parties shall provide the reports and documents listed below *1091within the time frame established in Section 6 of this plan.
5.1Basic Resource Management Documents
Certain components of Puget Sound salmon management form the basis for specific annual management plans and are not expected to change significantly from year to year. Basic resource management documents describe these components separately from the detailed pre-season planning for a specific season, The parties shall jointly develop the following basic resource management documents and shall reach agreements on any modifications to these documents on an annual basis in accordance with the schedule in Section 6. The parties shall also reach agreement on the exact form of these documents (e.g., they may consist of annual written reports, computer files, a single source document with annual amendments, etc.), and which if any documents may be combined for simplicity.
5.1.1 One basic resource document shall be the equilibrium brood document described in Section 4 of this plan. Information to be included, procedures for modification, and schedules for reaching agreement are found in Sections 4 and 6.
5.1.2 A second basic resource document shall contain data and analyses for the establishment of management periods as described in Section 7. This should include the methods used to analyze run timing and should address general approaches to account for overlaps and gaps in run timing.
5.1.3 A third basic resource document shall contain the best current estimate of MSH escapements for management units, required in Section 3, and the data, analyses and methods used to establish these estimates. This document shall also contain agreed-upon methods for estimation of actual spawning escapements achieved each season.
5.1.4 A fourth basic resource document shall contain agreed-upon methods for conducting postseason run reconstruction. This document shall detail methods by area for post-season estimation of total run size for each Puget Sound management unit.
5.1.5 The parties may, by agreement, formulate other basic resource documents.
5.2 Pre-Season Management Reports
The ultimate goal of the pre-season planning process is to develop a fisheries management strategy acceptable to all parties. For each species, the parties shall jointly develop, in accordance with Section 6 of this plan, the following pre-season reports. The parties, by agreement, may choose to combine any of these reports to simplify the report generation process.
5.2.1 One pre-season report shall provide an assessment of the status of all management units which return and/or are harvested in Puget Sound and justifieation(s) for management recommendations. The following topics shall be included: (1) recommended management periods for each run by management area; (2) pre-season run size forecasts for each *1092management unit, including such background information as brood year escapement to natural spawning areas, quantities of off-station plants, and releases from hatcheries; (3) an outline of the methods and analyses used to compute the forecasts, along with quantitative measures of the degree of precision or confidence that can be applied to the forecasts; (4) recommended spawning escapement goals for each management unit and methods and rationale to determine them; (5) predicted levels of harvest and/or har-vestable numbers, including expected incidental catches; (6) quantitative forecasts of prior interceptions and remaining allocations for each allocation unit and all background information and estimation methods used; (7) harvest management recommendations and justification for each management area covered by this plan; and (8) an outline of anticipated test and evaluation fishery needs.
5.2.2A second pre-season report shall be the future brood planning report which will contain the following Information for each facility in the equilibrium brood document: (1) escapement needs and details of the utilization of adult spawners by species and stock, and (2) details of the rearing and release of juveniles by species and stock, transfers between facilities, marks to be applied, release location and schedule, and age, size and numbers of juveniles at release. In addition, this report shall indicate any anticipated deviations from the equilibrium brood document.
5.2.3A third pre-season report shall contain methods to provide in-season estimates of run size and allocation. It shall also include methods to apportion catches from areas having a mixture of stocks from two or more regions of origin. Preseason forecasts have often been found to be unreliable. In-season estimates of run sizes obtained during the passage of a run are direct measures of the quantity of fish present and are generally more accurate than pre-season forecasts. In-season run size estimates shall be made for every run unless the par ties agree that a usable updating method is not available. Topics in this report shall include: (1) a description of the quantitative methods (models) to be used for in-season run size estimation, the data or other information on which these models are based, quantitative indications of the reliability of the models, expected impact on escapements and/or allocations, and limitations on the use of the models; (2) methods for the in-season adjustment of management periods; (3) methods for the in-season adjustment of allocations; and (4) methods for apportioning mixed-stock catches to each management unit.
5.3Post-Season Reports
A post-season audit report is necessary in order to permit an assessment *1093of the parties’ annual management performance- in achieving spawning escapement, enhancement, harvest and allocation objectives. A post-season report will be jointly prepared by the parties. Differences among the parties in data or information interpretation shall be documented in this report. This report shall be prepared in accordance with the schedule in Section 6 and will generally include at least two years of information: preliminary data for the immediately preceding season and final data for prior years. The parties are encouraged to reach agreement on the various data and analyze components of this report as data become available throughout the year.
6.0 SCHEDULES
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*1094Editor’s Note: The preceding image contains the references for footnotes: 1, 2.
7.0 MANAGEMENT PERIODS
7.1 Proposed management periods shall be included in management reports developed under Section 5 of this Plan and agreed upon in accordance with time schedules of Section 6 of this Plan.
7.2 Adjustments of management periods may occur in season by agreement of the affected parties.
7.3 Management periods shall generally be based on the central 80% of the run timing of a management unit or group of management units in a management area unless otherwise agreed to by the parties.
7.4 Overlaps and gaps in management periods present fisheries managers with problems which will be unique to each situation and will vary as a result of such things as run timing patterns, fish size, run sizes and management goals. As a result, a single guideline to handle these problems is not feasible. Many overlaps where one or more species need protection may be handled by gear restrictions. In other cases, area or time restrictions may be used by the parties to achieve management goals during the overlap. The parties should reach agreement on methods to address overlap and gap situations on a case-by-case basis. Adjustments of Section 7.5 of this plan should be made after overlaps and gaps are addressed.
7.5 Management periods may be adjusted to begin on the nearest Sunday and end on the nearest Saturday to simplify processing of regulations.
8.0 TEST AND EVALUATION FISHERIES
Test and evaluation fisheries are valuable and necessary tools of fisheries managers. The use of these fisheries for data collection and other management needs is encouraged. The parties agree to jointly improve the methodologies used for test and evaluation fisheries.
8.1 General outlines of anticipated test and evaluation fisheries needs shall be included in draft, and final pre-season management reports developed under Section 5 of the plan.
8.2 Uses of test and evaluation fisheries include: maintenance of data continuity throughout a run; collection of fishing gear oriented data; collection of data for population parameter estimates (e.g., species and stock composition, run timing, abundance); and such other uses the parties agree are appropriate.
8.3 Certain criteria shall be evaluated before these proposed test and evaluation fisheries are implemented. These include, but may not be limited to: (1) whether the information to be collected is needed to meet in-season or general management needs; (2) whether the fishery will significantly impact escapement and/or allocation objectives; and (3) whether the pro*1095posed fishery is an appropriate method for collection of the desired data.
8.4 All test fisheries shall be monitored by fisheries management agency personnel (tribal or state, as applicable). The extent of monitoring necessary in any given test fishery should be determined on an individual test fishery basis. Any fish taken in test fisheries may not be sold for personal profit.
8.5 The information collected in a test fishery is to be made available to all parties in a timely manner.
9.0 HARVEST RATES
9.1 The following rules shall govern harvest management in all salmon fisheries, except as otherwise agreed by all affected parties.
9.2 Harvests of salmon in mixed-stock catch areas shall ensure that the weakest primary management unit is protected.
9.3 The maximum harvest rate for a management unit shall be defined as follows:
[[Image here]]
where,
H= the maximum harvest rate
S= the numerical abundance of a defined management unit based on the best available estimate of a run size (see Section 5)
E= the escapement goal applicable to the management unit.
9.4 The maximum harvest rates in each catch area shall be determined separately for each primary management unit, taking into account catches of that unit that have occurred or are expected to occur. Of the harvest rates computed for each catch area, the lowest rate shall prevail in the management of the area during the course of the run, provided, however, that all affected parties may agree to a lower harvest rate.
9.5Harvest rates for each catch area shall be agreed upon between the state and all affected tribes on the basis of escapement goals agreed upon by the parties.
10.0 ALLOCATION OF HARVEST
10.1 Shares shall be computed separately for each species and region of origin, unless otherwise agreed by all affected parties.
10.2 Both the State and the tribes recognize that fisheries management is not sufficiently precise to provide a prescribed harvest allocation between treaty fishermen and non-treaty fishermen for every allocation unit each year. Therefore, if treaty or non-treaty fishermen are not provided the opportunity to harvest their share of any given allocation unit as provided by the orders of the federal court, deficiencies in numbers of fish shall be made up as provided in subsections 10.4and 10.5, without any claim being necessary.
10.3 The parties agree to consider annually methods that provide management flexibility to achieve fair sharing of fish in ways that will minimize or eliminate the need for equitable adjustments. Methods to be considered include, but are not limited to, special fisheries, adjustments across regions or species, hatchery fish agreements, production increases or changes, stratified allocations, allocation of species separated by timing, and management refinements. The methods to be employed must be agreed to by all affected parties; they shall be decided upon *1096annually on a regional basis (except where more than one region is affected).
10.4 Shares will be calculated annually post-season, using preliminary data, by no later than one month after the date of the post-season audit report. Deficiencies in shares shall be adjusted annually unless neither party exceeded its share by more than 5% of the total of both parties’ shares. Every four years an automatic adjustment will be made using final hard data as they become available. Provided, parties may agree to different arrangements on a regional basis.
10.5 Adjustments calculated pursuant to subsection 10.4 shall be made during the next year, or in as few years as possible, provided that repayment of a deficit in any one year shall be either:
A) 15% of that year’s share of the party owing the adjustment,
or
B) 25% of the total deficit that was due,
whichever is greater. However, there may be either a greater or lesser repayment by agreement of the parties.
10.6 Any dispute over the existence, extent or implementation of a deficiency or imbalance shall be subject to the dispute resolution process of Section 14, except that whether or not to use the methods suggested in subsection 10.3 shall be based solely on agreement of all affected parties.
10.7 Fish taken in test fisheries pursuant to Section 8 do not count in either party’s share.
10.8 Catches made in Puget Sound marine waters having a mixture of stocks from two or more allocation units will be apportioned in accordance with methods established pursuant to Section 5.2.3.
11.0 COORDINATED INFORMATION SYSTEMS
Coordinated information systems are the means by which the parties compile, exchange, and utilize fisheries resource management information. The coordinated information system shall contain resource data and information required for coordinated fisheries resource management. This information may be broadly classified into three categories.
11.0.1 Basic resource data, including both current and historic records of: catch, effort, spawning Information, production, tagging experiments,' age distributions, regulations, etc. These data may be summarized in some convenient form but are generally not analytically derived, results.
11.0.2 Analytical tools and procedures consisting of methods used for run forecasting, updating, catch allocation, regulation, evaluation, escapement estimation, and other resource management tasks.
11.0.3 Biological parameters and analytical results, including resource inventory Information, mortality rates, etc.
11.1 Coordinated Information systems may be established by mutual agreement and include standards and procedures for the input and modification of fisheries resource management information. The following factors are essential components of standards and procedures.
11.1.1 Detailed and consistent documentation is fundamental to the utility of fishery resource management information. This documentation is necessary to ensure that *1097quality, consistency, and validity of information can be assessed by all parties. This documentation should include criteria useful in discriminating between alternative candidates for best available data, such as bias, precision, correlation coefficients and other statistical properties of estimation methods. Adequate documentation is a prerequisite to making an informed decision as to what constitutes the best available information for any management application.
11.1.2The timeliness of information availability to all parties is crucial to the planning and regulatory processes. Deadlines for preparation and submission of management information will be in accordance with Sections 5 and 6 on reports and schedules.
11.1.8 Equal access to all fishery resources management information by all parties, for fisheries resource management purposes only, is indispensable. Equal access in this context implies the same ability in terms of similar time and cost of all parties to view and use information in the same form at the same time.
11.1.4 All information provided to the coordinated information system is the sole property of the party providing it. Disclosure of fisheries Information by a party to another party is not a waiver of confidentiality nor is it deemed to be a release of such information for purposes other than fisheries management planning and management under this plan. No party may voluntarily release information or data received from another party without that party’s consent, whether to another party or an outside agency, including agencies of the United States Government. If a party is compelled by legal process to release such information, it shall do so only after notification to all affected parties. However, nothing herein is to be construed as relieving any party of any obligation under any law or any administrative or judicial order to timely furnish any information or data to any state, federal, or international governmental body or officer.
11.2 An important goal of the parties is to establish the best available data for fisheries resource management. The parties shall maintain a list of their completed, ongoing and proposed research studies which will include a project abstract available upon request of any party.
11.3 Catch Recording System. Reliable “soft” and “hard” data systems are needed for in-season fisheries management needs and for the finalizing of catch and effort statistics, respectively.
11.3.1 The hard and soft data systems shall include all commercial catches for treaty and non-treaty fishermen. The systems shall also include fishing effort information, ceremonial and subsistence catches, and the number of fish taken home by fishermen during commercial fisheries.
11.3.2 The soft data system shall provide current catch and effort information in an agreed-upon form as frequently as is necessary for in-season management purposes.
11.3.3 Fish buyers shall submit commercial catch reports to the appropriate agency on a daily basis on agreed-to forms (fish tickets) to be provided by the state.
*109811.3.4 Processing of fish tickets, collection of data, correction of errors, and finalization of data shall be carried out under an agreed-upon joint catch monitoring system which recognizes the need and responsibility of each party to correct its own fish ticket information. Primary emphasis will be on achieving completeness and accuracy in the initial preparation of the fish ticket. Further, the parties recognize the need for rapid entry of ticket information into the soft and hard data system.
11.3.5 Area descriptions to be used for catch recording shall be agreed to by the parties. Comparable commercial and recreational catch reporting areas are desirable.
11.3.6 Recreational catches shall be estimated through an agreed-upon sport catch estimation system established following a joint study to evaluate estimation methods.
12.0 TIMING AND CONTENTS OF FISHING REGULATIONS
12.1 The parties shall cooperatively maintain a system for transmitting, cross-indexing and storing fishing regulations affecting harvest of stocks covered by this plan. In cases of conflicting regulations, the system must identify the applicable regulations.
12.2 Annually, following the completion of management reports, the parties shall exchange pre-season commercial regulations containing at least information concerning number of units of each gear type by fishing area(s), and anticipated fishing pattern for each species, at least 10 days prior to fishing.
12.3 The filing of all emergency regulations shall be in accordance with the Order re: Notification and Effective Date of Emergency Regulations, dated 26 August 1980, United States v. Washington (W.D.Wash. No. 9213), except that Section 4 of the above order shall be amended such that on Friday, or a normal business day immediately preceding a holiday transmission times shall be limited to that period between 9:00 a.m. and 10:00 a.m.
12.4 The prior orders of this court which require 24-hour advance notice or FAB approval of proposed fishery openings are modified to permit waiver of such notice or FAB action when there is agreement by all the parties. Fisheries may be opened with less than 24-hour notice and without FAB action so long as proposed openings are communicated to and received by all affected parties (by TWX and personal contact) with a 4-hour notice minimum before the fishery opening (during normal working hours) and so long as no objection is made by any affected party. In addition to the notice requirement specified above, the party requesting waiver of the notice requirement shall make a written record of time and date of the request and the time and date that each affected party received the request. That written record shall be served on all affected parties. The parties recognize this provision is not be used for regular filing of regulations, but rather is reserved for emergency implementation only.
12.5 Each party’s regulations should be filed as complete as possible and refer to previous regulations only when necessary.
12.6 The Washington Department of Fisheries’ proposed annual recreational fishing regulations will be transmitted to the tribes by March 1.
*109913.0 REGIONAL MANAGEMENT PLANS
13.1 The parties shall develop comprehensive regional resource management plans for Puget Sound stocks. The goal of these plans shall be to achieve coordination between the affected parties and to eliminate potential conflicts in resource management strategy. These regional plans shall specifically address the provisions of this Plan as to which management units are primary and harvest management and enhancement strategies, with consideration of current and anticipated habitat status and management, research needs and priorities, and other matters as required by this plan. Regional plans shall be consistent with the pro visions of this plan. When regional plans are agreed to by the parties, they may be submitted to the court for incorporation into this plan.
14.0 DISPUTE RESOLUTION
14.1 It is the intention of the Department of Fisheries and the Puget Sound treaty tribes to conduct their business in such a way as to foster the voluntary, informal settlement of disputes. It is expected that through a cooperative planning and management process the parties will continue to resolve the vast majority of issues potentially dividing them. Through this process the parties agree to make litigation a last resort, to be avoided whenever possible.
14.2 In order to foster the continued vitality and refinement of this cooperative planning and management relationship, the Director of the Department of Fisheries and the Chairman of the Northwest Indian Fisheries Commission (or their designees) will jointly plan for and sponsor an annual pre-season meeting to be held no later than February 15 at which policy leaders and their technical advisors from all parties will meet. This meeting shall accomplish at least the following items:
14.2.1 Review and evaluate the previous year’s cooperative planning and management activities and discuss ways to improve their working relationship in the coming season;
14.2.2 Identify issues which may potentially divide the parties or which have been identified in the past but have not yet been resolved and give to policy and/or technical subgroups or committees assignments and schedules for addressing these issues;
14.2.3 Agree on a schedule for meetings of state and tribal policy leaders, as needed, during the remainder of the calendar year;
14.2.4 Agree on a deadline by which each issue identified under subsection 14.2.2 will either be resolved, resolved for the coming season only so that a longer schedule can be used for a permanent solution, or referred to the pre-season dispute resolution process of subsection 14.3;
14.2.5 Identify those individuals (in addition to the Director of Fisheries and the Chairman of the Northwest Indian Fisheries Commission) who will have the authority to invoke the Dispute Resolution process. These designees shall be in policy/leadership positions;
14.2.6 Agree on individuals to serve on a panel of mediators and agree . on the chair of that panel. The panel shall oversee both the preseason and in-season dispute resolution processes described below;
*110014.2.7 Agree on individuals to serve on a Technical Advisory Group. These individuals shall be available as technical advisors to members of the panel;
14.2.8 Receive and discuss a report from the previous year’s chair of the panel which describes the disputes, and particularly the types of recurring disputes, which were not being resolved through the cooperative planning and management process and therefore became the subject of Dispute Resolution;
and conduct such other business as they deem advisable.
14.3Pre-Season Dispute Resolution
Should the cooperative planning and management process described in subsection 14.2 fail to adequately address or resolve a dispute, the dispute may be referred to policy persons designated under subsection 14.2.5. They may attempt to resolve the matter themselves without involving a mediator from the panel. If that attempt is unsuccessful, or immediately after the referral, either person may require the matter to be mediated. They may initiate mediation by notifying the chairman of the panel and the other involved party(ies). It shall be the responsibility of the chair to appoint a mediator from the panel.
14.3.1 The first step in the mediation shall be to reach agreement on the ground rules, including such matters as a description of the issue(s) in dispute, a listing of the parties to the dispute, a deadline by which the issue will be resolved, and whether the mediator shall be assisted by technical advisors. Unless any party objects, ground rules will include those specified in Section 14.3.5 A, B, D, E, F, G, H and L (except delete the word “technical”). All parties shall be represented in the dispute by policy level, not technical, persons. Those representatives may have assistance from policy, legal and technical advisors, as they see fit. The mediator may have advisors only from the Technical Advisory Group as specified under 14.2.7.
14.3.2 The goal of the mediation shall be to reach agreement that will settle the dispute. If agreement is not achieved on an issue which both parties agree is technical, the parties must proceed to arbitration as provided in Section 14.3.4. If agreement is not reached on a policy or legal issue, either party may proceed to court, or they may agree to attempt further measures to resolve the dispute as provided in subsection 14.3.3.
14.3.3 Where mediation has failed to resolve a policy or legal dispute, the parties may agree to non-binding arbitration, binding arbitration, or other methods, using ground rules and standards as provided in 14.3.5 A through L (except delete the word “technical”), unless any party objects.
14.3.4 If mediation of a technical dispute has been unsuccessful, a Fisheries Advisory Board (FAB) meeting may be called as provided in the Order Establishing Fisheries Advisory Board, 459 F.Supp. at 1061 (as amended), provided, that the chair of the panel shall appoint a member of the Technical Advisory Group to act as chairman of the FAB in lieu of the court-appointed technical ad-visor. If no member of the Technical Advisory Group is available, the court-appointed technical advisor *1101shall act as chairman of the FAB. The FAB can only be called by a policy level person and each party shall be presented by a policy level person. An FAB is mandatory before a technical issue is taken to court. A decision by an FAB is binding pending a court determination or other resolution under 14.2.6.
14.3.5 Ground Rules for Technical Issue FAB Meetings
A) The chairmen shall conduct themselves in a manner appropriate to a neutral party and not to the prejudice of the interests of potential litigants.
B) Proceedings should be carefully documented to clearly describe the basis for any decision so as not to dimmish:
1) the rights of any participant to seek judicial review;
2) the objectivity of the dispute resolution process; and
3) the usefulness of the record to policy makers.
C) The chairman should bring his expertise to bear on the dispute to facilitate resolution by the participants, but any decisions should be made upon the basis of Information presented during the dispute resolution proceedings. In making a decision, the chairman should apply principles and objectives outlined in this plan and should employ consistent standards of accountability regardless of whether the issue involved disputes over commercial or recreational fishing.
D) Reasons for requesting a technical dispute resolution proceeding should be presented in writing whenever time permits and exchanged with necessary participants whenever practicable.
E) Once a technical dispute resolution proceeding is initiated, representatives of necessary resource managers must be made available. If reasonable efforts by the chairman to obtain representation fail, emergency technical dispute resolution proceedings can proceed with the chairman using the best available information.
F) Technical dispute resolution proceedings should be formalized through strict adherence to agendas which are arranged and agreed upon prior to the session whenever practicable. Documentation of areas of technical agreement and disagreement should be prepared by the disputants for use in the proceedings.
G) Information employed in technical dispute resolution proceedings must meet standards governing the coordinated information systems where such standards exist.
H) To the extent practicable, all participants must be provided with a reasonable opportunity to review data and analyses before using them in technical dispute resolution proceedings.
I) When an FAB has been called, disputants may not initiate contact with the FAB chair over matters of substance.
J) The full report of the FAB decision and proceedings, including any information submitted to the proceedings for consideration and deemed relevant by any participant, may be submitted as at least part of the record for judicial review.
*1102K) Each disputant in a technical dispute resolution proceeding shall be provided a reasonable opportunity to review and comment upon the report of the technical dispute resolution proceedings before the report is made final. Comments received shall be considered part of the record of the dispute resolution proceeding. Proceedings may be recorded at the request of any disputant and any recording shall be made a part of the record. Reports of proceedings, together with a copy of the record before the proceedings shall be submitted to the parties to the dispute. Reports of proceedings shall be distributed to any fishery manager upon request. The decision and report shall be made in a timely fashion.
L) These general procedural ground rules can be modified for any particular dispute upon agreement of the participants.
14.3.6 Following the procedure of 14.3.3and 14.3.4, policy leaders from the state and tribes shall meet to discuss the resolution of issues submitted to those procedures. They may then negotiate over any and all issues to attempt to reach a mutually agreeable settlement, regardless of the outcome from sections 14.3.3 or 14.3.4.
14.4In-Season Dispute Resolution
The purpose of the in-season dispute resolution process is to provide a fair procedure through which timely and often immediate decisions can be made. As with pre-season disputes, it is the parties’ intention and purpose to reach voluntary and mutually acceptable solutions to problems, particularly without the need to go to court. It is also recognized, however, that in-season settlements of disputes frequently will have to be made very quickly and with limited or conflicting available data. Therefore, the decisions reached through the in-season dispute resolution process shall be binding only for that season and shall not be considered precedential in any manner. For the purpose of this section, in-season will be defined as the period beginning 10 days prior to the management period for the expected species and area.
14.4.1 To the extent time is available, all parties are encouraged to use the procedures of 14.3.1, 14.3.2 and 14.3.3to resolve in-season disputes. Where time is not sufficient, the parties are encouraged to find a temporary solution so that those issues may be deferred to the full processes of Sections 14.1, 14.2 and 14.3.
14.4.2 Where other resolutions are not possible for technical disputes, a party may request an FAB in the same manner as 14.3.4 and 14.3.5, and must request an FAB before proceeding to court.
14.4.3 Members of the technical advisory group and the court’s technical advisors shall be certain at least one person is on call during all working hours and available to act as chairman of the FAB on 24 hours notice or less.
14.5 Where both parties agree, the dispute resolution process of 14.1 through 14.4 may be waived and the parties may proceed directly to court, provided, that for technical disputes an FAB must be held as provided in 14.3.4,14.3.5and 14.4.2.
14.6 There shall be review of this entire dispute resolution process by the parties at the annual meeting provid*1103ed for in 14.2. The parties shall seek to agree on improvements and modifications of this process in order to promote voluntary and informal agreements and to avoid litigation of disputed issues.
14.7 The dispute resolution process of Section 14 shall automatically expire on December 31, 1986 unless before that date all parties have jointly filed a request with the Court to extend or modify that section. If Section 14 expires on December 31, 1986, the dispute resolution provisions of the Orders Establishing Fisheries Advisory Board, 459 F.Supp. at 1061, as amended, and Section 11 of the Memorandum Adoption Salmon Management Plan, 459 F.Supp. at 1107, 1113, shall be automatically reinstated.
ORDER RE HOOD CANAL MANAGEMENT PLAN
No. 9213, Ph. I
(Proceeding 83-8)
(July 3, 1986)
McGOVERN, District Judge.
On October 6, 1983 the Point No Point Treaty tribes requested declaratory and injunctive relief to implement a Hood Canal Salmon Management Plan that had been agreed to in 1980. That request was referred to United States Magistrate John I. Weinberg for a Report and Recommendation. During the proceedings before the Magistrate the Point No Point Treaty tribes and the Washington Department of Fisheries agreed to settle their dispute by negotiation of a new Hood Canal Salmon Management Plan. The parties have now negotiated a new plan.
It is therefore ORDERED that:
1. The request of the Point No Point Treaty tribes for declaratory and injunc-tive relief is dismissed, and
2. The Hood Canal Salmon Management Plan, dated October 9, 1985, attached to this Order, is made an order of this Court and is enforceable as such.
HOOD CANAL SALMON MANAGEMENT PLAN
1.0 Preamble
1.1 This plan is the result of a series of discussions and negotiations between policy makers and the technical staffs of the parties with the intent of establishing a long-range management plan for salmon in Hood Canal. This plan is intended to comply with and address all regional issues required by the Puget Sound Salmon Management Plan and meet the guidelines for regional plans as suggested by the Salmon and Steelhead Conservation and Enhancement Act. This plan supersedes the previous Hood Canal Plan (signed December 30,1980).
1.2 This plan recognizes that a detailed watershed management planning process is beginning for all of the Puget Sound sub-regions. It is understood that the Hood Canal Salmon Management Plan is one component in the development of an overall Puget Sound Regional Plan. It is also understood that tribal and state representatives who participated in developing the Hood Canal Plan will also be involved in the reconciliation process that is necessary between sub-regional plans and eventually regional plans; i.e., Puget Sound, Coast and Columbia River.
1.3 The purpose of this plan is to establish guidelines for the harvest, pro*1104tection, rehabilitation and enhancement of salmon resources originating from or passing through Hood Canal waters from the mouth of Hood Canal southward.
1.4 This plan shall remain in effect from the date of the order approving it until modified by agreement of the parties or order of the Court.
1.5 This plan is intended to implement the decisions of the court in United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff'd 520 F.2d 676 (9th Cir.1975), cert. denied 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), aff'd sub nom., Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) and other orders under the court’s continuing jurisdiction, including in particular the Puget Sound Salmon Management Plan order.
2.0 Statement of Goals
The primary goal of this plan is to maximize the long term net benefits from the salmon resource, in a manner that provides clear policy and technical guidelines, minimizes disagreements, and improves coordination between the parties. The plan will form the framework for protection of natural stocks, provide guidance for programming existing salmon enhancement and rehabilitation facilities and the basis for review, implementation, and operation of future enhancement projects. It is also to serve as the basic guideline for implementation of the annual pre — and in-season management plans by the parties.
Consistent with the primary goal, three policy guidelines will be used when evaluating alternative management or enhancement programs. The technical staffs of each party shall seek to:
1. Minimize the need for intensive, limited area fisheries by enhancement of production in diverse areas;
2. Avoid over dependence of the fleet on any one species of salmon by providing a balanced approach to salmon production;
3. Maximize the stability of the fisheries from year to year.
This salmon management plan provides direct and indirect benefits to Treaty and non-Treaty commercial and recreational fishermen in Hood Canal. It is intended to ensure management in accordance with established Treaty rights and sound conservation principles, and to reflect the biological and economic policies of the management entities. Nothing in this plan is intended to preclude additional enhancement of the resource in Hood Canal in the future if additional facilities or funding should become available and such enhancement is consistent with the primary goals of this plan and is agreed to by the parties.
3.0 Definitions
Required (MSH) Escapement
An estimate of the required escapement to natural spawning areas to provide maximum sustainable harvest (MSH) to Washington fisheries. At hatcheries, the escapement needed to meet the equilibrium brood program production level. Fisheries may or may not be managed to meet required escapements in accordance with the provisions of Section 3.5 of the Puget Sound Salmon Management Plan.
Equilibrium Brood Program
The standard mode of operation for existing facilities/functions, associated with intervention in one or more of a salmon’s life history phases.
*1105Management Unit
A stock or group of stocks which are aggregated for the purpose of achieving a desired spawning escapement.
Parties
The Washington Department of Fisheries (WDF), the United States Fish and Wildlife Service (USFWS), and the Tribes (the Jamestown Klallam, Lower Elwha Klal-lam, Port Gamble Klallam, and Skokomish) make up the parties to this plan.
Primary Management Unit
A stock or group of stocks for which a specific spawning escapement goal is established with the intention of managing all intercepting fisheries to meet that goal.
Puget Sound Plan
The Puget Sound Salmon Management Plan, as agreed to between the parties and adopted by the U.S. District Court in 1985.
Secondary Management Unit
A stock or group of stocks for which escapement is that which occurs primarily as a result of not being caught in fisheries directed at commingled primary management units.
Technical Team
Representatives of the technical staffs of each party.
4.0 Habitat Management Policy
The parties believe that maintaining the integrity of habitat in both the marine and freshwater areas of Hood Canal is of the utmost importance in developing a dependable, stable, and economically viable fishery resource. The preservation, and where feasible, the rehabilitation and enhancement of fish habitat currently used or having the potential to be used by ana-dromous stocks is an integral part of this plan. The joint and cooperative efforts of the parties (including the maintenance and exchange of habitat information) will be needed to effectively monitor proposed activities with the potential to adversely affect habitat in Hood Canal. The parties also agree to encourage coordinated activities designed to improve the salmonid habitat. A habitat management data base will be assembled and it shall contain all available information related to salmonid habitats in Hood Canal, focusing on physical and biological descriptions. This data base will permit more specific identification of problems as well as available opportunities for needed rehabilitation of salmonid stocks in this area.
The classification within this plan of certain stocks as secondary for harvest management purposes should in no way be construed to mean that the habitat which is used by those stocks is of secondary importance. All habitat in Hood canal will be utilized to the optimum extent for the production of salmonids. In addition, the management regime presented in this plan is flexible, and alterations in the management status of the stocks (primary or secondary) may occur. Recognizing these facts, the parties reaffirm their commitment to protect the fisheries’ habitat from environmental degradation.
5.0 Chinook Salmon Management and Enhancement
The equilibrium brood program, required escapement levels, run timing in each management area, and the management regime for chinook salmon are summarized in Appendix Tables 1-3 and in Appendix Figure 1.
5.1 Spring Chinook
The parties believe that an overall strategy for managing spring chinook in Puget *1106Sound is needed as mandated in existing court orders. Despite the present lack of a Puget Sound wide plan, it is evident that the protection and restoration of spring Chinook in Hood Canal is both desirable and feasible. The on-going restoration program at the Quileene National Fish Hatchery provides a unique opportunity to rebuild natural stocks in Hood Canal. The long term goal of this program will be production of smolts at a level which provides adult returns at levels surplus to hatchery brood stock needs. This surplus production will initially be stocked only in the Skokomish River and other tributaries to Hood Canal in an effort to rebuild natural stocks and provide for recreational and commercial harvests. Planting of Quileene Hatchery stock into Strait of Juan de Fuca tributaries may occur if restoration using local stocks is unsuccessful or not feasible and the parties agree to the proposed project.
Prior to completion of this rebuilding process, the following management units are recognized:
Management Unit Status
Skokomish River (Natural) Secondary
Quileene National Fish Hatchery Secondary
No commercial net or sport fisheries directed at spring chinook in Hood Canal are anticipated at this time. To protect spring chinook from a directed harvest, Quileene Bay (north and west of a line drawn from Pt. Whitney to Fishermen’s Point) and the Skokomish River will remain closed during the spring chinook management period if the returning runs are below escapement needs. Additional restrictions in fisheries will be considered if sampling information indicates that fisheries are targeting on spring chinook in Hood Canal. The parties agree to the long term objective of rebuilding the Skokomish River and Quil-cene Hatchery spring chinook stocks, by utilizing the Quileene Hatchery spring chi-nook program, so that these stocks may produce harvestable fish and be designated as primary stocks in the future. For the Skokomish River, this long term objective is dependent upon adequate protection of the remaining spring chinook habitat.
5.2 Summer/Fall Chinook
Summer/fall chinook salmon returning to Hood Canal will be managed to achieve the desired aggregate escapement at the George Adams/McKernan/Hoodsport complex. Management units and their status (primary or secondary) are listed below:
Management Unit Status
George Adams/McKernan Hatchery Primary
Hoodsport Hatchery Primary
Enetai Hatchery Secondary
Skokomish River (Natural Augmented) Secondary
Tributaries to Area 12B (Natural Augmented) Secondary
Tributaries to Area 12D (Natural Augmented) Secondary
*1107The maximum production capability of the marine waters of Hood Canal has not been quantified. In the absence of conclusive information, a probing approach to chinook production is needed to determine if production greater than the equilibrium brood program described in this Plan will affect the survival of chinook fingerlings released from hatcheries in Hood Canal. The approach to be used to resolve this issue is presented in Appendix 1. Agreed to variations in chinook production will be needed during the probing period and several potential options consistent with the probing methods exist:
1) Use the space (or a portion of it) currently used for the production of fish destined for South Sound for production of fish for release in Hood Canal. The parties agree that any increase in the production of chinook from facilities in South Sound beyond the current production of 31,540,000 fingerlings and 1,820,000 yearlings will result in a concomitant reduction in the production in Hood Canal of chinook destined for South Sound;
2) Rear fish destined for South Sound at stations outside of both South Sound and Hood Canal, and use the space thus vacated to produce additional fish for Hood Canal;
3) Convert some of the current chum production at State, Tribal or U.S. facilities in Hood Canal to chinook production;
4) Produce yearling chinook from net pens in Hood Canal;
5) Improve existing and/or construct additional facilities.
The need or desirability for implementing these or other options will be evaluated during the annual plan review process. Any decisions made affecting South Sound management or production will be made in consultation with the South Sound Tribes and in a manner consistent with the Puget Sound Plan.
Chinook production in Hood Canal may also be increased by outplanting chinook fry in the major tributaries. However, the effectiveness of outplanting is unknown at this time, and a cooperative study should be undertaken before expansion of the current program.
6.0 Pink Salmon Management and Enhancement
The equilibrium brood program, required escapement levels, run timing in each management area, and the management regime for pink salmon are summarized in Appendix Tables 1-3 and in Appendix Figure 1.
Management units for pink salmon returning to Hood Canal and their status are listed below:
Management Unit Status
Tribs. to Area 12B (Natural) Primary
Hoodsport Hatchery Secondary (See Sect. 7.1)
It is recognized that significant numbers of Hood Canal pink salmon may be intercepted by fisheries directed at Canadian stocks. Restrictions to protect weak Hood Canal natural stocks after separation from Canadian stocks may include area and gear restrictions which would provide satisfactory levels of protection without inordinate restrictions on the harvest of chinook salmon. The parties agree *1108to evaluate alternative methods of accomplishing this protection.
7.0 Coho Salmon Management and Enhancement
The equilibrium brood program, required escapement levels, run timing in each management area, and the management regime for coho salmon are summarized in Appendix Tables 1-3 and in Appendix Figure 1.
7.1 Early Coho
A pilot project to assess the feasibility of establishing an early coho run on Hood Canal is currently underway. During the evaluation phase, three early coho stocks (Soleduck, Baker, and Capilano) have been scheduled for release over a 6 year period commencing with the 1979 brood. Preliminary analysis of the project will be conducted in April of each year by the technical team to assess the viability of the project and determine escapement needs. A decision regarding the scope of the early coho enhancement project will occur in April of 1988 when results from the entire 6 year evaluation period are available.
To the extent that this enhancement planning decision may affect other parties by changing the escapement requirements of salmon stocks outside Hood Canal, those affected parties shall be consulted.
During the evaluation period early coho will be managed as a secondary stock with the harvest rate equal to that appropriate for summer/fall chinook (in areas 12, 12B, 12C) normal coho (in areas 12, 12B, and 12C) and pink salmon (in areas 12, 12B) during their respective management periods. Any unharvestable surplus shall not be included in the calculation of shares.
7.2 Normal Coho
Normal timed coho salmon will be managed to achieve the desired level of escapement to the natural spawning areas of Hood Canal except in Area 12A and in Area 9A. Management units and their status (primary or secondary) are listed below:
Management Unit Status
Tribs. to Area 12 (Natural) Primary
Tribs. to Area 12B (Natural) Primary
Tribs. to Area 12C (Natural) Primary
Tribs. to Area 12D (Natural) Primary
Skokomish River (Natural) Primary
George Adams Hatchery Secondary
Quileene National Fish Hatchery Secondary (except in Area 12A)
Area 9A Pens Secondary
Tribs. to Area 9A (Natural) Secondary
Area 12A Pens Secondary
Tribs. to Area 12A (Natural) Secondary
*1109Fisheries in Area 12A and the Quilcene River will be managed to achieve the desired escapement at the Quilcene National Fish Hatchery; the fishery in Area 9A will be managed to achieve the complete harvest of coho in that area. An unharvesta-ble surplus will occur at George Adams hatchery. These fish shall not be included in the calculation of shares except as may be agreed to by the parties.
The pen rearing projects in Area 12A and in Area 9A are cooperative programs between the WDF and the Tribes. The purpose of these programs is not only to provide additional harvest, but to also provide a better distribution of harvest among areas. It will be the responsibility of the Tribes to provide the labor and materials to maintain these facilities, while the Washington Department of Fisheries will provide the smolts and fish food.
Consistent with the primary goals of this plan, the parties have considered several alternative management and enhancement measures designed to maintain and increase the harvest of coho salmon in Hood Canal. Some of the measures considered are:
1. Increasing annual production from the Area 12A pens beyond the currently scheduled .25 million smolts.
2. Changing the status of the Skokomish natural stock to a secondary stock, increasing production from the George Adams Hatchery, and managing the Skokomish River fishery to achieve the desired escapement at the George Adams Hatchery;
3. Outplanting coho fry in natural production areas which are underseed-ed.
4. Implementation of the equilibrium brood program described in the Plan.
Because of concerns, and/or present uncertainties over natural stocks, interspecific interactions, habitat carrying capacities, and the level of potential impacts to the areal distribution of harvests, the parties have agreed to initially implement the management and enhancement programs outlined herein and to reassess each of these options, and others which may arise, during the annual technical review process.
8.0 Chum Salmon Management and Enhancement
The equilibrium brood program, required escapement levels, run timing in each management area, and the management regime for chum salmon are summarized in Appendix Tables 1-3 and in Appendix Figure 1.
8.1 Early Chum
Early timed chum salmon in Hood Canal will be managed as secondary stocks. Harvest will occur at the rate appropriate for Chinook salmon during the Chinook management period and at the rate appropriate for coho during the coho management period.
Management Unit Status
Tribs. to Area 12A (Natural) Secondary
Tribs. to Area 12B (Natural) Secondary
Tribs. to Area 12C (Natural) Secondary
Tribs. to Area 12D (Natural) Secondary
*11108.2 Hoodsport Hatchery Timed Chum (Early-Normal Chum)
Chum salmon returning during the same time period as the Hoodsport Hatchery timed stocks shall be managed to achieve the desired aggregate escapement at the Hoodsport/George Adams/McKernan complex. Management units and their status (primary or secondary) are listed below:
Management Unit Status
Hoodsport Hatchery Primary
George Adams/McKeman Hatchery Primary
Skokomish River (Natural) Secondary
Tribs. to Area 12 (Natural) Secondary
Tribs. to Area 12A (Natural) Secondary
Tribs. to Area 12B (Natural Augmented) Secondary
Tribs. to Area 12C (Natural Augmented) Secondary
Tribs. to Area 12D (Natural Augmented) Secondary
Little Boston Hatchery Secondary
Quileene National Fish Hatchery Secondary
Enetai Hatchery Secondary
It is recognized by the parties that not all chum returning to Hood Canal have similar timing. For this reason, only the proportion of the management unit entering Hood Canal during the hatchery management period (Appendix Table 2) shall be considered harvestable at the rate appropriate for the primary management units. Although the initial portion of the late-normal run will be harvested at a hatchery rate, it is the intent of the parties to achieve, to the extent possible, the biologically required escapements for these stocks by appropriate management actions after the end of the early-normal management period. The parties shall determine the feasibility of accomplishing this after further analysis of the entry timing difference between the Hoodsport and late-normal stocks.
To protect natural stocks in the Skokomish River, the original Hood Canal Plan called for the transfer of 50% of the production from the hatcheries located on the Sko-komish River to other areas in Hood Canal. It appears that the timing overlap of hatchery and natural stocks in the Sko-komish River may not now require that hatchery fry be transported out of the Skokomish system. However, the potential exists that a shift in the preponderance of production from the Hoodsport Hatchery to stations on the Skokomish River could result in a large number of harvesta-ble fish in the Skokomish River. This would alter the areal distribution of harvest and would be detrimental to the Tribes’ marine area fisheries. The parties agree to limit the transfer of production from Skokomish River hatcheries to 50% of the George Adams hatchery only, beginning with the 1985 brood year, and to assess the transfer program with respect *1111to 1) the beneficial/harmful effects on the return rate caused by the transfer of the fish, 2) the protection afforded to natural stocks in the Skokomish River, and 3) shifts in the areal distribution of harvest.
Future decisions concerning the transfer program shall be based on the results of these assessments.
The WDF and the Tribes have cooperated in the operation of an egg box program designed to mitigate for the effects of hatchery harvest rates. The effectiveness of this program is presently unknown; therefore the parties have agreed to reassess the program and recommend modification, improvement, or discontinuance, as appropriate.
8.3 Late-Normal Chum
Chum salmon returning after the hatchery chum management period will be harvested at a rate appropriate for natural stocks, except in Area 12A and in Area 9A. Management units and their status (primary or secondary) are listed below:
Management Unit Status
Skokomish River (Natural) Primary
Tribs. to Area 12A (Natural) Secondary
Tribs. to Area 12B (Natural) Primary
Little Boston Hatchery Secondary
Enetai Hatchery Secondary
Quileene National Fish Hatchery Secondary (except in Area 12A)
9.0 Implementation Procedures
9.1 Escapement
In order to establish the levels of required escapements for the various management units and stocks in Hood Canal, the parties shall follow the procedures outlined in Section 3 of the Puget Sound Plan.
9.2 Management Reports and Documents
The parties recognize that long term as well as annual management planning processes depend on timely exchange of resource management information and management planning recommendations. These will be prepared by the parties as follows:
9.2.1
Basic resource management documents shall be prepared in accordance with this Plan’s goals and in a manner outlined in Section 5 of the Puget Sound Plan. Initially, Appendix Tables 1 and 2 of this Plan shall be considered the basis for such resource documents.
9.2.2
Annual preseason and post season management reports shall be prepared by the parties in accordance with Section 5 of the Puget Sound Plan. In addition to the requirements of the Puget Sound Plan regarding post-season audit reports, and in the same time frame, the parties shall prepare annually a report outlining the progress toward implementation of this Plan’s primary goals as well as any recommendations for amendments to this Plan.
9.3 Schedules
The parties to this Plan shall undertake to complete annual reporting and agreement tasks in accordance with the annual Schedule found in Section 6 of the Puget Sound *1112Plan. Additional deadlines required by this Plan are: •
Plan progress report available: «3 CO
Agreement on proposed activities and amendments: lO
9.4Allocation
Allocation and equitable adjustment procedures for each Hood Canal allocation unit shall be as outlined in Section 10 of the Puget Sound Plan.
9.5Plan Review and Amendment
The parties recognize that this plan cannot possibly address all potential concerns regarding the management of salmon in the Hood Canal region. For this reason, it is imperative that an annual review process occur to evaluate the performance of the plan and to provide for necessary, modifications. This review shall occur in accordance with the schedule in section 9.3. Any amendment of the plan shall be by agreement of the parties.
9.5.1
In the event of budget reductions affecting WDF, USFWS or Tribal production programs, high priority will be given to maintaining the programs in Hood Canal, but in no case will the loss of production in Hood Canal be disproportionate to the overall cutback in the aggregate of the WDF, USFWS or Tribal facilities. The parties shall be apprised of the situation, consulted, and given an opportunity to ameliorate the effects of the budget cuts.
9.5.2
Changes to this plan may be agreed to by a signed stipulation filed with the court or entered as a court order by June 1 in order to become effective the following year. Changes may be implemented in the same year by agreement of the parties.
9.5.3
The parties to this plan recognize that many of the benefits of this plan depend upon the sharing of hatchery production. Therefore, if the United States Supreme Court makes any decision which changes or leads to a change in the tribes’ right to share all hatchery fish on the same basis as naturally produced fish, any one of the parties may at their sole option elect to terminate this plan. Provided that, prior to such termination, the parties shall make every effort to agree on modifications to this plan to fit new circumstances.
9.6Dispute resolution
The parties to this Plan recognize the value of voluntary, informal settlement of disputes and shall make every effort to resolve disputes through a cooperative planning and management process.
9.6.1
Disputes which may arise regarding the implementation and/or amendments to this Plan shall be submitted to the Dispute Resolution Process outlined in Section 14 of the Puget Sound Plan.
9.6.2
In the event a disagreement over the interpretation, implementation or enforcement of this plan is not resolved through the dispute resolution process required by Section 9.6.1, any dissatisfied party may seek a determination in federal district court. The court shall remain the ultimate arbiter of this plan’s interpretation, implementation and enforcement.
*1113Appendix 1.
Procedure and Schedule for Analyzing Chinook Enhancement Programs
The time schedule and procedure which will be used to analyze chinook enhancement programs in Hood Canal is presented below.
Time Period_Task_
5-6/85 1. Determine needed improvements in the lower earthen pond at the George Adams Hatchery.
6/85 2. Decision regarding the production of chinook from the lower earthen pond at the George Adams Hatchery.
8/86 3. Evaluate the desirability of increasing chinook production from the Enetai Hatchery.
4/86 4. Decision regarding increasing the production of chinook from the Enetai Hatchery.
4/86 5. Tag chinook fingerling at the Hoodsport Hatchery for evaluation of the equilibrium enhancement level.
4/86 6. Tag chinook fingerling at the Enetai Hatchery for production evaluation.
4/86 7. Tag chinook fingerlings in the lower earthen pond at the George Adams Hatchery for production evaluation.
4/87 8. Tag chinook fingerlings at the Hoodsport Hatchery for evaluation of the equilibrium enhancement level.
4/87 9. Tag chinook at the Enetai Hatchery for production evaluation.
4/87 10. Tag chinook fingerlings in the lower earthen pond at the George Adams Hatchery for production evaluation.
4/88 11. Review baseline tag data available? determine future course of Hood Canal smolt capacity experiment.
Tasks 5, 8, and 11 will be undertaken as one component of a program to evaluate the juvenile rearing capacity of Hood Canal. To prevent confounding of the results of this experiment, sources of variability such as inconsistent rearing and release strategies will need to be minimized. Chi-nook fingerling from the Hoodsport Hatchery were chosen for the experiment as a more complete coded wire tag data base is available than for the George Adams Hatchery. In addition, unlike the George Adams Hatchery stock, the Hoodsport Hatchery stock has been relatively free from supplementation from stocks from outside Hood Canal. Coded wire tag data applicable to Hoodsport Hatchery fingerling production and expected to be available at the next decision point in the experiment (4/88) are listed below.
*1114Brood Year Date Available_Tag1 Codes Fingerling Pounds Planted in Hood Canal
71 Currently -01-03,15-01-12 54,917
72 Currently 15-05-12 70,314
78 Currently 63-19-15 9,639
79 86 63-21-09 15,381
80 87 63-21-61 34,203
81 88 63-23-31 40,049
85 92 55,000-68,000 (projected)
86 55,000-68,000 (projected)
*1115Appendix Table !. Equilibrium brood program.
The etfrilibrium brood program described beta represents production programs and votes of production agreed to between the parties during formulation of this plan. Numbers of ‘fish released" ray vary within +10% because of management and production impraoisicn.
Additional information concerning these progress may be found in the ftjget Sound Equilibrium Brood Program Report mandated by the Puget Sound Plan. Ihat information includes egg requirements, broodstock use priorities and outlines of contingency actitji for each project.
Fish Size Transfer/ Facility Stock Source (minions) (fish/lb) Release location Transfer/teleasa Dote
SPRMS CHINOOK S«N-Production for release in the HOod dual ragitji.
pílcate River Kay Qrilcene National Fish Hatchery Quilcene Quilcene .40 tn
Quilcene River Jira Quilcene Natioanl Fish Hatchery Quilcaie Quilcene .20 SI
SUMMER/FALL CHINOOK SALMON-Production for release in the (food Canal region.
Purdy Creek toy, June George Adams Hatchery George Adams (Hoodsport) George Adams (Hoodsport) 3.10
Heed Canal streams March Gaonge Adairs Hatchery George Adairs (Hoodsport) GEorga Adairs (Hoodsport) .50
Weaver Creek May, Jira MsHeman Hatchery George Adams (Hoodsport) George Adams (Hoodsport)
Finch Creek Hay, Jira Hocdsport Hatchery Hoodsport (George Adams) Hoodsport (George Adairs) 1.20
Finch Creek March Hoodsport Hatchery Hoodsport Hoodsport .15
Bietaf Creek Jira Bietai Hatchery Bietai (Hoodsport) Bietai (Hoodsport) •215
Stotooish River March Bietai Hatchery Bietai (Hoodsport) Bietai (Hoodsport) .30
SIMBi/FAU. CUlUCCtí SW - Pretorial for release outside the Hood Canal region.
'PercivaVCwe 'January Gauge Adams Hatchery Deschutes Deschutes .60 &
Percival toe January MSfernan Hatchery Deschutes Deschutes S3
*1116Facility Fish Size Transfer/ Stock_Source(millions) fflsh/lb) Release location Transfer/Release Data
PINK SAUffl - Production for release In the Hood Oral region.
Hoodsport Hatchery Hoodsport Hoodsport 1,00 1,000 Finch Creek March
COHOSAÜCT - Production for reíase in the Hood Canal region.
torge Adams Hatchery torge Alais .25^ 1,000 Hoed Canal streams Marsh
George Adams Hatchery George Adais .30 17 tody Creek May
Hoodsport Hatchery Soleduck, Baker, Dungeness Capita .25 15 Finoh Creek June
Area 12A Pans Dungeness .25 12 Arar 12A July
Port Gacble Pens Dung®ess Hugeness .40 12 Area SU July
Quilcene National Fish Hatchary Quilcene Quilcene .25 450-800 Area 12A Tribs. Fdmiary, March
Quilcene Rational Fish Hatchery Quilcene Quilcene .25 18 Quilcene Rivet* May
CCHOSAUCN-Production for outside the Hoed Canal region.
Gaorge Adais Hatchery George Adams George tos .25 1,000 Sauth Sound streams April
Gecrge Adais Hatchery torge Adairs George Arte .50 30 South Sound pens February
Itoodsport Hatchery Hfnter Creek Winter Creek 35 take Sequalltetet Ncvecber
CHiWSAlMM - Proftictlcn for release In.the Hood Canal region.
Gaorge Adams Hatehery George Adams (Hoodsport) George Adams (Hoodsport) 5.00 450-f Purdy Creek March, April, toy
George Adams Hatchery Georgs Adams (Hoodsport) torge Adams (Hoodsport) 5.00 450 Hoodsport Hatchery April, May
MaKernan Hatchery Máfeman (Hcodsport). McKernan (Hoodsport) 10.00 550 Heaver Creek to., March, April
*1117facility Fish Size Transfer/ Stock Source (millions) (flsh/lb) Release location Transfer/lleTBasa Date
CHUH SALMO) - Production for release in the Hood Canal region (continued).
Hoodsport Hatchery Gangs Adere Gaorga Ate 5.00 305 Finch Creek March, April, May, Juie
Hoodsport Hatchery Hoodsport Hoodsport 1Q.G0 385 Finch Creek March, April, May, Juie
Ehetai Hatchery Ehetai Ehetai 1.00 1,100 Bietai Creek March
Ehetai Hatchery Bietai Bietai 1.50 400 Bietai Creek May
little Boston Hatchery Georgs Adare (Hoodsport) (Hoodsport) .95 400 Little Elston Creek Bay
Port GaablB Pens Hoodsport (George Mass) Hoodsport (Georga Ate) 1,B0 400 Area 9A May
Quilcene National Fish Hatchery Quilcene Quilcene 2.20 550 Big Qjilcaie River1 April
Egg BonesHoodsport Hoodsport 1.50 Tahuya R.2 1250 March
(George Ate) (George Adairs) 0.15 Andersen Crk. 1250 torch
0.15 Caldervin Crk. 1250 torch
0.15 Stimson Cek.‘ 1250 March
0.15 Uiicn R. 1250 torch
0.15 Twanoh Crk. 1250 torch
1.00 Johnson Crk/ 1250 torch
0.50 Fulton CrK 1250 torch
2.00 Eagle 1250 March
0.50 John 1250 March
0.50 1250 L. Lfflteup R.' torch
CttW SALMON-Proteico for release outside the Hood Canal region.
Quilcene National Fish Hatchery Quilcene Qrilcene (Nalcott) 2.20 tokah NFH torch
*1118Note: The following list of escapement requirements outlines the escapement goals used by the parties during the 1985 season. All requirements shall be reviewed and revised annually in accordance with Section 3.5 of the Puget Sound Salmon Management Plan. Any in-saasan changes to hatchery escapements shall be made in accordance with Section 3.11 of the Puget Sound Management Plan.
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*1119Management unit ¡8c Prod. Units) Spr. Chin. S/F Chin. Pink Coho Early Chun E-Hormal Chum L-Hormal Chum
Artificial Production
Area 9A Pens
Area 12A Pens
Little Boston Butchery
(¡uilcena Nat'l Fish Hatchery 500 — — 500 2,100
Hoodsport Hatchery — 2-,BOO4 1,1005 0 22,600
Enetal Hatchery 350
Geo. Adams/McKernan Hatchery B00 1,580 M00
*1120[[Image here]]
*1121[[Image here]]
*1122[[Image here]]
. These estimates are subject to revision and are established by the parties to meet administrative procedures and the planning needs of other agencies such as PFMC.
. If hard catch data from the preceding year become available prior to use of agreed-to in-season update models, and these data would significantly alter the models, the parties should consider corrections to the models using hard data.
. Additional tag groups may be included, as appropriate, by agreement of the parties.
2S of the proteico will be released in Kalcott Slough in 1966 and 1907.
Egg box prog/m
Secondary management unit,
Total escapement need of 3,600 fish; proportion to be taken at each facility will depend upon the management objectives In each year.
Total escapement need of 31,000 fish; proportion to be taken at each facility Mill depend upon the management objectives in each year.
Actual distribution to be established annually.
Ihe equilibrium brood includes .5 million (® 100/lb) to be reared at the Gearge Ate lower earthen paid. The parties agree that this carponait may be increased to 1 million or eliminated based on the results of technical analysis Vihich would teigh long term benefits vs. potential lasses due to flooding.
Ihe parties agree that a modification of the Bietai program to increase production of Chinook ffngerlings by .36 millioi at the expense of chan proteico is desirable if technical analysis Indicates that the program has been successful at'its airreht proteico level.
The parties shall assess and establish escapement requirements prior to 1987.
Present combined escapement requirement (see Sections 8.2, 8*3). The parties shall establish appropriate levels of escapement. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217017/ | MEMORANDUM**
In this consolidated appeal, Plaintiff-Appellant Gene Colombini challenges the district court’s grant of summary judgment in favor of the defendants and its denial of his motions to quash and enjoin various discovery-related subpoenas and deposition notices. Colombini raises various procedural objections to the district court’s decisions, claiming, inter alia, lack of personal jurisdiction over the defendants, lack of district court jurisdiction over the case because of the interlocutory appeals pending before this Court, violations of the local rules of procedure by defense counsel, and a conflict of interest between the defendants and their chosen counsel. His sole substantive arguments regarding the merits of his claims are raised only in his reply brief.
The district court addressed Colombini’s claims thoroughly and articulately in its written opinion granting the defendants’ motion for summary judgment. Colombini v. Members of the Bd. of Dirs. of the Empire Coll. Sch. of Law, No. C97-04500 CRB, 2001 WL 1006785 (N.D.Cal. Aug.17, 2001). The district court correctly determined that Colombini had failed to support his claims with evidence and that his jurisdictional and procedural arguments were meritless. Summary judgment was therefore appropriate. The issues formerly raised in Colombini’s interlocutory appeals are moot because none of them alters the fact that Colombini failed to support any of his claims with evidence. Finally, the distriet court did not exceed its jurisdiction or abuse its discretion in awarding costs.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217018/ | MEMORANDUM *
Plaintiff Verizon Northwest, Inc. (“Verizon”), an incumbent local exchange carrier (“ILEC”), appeals from the district court’s summary judgment upholding a decision by the Washington Utilities and Transportation Commission (“WUTC”). The WUTC interpreted and approved Verizon’s interconnection agreement (“the Agreement”) with its competitor WorldCom, Inc. (‘WorldCom”), a competitive local exchange carrier (“CLEC”). The parties negotiated the Agreement pursuant to the Telecommunications Act of 1996 (“The Act”), Pub.L. 104-104, 110 Stat. 56 (codified in part at 47 U.S.C. §§ 251-261). The WUTC also assessed $66,000 in penalties against Verizon because it found that Verizon violated state law by withholding payment under the Agreement. WorldCom and the WUTC (“Appellees”) challenge our jurisdiction over the appeal.1
We affirm the district court’s summary judgment ruling upholding the WUTC’s *391interpretation of the Agreement requiring reciprocal compensation for ISP-bound traffic and requiring Verizon to continue paying reciprocal compensation for local calls beyond the two year expiration date. However, we conclude that the WUTC’s decision to impose penalties against Verizon was arbitrary and capricious and therefore reverse this part of the district court’s judgment affirming the WUTC’s assessment of $66,000 in penalties against Verizon.
I.
First, we reject Appellees’ challenge to our jurisdiction over Verizon’s appeal. After the Supreme Court’s recent decision in Verizon Maryland, Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002), Appellees’ jurisdictional arguments must fail. As we explained in Pacific Bell v. Pac-West Telecomm, Inc., 325 F.3d 1114, and 01-17161 (“Pacific Bell”), a decision that we filed today, the Supreme Court in Verizon Maryland held that 28 U.S.C. § 1331 provides a basis for jurisdiction over an ILEC’s claim that a state regulatory commission’s order requiring reciprocal compensation for ISP-bound calls is pre-empted by federal law. Verizon Md., 122 S.Ct. at 1758.
We also reject the two jurisdictional arguments that Appellees claim remain after Verizon Maryland. Verizon Maryland leaves little room to argue that § 252(e)(6) in any way limits federal court jurisdiction. Although the Court did not directly address the review of state law questions, Verizon Maryland explicitly states that “nothing in the Act displays any intent to withdraw federal jurisdiction under § 1331,” and that § 252 “does not distinctively limit the substantive relief available,” id at 1759. In light of the Court’s interpretation of § 252, we conclude that our review of state law issues under § 1331 is not precluded.
We also reject Appellee’s arguments that the Hobbs Act, 28 U.S.C. § 2343, precludes our review. Here, as in Pacific Bell, neither side seeks to re-adjudicate issues that already have been conclusively determined by the FCC. At most, they merely ask the court to interpret the FCC’s rulings, to the extent that they are final and binding, and to determine whether the WUTC’s actions here were consistent with federal law.
II.
The WUTC’s construction of the Agreement to require reciprocal compensation for ISP-bound traffic is also con-« trolled by our analysis and decision in Pacific Bell where we held that ISP-bound traffic is not exempt from the negotiated reciprocal compensation provisions of interconnection agreements. In Pacific Bell, as here, the appellant ILECs (Pacific Bell and Verizon California) argued that the state regulatory commission’s interpretation of the reciprocal compensation provisions of their interconnection agreements with CLECs was contrary to federal law. Specifically, the ILECS argued that a state regulatory commission’s inclusion of ISP-bound traffic in a reciprocal compensation provision was contrary to the FCC’s Remand Order, which exempted ISP-bound traffic from reciprocal compensation provisions. See In the Mater of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Inter-Carrier Compensation for ISP-Bound Traffic (“Remand Order”), 16 F.C.C.R. 9151, 9152-53 (2001). Because the D.C. Circuit explicitly rejected the FCC’s attempt to exclude ISP-bound traffic from reciprocal compensation, we concluded that federal law did not preclude the inclusion of ISP-bound traffic in the *392reciprocal compensation provisions of interconnection agreements. Pacific Bell; see also WorldCom, Inc. v. FCC, 288 F.3d 429, 430 (D.C.Cir.2002).
Although Verizon acknowledges that the D.C. Circuit rejected the FCC’s attempt to exclude ISP-bound traffic by calling it an “exception” under § 251(g) to the Act’s reciprocal compensation requirements, it argues that because the D.C. Circuit did not vacate the portions of the Remand Order establishing a cost-recovery mechanism for ISP-bound calls, the FCC’s conclusion that ISP-bound traffic is not subject to reciprocal compensation requirements still stands. Because the D.C. Circuit explicitly rejected the FCC’s analysis exempting ISP-bound calls from reciprocal compensation provisions2 and preserved only the prospective application of the interim alternative payment scheme for ISP-bound traffic as established in the Remand Order,3 we reject Verizon’s argument that the WUTC’s decision to include ISP-bound calls in the compensation agreement was contrary to federal law. Remand Order, 16 F.C.C.R. at 9189.
We also reject Verizon’s argument that the WUTC’s interpretation of “Local Exchange Traffic” to include ISP-bound traffic is contrary to federal law because longstanding FCC precedent establishes that ISP-bound traffic is not local. As we explained in Pacific Bell, the FCC has yet to resolve whether ISP-bound traffic is “local” within the scope of § 251. It was therefore not inconsistent with this provision and well within the WUTC’s authority for it to subject ISP bound traffic to reciprocal compensation.
III.
Verizon argues that the WUTC erred by interpreting the Agreement to require Verizon to continue paying reciprocal compensation for local calls beyond the two year expiration date. As a matter of contract interpretation, this issue is controlled by the terms of the Agreement and state contract law. We agree with the district court that the WUTC’s resolution of this issue was not arbitrary and capricious. See US W. Communications v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th Cir.1999).
Under Washington law, contract interpretation is governed by the “context rule” of the Restatement (Second) of Contracts §§ 212, 214(c) (1981). Berg v. Hudesman, 115 Wash.2d 657, 801 P.2d 222, 229-230 (1999). In contrast to the “plain meaning” rule, the “context rule” permits a court to look to extrinsic evidence to discern the meaning or intent of words or terms used by contracting parties, even when the parties’ words appear to the court to be clear and unambiguous. Id. at 222. However, extrinsic evidence is not admissible for the purpose of adding to, modifying, or contradicting the terms of a written contract, in the absence of fraud, accident, or mistake. Id.
Section VIII of the Agreement, titled “TERM,” laid out the terms of expiration as well as the terms under which the Agreement could be extended:
Notwithstanding the foregoing, this Agreement shall, if not superseded by an interconnection agreement, expire two years after the effective date of the Agreement. In the event that the Agreement expires after two years, the interconnection arrangements in this Agreement shall remain in place until the Parties are able to negotiate and implement a new interconnection agree*393ment. Negotiations on such a new agreement shall commence no later than 45 days prior to the expiration of this Agreement.
The WUTC concluded that WorldCom satisfied the extension provision by initiating negotiations on a new interconnection agreement more than 45 days prior to the expiration date of the Agreement. Verizon argues that the WUTC erred by not interpreting the 45-day deadline to incorporate the statutory procedures for negotiation and arbitration under 47 U.S.C. § 252. According to Verizon, WorldCom’s failure to comply with § 252 caused the extension to lapse.
Although Washington law permits the WUTC to consider extrinsic evidence even if contract terms are not ambiguous, it is not admissible for the purpose of adding to, modifying, or contradicting the terms of a written contract. The Agreement provided that its terms would be extended if, upon expiration, negotiations for a new agreement had commenced at least 45 days prior to that date. The negotiations having commenced more than 45 days pri- or to the date of expiration, the WUTC concluded that requiring WorldCom to also comply with the requirements of § 252 in order to avoid a lapse in that extension would have the effect of imposing additional extension terms. Accordingly, the WUTC’s interpretation of the Agreement to require only that WorldCom initiate negotiations 45 days prior to the expiration date was not arbitrary and capricious.
Next, we reject Verizon’s argument that the WUTC erred by interpreting the extension provision of the Agreement to apply to all interconnection arrangements, as opposed to only the physical connection between the parties’ networks. Because Verizon’s interpretation would have imposed a one-way obligation on WorldCom to continue terminating ISP-bound traffic originated by Verizon’s customers without compensation, the WUTC concluded that the term “interconnection arrangements” included all arrangements in the Agreement. Id. Although it may be possible that the parties intended to extend only the physical interconnection arrangements beyond the expiration date, it was not arbitrary and capricious for the WUTC to interpret the extension provision as applying to all interconnection arrangements.
IV.
Finally, we conclude that the WUTC’s decision to assess penalties against Verizon was arbitrary and capricious and therefore reverse the district court’s summary judgment upholding the penalty. The WUTC imposed penalties against Verizon for “unreasonable conduct” under sections 80.04.880 and 80.36.170 of the Washington Revised Code, concluding that it “subjected its competitor, WorldCom, to unfair and unreasonable disadvantage.” By refusing to pay for ISP-bound traffic under the Agreement’s reciprocal compensation provision because it claimed that the calls were not local but nevertheless billing its customers for this traffic as if the calls were local, Verizon’s actions were construed by the WUTC and the district court as “trying to have it both ways” and therefore warranting penalties under Washington state law.
The reasons the WUTC supplied for the imposition of sanctions here - that Verizon took inconsistent and self-serving positions with respect to the interpretation of the Agreement - do not constitute sufficient grounds for imposing penalties. It simply does not follow from Verizon’s attempt to characterize calls one way for the purpose of interpreting the reciprocal compensation and another way for customer billing that Verizon subjected WorldCom to unfair *394treatment or even that it was attempting to cut off the fees that WorldCom was due.
The WUTC’s justification for imposing penalties here does not even meet the standards that it has established for itself for determining when sanctions are appropriate.4 Verizon’s actions in support of its interpretation of federal law as it related to the Agreement do not merit sanctions under the WUTC’s own standards. The WUTC’s decision to impose sanctions in this ease was arbitrary and capricious and we therefore vacate the sanctions imposed by the WUTC. AFFIRMED in part, REVERSED in part
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. We review de novo the district court’s grant of summary judgment, see US W. Communications v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th Cir.1999); we also review de novo whether the WUTC’s rulings were consistent with the Act and its implementing regulations. Id. We review any state law questions raised by the WUTC’s interpretation of the Agreement under an arbitrary and capricious standard. US W. Communications, Inc. v. Wash. Utils. & Transp. Comm’n, 255 F.3d 990, 994 (9th Cir.2001).
. WorldCom, Inc. v. FCC, 288 F.3d 429, 434 (D.C.Cir.2002)
. WorldCom, Inc. v. FCC, 288 F.3d at 431.
. In MCIMetro Access Transmission Servs. Inc. v. U.S. W. Communications, Inc., 1999 WL 132851 (Feb. 10, 1999), the WUTC articulated eight factors to guide its decision whether to impose penalties:
whether (1) the offending conduct was associated with new requirements of first impression,
(2) the offending party should have known its conduct constituted a violation,
(3) the offending conduct was knowing or intentional,
(4) the offending conduct was gross or malicious,
(5) repeated violations occurred,
(6) the Commission previously had found violations,
(7) the offending conduct improved, and
(8) remedial steps were undertaken.
MCIMetro, WUTC No. UT-971063 (¶ 158); see also Wash. Utils. & Transp. Comm'n v. Elec. Lightwave, WUTC Nos. UT-001532, UT-001533, 2001 WL 514418, at *4 (Mar. 19, 2001) (citing MCIMetro). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217019/ | MEMORANDUM *
This case involves three separate appeals which were consolidated by this court. Jeffrey Modahl spent 14 years in prison following his conviction in 1986 for sexually molesting his daughter. In 1999, Modahl successfully petitioned in state court for habeas corpus relief. The court determined that the non-disclosure of certain items of evidence undermined the confidence in the outcome of Modahl’s trial. Modahl was not retried.
Modahl brought an action for damages pursuant to 42 U.S.C. § 1983 against various defendants, alleging that, while acting under color of state law, the defendants violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The defendants include: the County of Kern, Kern Country District Attorney Edward Jagels, Kern County Sheriff Lawrence Kleier, Deputy Sheriff Conny Ericsson, Sheriff’s Sergeant Brad Darling; Kern County District Attorney Office’s Child Sexual Abuse Coordinator Carol Darling, and Kern County Welfare Department Child Protective Services worker Velda Murillo. Modahl’s *396complaint alleged that the defendants (1) created false and unreliable testimony through coercive investigatory techniques of child witnesses; (2) suppressed exculpatory evidence; (3) failed to adequately supervise and train persons who violated Modahl’s constitutional rights; and (4) conspired together to violate Modahl’s constitutional rights.
On December 22, 2000, all of the defendants moved for summary judgment. The district court, by order dated March 21, 2001, denied all defendants’ motions for summary judgment, with the following two exceptions. The district court granted Kern County District Attorney Jagels’ motion for summary judgment on all claims based upon absolute prosecutorial immunity. The district court granted a motion for summary judgment as to Sheriff Kleier’s and Sergeant Darling’s supervisory personal liability on Modahl’s first claim regarding the creation of false testimony.1 The district court also ordered that there was no county liability as a matter of law for the official actions of Sheriff Kleier because he was a “state actor.”
Modahl moved to have a final judgment entered under Fed.R.Civ.P. 54(b) regarding the grant of absolute prosecutorial immunity to Edward Jagels. Final judgment was entered and Modahl timely appealed. Modahl petitioned to certify the district court’s summary judgment order for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b), regarding the denial of supervisor personal liability of Sheriff Kleier and Deputy Brad Darling, and also the denial of the county’s liability for Sheriff Kleier’s actions. The district court certified its order for interlocutory appeal and Modahl timely appealed. Five individual defendants, Sheriff Kleier, Deputy Brad Darling, Deputy Sheriff Conny Ericsson, Carol Darling, and Yelda Murillo, timely appealed the district court’s order denying them qualified immunity on various claims. See Johnson v. Jones, 515 U.S. 304, 311, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (an order denying immunity is considered a final order and may be immediately appealed).
A. Appeal No. 01-15669
The five individual defendants-appellants in this appeal are: Sheriff Lawrence Kleier, Deputy Sheriff Conny Ericsson, Sergeant Brad Darling; Kern County District Attorney Office’s Child Sexual Abuse Coordinator Carol Darling, and Kern County Welfare Department Child Protective Services worker Velda Murillo.
After the district court’s summary judgment order of March 21, 2001, the Supreme Court decided Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), which clarified the two-step qualified immunity inquiry. Additionally, this court decided Devereaux v. Abbey, 263 F.3d 1070, 1074-76 (9th Cir.2001), which applied the Saucier analysis to § 1983 *397claims related to an investigation and prosecution for child sexual molestation. In light of these legal clarifications, we vacate the judgment of the district court denying the appellants qualified immunity, and we remand to the district court to proceed with an individualized analysis under the current framework for claims of qualified immunity.
B. Appeal No. 01-16098
Modahl appeals the district court’s order granting absolute prosecutorial immunity to District Attorney Edward Jagels. Modahl’s complaint alleged that Jagels, as the district attorney, condoned or ratified alleged coercive questioning, failed to properly train or supervise his subordinates, causing a failure to disclose exculpatory evidence and the creation of unreliable child witness testimony, and conspired to fabricate evidence and to conceal exculpatory evidence. Upon de novo review of the district court’s order, we affirm the grant of absolute immunity to District Attorney Jagels on these claims.
Jagels, as district attorney, is considered a state official for purposes of § 1983 liability while preparing to prosecute and when prosecuting violations of state law, and also when training personnel for and when developing policy regarding the preparation for prosecution of violations of state law. Pitts v. County of Kern, 17 Cal.4th 340, 360, 366, 70 Cal.Rptr.2d 823, 949 P.2d 920 (1998). A state prosecutor is entitled to absolute immunity from liability under § 1983 for violating a person’s federal constitutional rights when he or she engages in activities “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). A prosecutor is granted only qualified immunity, however, if he or she is performing investigatory or administrative functions, or is essentially functioning as a police officer or detective. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).
Modahl argues that Jagels’ “nonadvocatory conduct” and administrative actions caused violations of his constitutional rights. However, our review of the record reveals that Jagels’ management and supervision of his staff involved actions preliminary to the initiation of prosecution and actions in preparation of the initiation of the criminal process and for trial. These actions fall within the sphere of prosecutorial duties, which are granted absolute immunity. Imbler, 424 U.S. at 430-31.
C. Appeal No. 01-17298
Modahl appeals the district court’s order granting summary judgment to Kern County Sheriff Lawrence Kleier and Kern County Sergeant Brad Darling on Modahl’s claim that they were personally liable for their failure to adequately train, monitor, and supervise their subordinates in the coercive questioning of child witnesses which resulted in false and unreliable testimony. Modahl also appeals the district court’s order that Sheriff Kleier was a state actor, and as such, the County of Kern could not be liable for his actions.
Sheriff Kleier concedes that under current law, the California sheriffs are generally acting on behalf of the county when performing law enforcement functions. See Brewster v. County of Shasta, 275 F.3d 803, 806 (9th Cir.2001). Therefore, we reverse the district court’s order regarding the county’s § 1983 liability for his actions.
We affirm the district court’s grant of summary judgment to Sheriff Kleier and Sergeant Darling on their personal *398liability as supervisors on Modahl’s claim regarding creation of false and unreliable testimony. The district court found that “there was no evidence that the supervisor was aware of facts from which an inference could be drawn that a subordinate was acting in an unconstitutional manner as to the questioning and coercion of witness testimony.” Modahl argues that the district court used an incorrect, overly demanding standard when the court stated, “The knowledge element of plaintiffs case requires proof that the supervisor was aware of facts from which an inference could be drawn that the subordinate was acting in an unconstitutional manner that carried a substantial risk of causing serious harm.” Modahl contends that district court used a subjective test of knowledge, and should have used an objective standard that asked whether the harm would be apparent to a reasonable person.
This court has stated that supervisors can be held liable for: (1) their own culpable action or inaction in the training, supervision, or control of subordinates; (2) their acquiescence in the constitutional deprivation of which a complaint is made; or (3) for conduct that showed a reckless or callous indifference to the rights of others. Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir.2000). We have held that there must be a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.1991). We have stated that in order to prevail on a claim that a supervisor failed to properly train subordinates, a plaintiff must show that the failure to train amounted to “deliberate indifference.” Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.1998).
Modahl contends that from 1984 to 1986, Sheriff Kleier and Sergeant Darling failed to train and supervise Deputy Ericsson and others in a manner consistent with protection of the rights of the accused, and that Kleier and Darling allowed Ericsson and others to be directed by social workers, specifically Velda Murillo, who improperly took the lead in interviewing child victims of sexual abuse. Modahl contends that Kleier and Darling knew or should have known that the social workers were supposed to focus on the best interests of the child for purposes of protective custody, rather than determining the facts of criminal conduct. Modahl contends that Kleier and Darling were supportive of or indifferent to their deputies’ relinquishment of their criminal investigative role to social workers.
Our review of the record reveals no evidence which could establish deliberate indifference on the part of Sheriff Kleier or Sergeant Darling in any alleged failure to train or supervise Deputy Ericsson or other subordinates. There is no evidence that Kleier or Darling, in 1984, 1985, and 1986, were aware, or reasonably should have been aware, that Deputy Ericsson or other subordinates were acting in an unconstitutional manner that carried a substantial risk of causing serious harm. Accordingly, we affirm the district court’s grant of summary judgment to Kleier and Brad Darling on Modahl’s claim of failure to supervise regarding the creation of false testimony. Each party shall bear its own costs on appeal.
In Appeal No. 01-15669, the judgment of the district court is VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
In Appeal No. 01-16098, the judgment of the district court is AFFIRMED.
In Appeal No. 01-17298, the judgment of the district court is AFFIRMED IN PART, REVERSED IN PART, AND RE*399MANDED FOR FURTHER PROCEEDINGS.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. The district court granted the summary judgment motion of Sheriff Kleier and Sergeant Darling on Modahl's second claim, finding no evidence that Sheriff Kleier and Sergeant Darling directly suppressed evidence, but the district court denied summary judgment on Modahl’s claim that they had supervisory liability for the suppression of exculpatory evidence.
In a prior order dated July 12, 2000, the district court dismissed allegations against Carol Darling on Modahl’s first claim that Carol Darling had personal or supervisory liability for creation of false and unreliable testimony. The court found that Modahl had failed to refute Carol Darling's claim of lack of involvement with the witnesses who testified against Modahl, and lack of supervision of Murillo and Ericsson. The court rejected Carol Darling’s defense of qualified immunity as to the second claim (suppression of evidence) and fourth claim (conspiracy to violate constitutional rights). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217020/ | MEMORANDUM**
Property owners (collectively referred to as “the Fureys”) appeal from summary judgment affirming the Forest Service’s decision to issue a special use permit to the Stanley Sewer Association (“SSA”) for the operation of a wastewater treatment plant on public land in the Sawtooth National Recreation Area (“SNRA”) near Stanley, Idaho.
The Fureys’ land adjoins the area over which the SSA plans to sprinkle the final product, the sewage effluent. The Fureys argue that, in reaching its decision and Finding of No Significant Environmental Impact (“FONSI”), the Forest Service (1) violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321, by failing to take the required “hard look” at the environmental consequences and by making a final decision before the Environmental Assessment (“EA”) was completed; (2) violated the Act establishing the SNRA (“SNRA Act”), 16 U.S.C. § 460aa, and regulations enacted pursuant to it; and (3) exceeded the 80-acre limitation for land use permits imposed by 16 U.S.C. § 497.
The Fureys argue that the environmental assessment was conducted in bad faith by outside personnel, and that the FONSI merely ratified a predetermined result. It may be that the claim is not exhausted, but even assuming that it is, we reject it. This NEPA claim fails because the record does not show that the Forest service made “any irreversible and irretrievable commitment of resources” before the FONSI. Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.2000) (internal quotation omitted).
The memorandum of understanding with SSA committed the Forest Service only to *400assisting with the EA, not to approving the project itself, nor does the existence prior to the FONSI of a tentative schedule for implementing the project demonstrate bad faith. See Friends of the Southeast’s Future v. Morrison, 153 F.3d 1059, 1063 (9th Cir.1998). At no time did the Forest Service’s involvement in the project “compromise the government’s absolute right to prevent all activity.” Id. (internal quotation omitted).
The six-page argument section of the brief also makes extremely summary claims that the Forest Service violated the SNRA Act (16 U.S.C. § 460aa), the Forest Plan, and 16 U.S.C. § 497.
We review the Forest Service’s compliance with the SNRA Act under the “arbitrary and capricious” standard. See 16 U.S.C. § 460aa-l; Neighbors of Cuddy Mountain v. United States Forest Service, 137 F.3d 1372, 1376 (9th Cir.1998). The Fureys’ argument does not demonstrate, under this deferential review standard, that the Forest Service violated the Act.
The same standard applies to the issue of whether the Forest Service violated the Forest Plan, and again, the brief argument does not demonstrate arbitrary or capricious action. See 36 C.F.R. § 219.10 (requiring site-specific agreements to comport with the Forest Plan); Citizens for Clean Air v. EPA, 959 F.2d 839, 844 (9th Cir.1992) (deferring to an agency’s interpretation of its own regulations).
As for the 80-acre argument, we do not have jurisdiction to consider it because it was not raised during the administrative process.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217021/ | MEMORANDUM*
Petitioner Hania Yazdi appeals the district court’s order granting in part and denying in part her motion to set aside, amend, or remit a bond forfeiture judgment on a townhouse. We affirm.
1. Petitioner first argues that the Government waived-its ability to foreclose on or sell the townhouse. We decline to reach this argument because it is raised for the first time on appeal. See Scott v. Ross, 140 F.3d 1275, 1283 (9th Cir.1998) (noting that this court ordinarily will not consider an issue that was not preserved below).
2. Petitioner also argues that the district court abused its discretion in refus*401ing to remit the judgment. See United States v. Amwest Sur. Ins. Co., 54 F.3d 601, 602 (9th Cir.1995) (describing standard of review). The district court considered Amwest in concluding that it would not exercise its discretion in Petitioner’s favor under Federal Rule of Criminal Procedure 46(e)(4) (2002) (renumbered as Fed.R.Crim.P. 46(f)(4) (2003)). In our view the court did not abuse its discretion. We note, among other factors, that Petitioner had constructive notice of the defendant’s deed of trust, which was recorded several months before the townhouse was transferred to her, that the amount of the bond was appropriate, and that the defendant willfully breached a condition of his release.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217022/ | MEMORANDUM**
Jose Luis Lopez-Zamora appeals the sentence imposed by the district court following his guilty plea conviction for attempted entry after deportation in violation of 8 U.S.C. § 1326. Lopez contends that the district court erred when it enhanced his guideline score by 16 levels. He asserts that the government did not establish that his prior conviction for violating California Health & Safety Code § 11379(a) constituted a drug trafficking offense. See USSG § 2L1.2(b)(l)(A).1 Because we agree, we vacate and remand.
To determine whether Lopez’s prior conviction under Section 11379(a) qualifies as a drug trafficking offense for federal sentencing purposes, we must apply a categorical approach. See Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-61, 109 L.Ed.2d 607 (1990); United States v. Corona-Sanchez, 291 F.3d 1201, 1203-04 (9th Cir.2002) (en banc). In United States v. Rivera-Sanchez, 247 F.3d 905, 908-09 (9th Cir.2001) (en banc), we held that California Health and Safety Code § 11360(a) does not facially qualify as a predicate offense under USSG § 2L1.2(b)(l)(A) because it criminalizes solicitation. Section 11379(a) contains identical language and also criminalizes solicitation. Solicitation offenses do *402not constitute aggravated felonies or drug trafficking offenses within the meaning of § 2L1.2(b)(1)(A) and the statutes to which it refers. See 8 U.S.C. §§ 1101(a)(48)(B), 1326; 18 U.S.C. § 924(c)(2); Rivera-Sanchez, 247 F.3d at 909.
Because Section 11379(a) does not facially qualify as a drug trafficking offense within the meaning of the Guidelines, we must next examine judicially noticeable facts to determine whether they establish that Lopez was convicted of an offense encompassed by § 2L1.2. See CoronaSanchez, 291 F.3d at 1211-12; United States v. Franklin, 235 F.3d 1165, 1170 & n. 5, 1172 (9th Cir.2000). The only evidence in the record (the charging document and a presentence report) was insufficient to establish that Lopez was actually convicted of a drug trafficking offense, as opposed to mere solicitation. See United States v. Sandoval-Venegas, 292 F.3d 1101, 1106 (9th Cir.2002); Corona-Sanchez, 291 F.3d at 1212-13; United States v. Martinez, 232 F.3d 728, 735 (9th Cir.2000).
Therefore, on this record the district court plainly erred in applying the 16 level drug trafficking enhancement to Lopez’s sentence. See Sandoval-Venegas, 292 F.3d at 1109; United States v. Portillo-Mendoza, 273 F.3d 1224, 1228 (9th Cir.2001); United States v. Casarez-Bravo, 181 F.3d 1074, 1078 (9th Cir.1999).
The district court may take further evidence at resentencing. See United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir.2002) (en banc). Moreover, because it is possible that upon imposition of a new sentence Lopez will have already served all or most of his period of incarceration, we encourage the district court to commenee a new sentencing proceeding quickly. To that end, we also order that the mandate issue immediately upon filing of this disposition. See Fed. R.App. P. 41.
VACATED and REMANDED for re-sentencing. The mandate shall issue immediately upon filing of this disposition.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. All references are to the November 1, 2001, version of the Sentencing Guidelines. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217023/ | MEMORANDUM**
Mark Ira Tannenbaum appeals the imposition of a sixteen-month sentence, fol*403lowed by a two-year period of supervised release for a probation violation. He argues that the combined term of imprisonment and supervised release erroneously exceeds the limit set forth in 18 U.S.C. § 3583(h). He also argues that the district court did not adequately consider his medical condition when it denied his request for a downward departure. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
DISCUSSION
1. Length of Sentence and Supervised Release Term
Tannenbaum’s first claim of error is that his overall sentence of imprisonment and supervised release could not exceed three years under 18 U.S.C. § 3583(h). While this statute limits any period of incarceration and supervised release to the original term of supervised release applicable to the underlying offense, the statute applies only to supervised release revocations. The statute governing probation violations, 18 U.S.C. § 3565(a)(2), provides that if a defendant violates a condition of probation, the court may “revoke the sentence of probation and resentence the defendant under subchapter A.” This provision authorizes a district court, upon finding a violation of probation, to sentence a defendant to any term of imprisonment and supervised release that was available at the tíme of the original sentencing. See United States v. Vasquez, 160 F.3d 1237, 1238 (9th Cir.1998); United States v. Plunkett, 94 F.3d 517, 519 (9th Cir.1996).
Because the district court’s sentence was within the range of sentences available at the time of the original sentencing, there was no error.
2. Departure Considerations
Tannenbaum also claims that the district court did not “properly” consider his medical condition in assessing whether a departure was warranted. His argument is belied by the record. The transcript of the dispositional hearing reveals that the district court expressly considered Tannenbaum’s medical evidence and that the court’s decision not to grant a downward departure was based upon the exercise of its discretion. Tannenbaum’s medical circumstances were also fully addressed in the original presentence report and by the district court at the original sentencing hearing. Such a discretionary refusal to depart is unreviewable on appeal. United States v. Pizzichiello, 272 F.3d 1232, 1239 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 206, 154 L.Ed.2d 84 (2002).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217026/ | MEMORANDUM *
1. For the reasons stated in our disposition in the companion case, Young v. Crofts, No. 01-35998, 2003 WL 1875504, we reverse the district court’s ruling that all named plaintiffs other than Gibson lacked standing on the ground, stated by the district court, that they did not formally apply for residency.
2. Based on our ruling in Young, the statute of limitations question presented in this appeal may now be moot, for plaintiff Gibson will likely be able to participate as a class member or a named plaintiff in the Young suit. If Gibson is able to obtain the same relief in the Young action, he will not be adversely affected by his inability to participate in this action. Whether the statute of limitations affects Gibson will depend in part on whether, and in what manner, the district court combines the two actions. We therefore decline to address the statute of limitations issue at this time.
3. The district judge did not abuse his discretion by refusing to recuse himself in this case.
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217027/ | ORDER**
This case is remanded to the district court for the limited purpose of allowing Plaintiff-Appellant James K. Boaz (“Boaz”) to either (1) file a statement that he stands on the complaint that was dismissed and does not intend to amend, or (2) move the district court to enter final judgment per its earlier order that if Boaz did not amend by a date certain, final judgment would be entered. Boaz shall contact the district court with his decision *408within 20 days of the filed date of this Order and provide notice to this court of the action taken. Failure of Boaz to carry out (1) or (2) above will result in the prompt entry of an order of dismissal for lack of jurisdiction. Following the occurrence of either (1) or (2), the district court is directed to enter final judgment.
The panel retains jurisdiction over this appeal.
REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217029/ | MEMORANDUM*** AND ORDER
In a previous appeal, we remanded the award of Rule 11 sanctions for clarification in the light of Christian v. Mattel, Inc., 286 F.3d 1118 (9th Cir.2002). Truesdell v. S. Cal. Permanente Med. Group, 293 F.3d 1146 (9th Cir.2002). On remand, the district court confirmed that the sanctions order was based solely on the filings in this case and not on Zamos’ history with Permanente. All references to that history were excised.
Zamos argues that he was entitled to another opportunity to argue all the merits of the sanctions order on remand. Neither the mandate nor due process required another hearing. A full hearing was held before the district court issued its initial Rule 11 order, and the second order relies on fewer, but the same, facts in support of the sanctions award. We already held (1) that the “complaint was sanctionable because it was both legally frivolous and factually misleading,” and (2) that the district court “did not abuse its discretion by ordering sanctions” on the ground that the complaint was misleading. Id. at 1153-54. The district court’s order must be affirmed.
We also grant Permanente’s opposed motion for sanctions under Federal Rule of Appellate Procedure 38, in the amount of $3,055, payable by Zamos personally. See Scott v. Younger, 739 F.2d 1464, 1467 (9th Cir.1984) (awarding sanctions for relitigation of issues previously decided by the court of appeals).
AFFIRMED; Jerome Zamos ORDERED to pay $3,055 in Federal Rule of Appellate Procedure 38 sanctions to Permanente.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217030/ | KLEINFELD, Circuit Judge,
concurring in part and dissenting in part.
I concur in the disposition but dissent from the order awarding sanctions under Federal Rule of Appellate Procedure 38. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217031/ | MEMORANDUM*
Carlos Manuel Cabrera appeals his convictions on four counts related to the distribution of controlled substances. We affirm. Because the facts are familiar to the parties, we recount them only as necessary to explain our decision.
1. The district court did not abuse its discretion in determining that Cabrera was not entitled to a jury instruction regarding entrapment. “A defendant need only present ‘slight’ evidence of two elements in order to receive an entrapment instruction: (1) inducement by a government agent to commit an illegal act that (2) the defendant was not predisposed to commit.” United States v. Burt, 143 F.3d 1215, 1218 (9th Cir.1998).
Cabrera did not present, nor solicit on cross-examination, even “slight” evidence tending to prove lack of predisposition. In particular, there is no evidence that Cabrera was reluctant to participate in the drug transactions.
Cabrera argues that the record lacked any evidence that he was involved in drug transactions prior to the sting operation and that this fact alone establishes a lack of predisposition. But the record is not quite as silent as Cabrera indicates: The government introduced uncontested evidence that a confidential informant identified Cabrera as a drug dealer. Additionally, Cabrera was knowledgeable about the street prices of drugs and was able easily to obtain drugs in short order on request. We find nothing in the record that tends to establish Cabrera’s lack of predisposition.
2. The district court did not abuse its discretion in limiting the cross-examination of agent Brooks. The charges against Brooks were not admissible under Federal Rule of Evidence 609, because that rule allows only for the admission of criminal convictions.
The circumstances surrounding Brooks’ criminal charges were only relevant, if at all, to the question of Brooks’ general credibility.1 See Fed.R.Evid. 608(b). Allowing cross-examination on those issues, however, would have added extraneous issues that had little, if any, probative value to the trial. The limitation on cross-examination was therefore a reasonable exercise of discretion by the district court. See id. (placing the decision to limit cross-examination within the discretion of the court); see also Hughes v. Raines, 641 F.2d 790, 793 (9th Cir.1981).
The judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. We do not address Cabrera’s argument that he was entitled to probe Brooks’ bias toward the government because of the charges pending against Brooks. Cabrera neither raised that argument in response to the government’s motion in limine, nor otherwise pressed that argument before the district court. See A-1 Ambulance Serv., Inc. v. County of Monterey, 90 F.3d 333, 337 n. 3 (9th Cir.1996) (declining to consider an issue not raised in the trial brief when the issue was not purely legal in nature). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217033/ | ORDER
The memorandum disposition filed on December 10, 2002, is withdrawn. The attached memorandum disposition is filed in its stead.
Fink’s petition for panel rehearing is denied as moot.
No further filings will be accepted in this closed appeal.
MEMORANDUM**
Former California state prisoner David M. Fink appeals pro se the district court’s judgment dismissing his civil rights action without leave to amend. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals for failure to state a claim, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we review for abuse of discretion dismissals without granting leave to amend, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). We affirm in part, reverse in part, and remand for further proceedings.
We affirm the dismissal because Fink’s claims effectively challenged the fact or duration of his confinement resulting from a conviction at a second hearing, and Fink failed to allege the conviction at the second hearing had been invalidated. See Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, the conviction at the second hearing was invalidated. Therefore, the district court *414should have granted leave to amend because Fink could have possibly cured the defects in his complaint by the allegation of other facts. See Lopez, 203 F.3d at 1127; Cline v. Brusett, 661 F.2d 108, 111—112 (9th Cir.1981) (claim pursuant to 42 U.S.C. § 1983 for malicious prosecution).
On remand, then, Fink must be allowed an opportunity to file an amended complaint. He may bring claims arising from either the first disciplinary proceeding, the second disciplinary proceeding, or both, in an amended complaint.
AFFIRMED, in part, REVERSED, in part, and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224306/ | *1176TABLE OF CONTENTS
ORDER PAGE
Report and Recommendation on Halibut Allocation (3/22/91) 1176
Report and Recommendation (10/3/91) 1181
Proposed Findings of Fact and Conclusions of Law (10/3/91) 1182
Order re Report and Recommendation Filed on October 3,1991 (6/18/92) 1202
Order Denying Motion for Summary Judgment on the Issue of Moderate Living and Denying Application for Protective Order (4/6/93) 1203
Order Dismissing Without Prejudice Phase II and Certain Subproceedings in Phase I (6/23/93) 1205
Order re: Chehalis Indian Reservation Boundaries (7/2/93) Order Modifying Paragraph 25 of Permanent Injunction (8/24/93) 1206
Order Granting Plaintiff Tribes’ Summary Judgment Motion That Shellfish Are Fish (9/2/93) 1216
Order on Five Motions Relating to Treaty Halibut Fishing (12/29/93) 1219
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 1993)
Sub-Proceeding # 91-1
REPORT AND RECOMMENDATION ON HALIBUT ALLOCATION
(Mar. 22, 1991)
JOHN E. WEINBERG, United States Magistrate Judge.
INTRODUCTION
Twelve tribes are authorized to fish for halibut by regulations of the International Pacific Halibut Commission (IPHC). That agency has also set a commercial harvest limit of 102,500 lb. of halibut for 1991 for all twelve of the tribes, but has not prescribed any allocation of that amount among the specific tribes.
Four of those tribes move for a preliminary injunction, which would set a ceiling of 70,100 lb. on the 1991 commercial harvest of halibut by the Makah Tribe. This would leave 32,400 lb. for the “moving tribes” and the other seven tribes. The four moving tribes are the Jamestown Klallam, Lower Elwha, Port Gamble, and Skokomish.
Pending resolution of the motion for a preliminary injunction, the court has closed treaty fishing for halibut. At the time of the closure, the 1991 halibut catches by the respective tribes were:
Weight Percentage
Makah 56,241 lb. 72.6%
Quileute 19,652 25.4
Lower Elwha 1,253 1.6
Lummi 280 0.4
Jamestown Kl. 12 0.0
7 other tribes 0 0.0
TOTAL 77,438 lb. 100.0 CATCH
Halibut are present in far greater numbers in the ocean than in “inside waters.” The Makahs and Quileutes, and certain other tribes, are entitled to fish for halibut in the ocean. All four of the moving tribes may fish only in the inside waters.
It is clear that unrestricted halibut fishing in the ocean by the tribes entitled to *1177fish there will quickly exhaust the entire tribal quota, and prevent the inside tribes from catching any significant number. It has not been established that, in so doing, the ocean tribes would be intercepting any significant number of fish headed for the inside waters. The parties dispute whether halibut migrate in any significant numbers from the ocean to inside waters. It is at least as likely that the ability of the ocean tribes to take the vast majority of the tribal quota arises from the much greater abundance of halibut in their usual and accustomed fishing grounds. If this is the case, the “inside tribes” would be able to take a substantial quantity of halibut only if the court were to cut off fishing by the ocean tribes. The inside tribes could then, perhaps, catch a substantial number of halibut in their relatively barren waters if permitted to continue over a long enough period.
SUMMARY OF CONCLUSION
The court should deny the motion for a preliminary injunction, and vacate its “Order Closing Treaty Halibut Fishery.” The twelve tribes entitle to fish for halibut should be permitted to resume until their total catch reaches the limit set by the IPHC.
THRESHOLD ARGUMENTS BY MAKAHS
The Makahs present two threshold arguments in opposition to the motion. The court should find neither of them persuasive.
First, they challenge the jurisdiction of this court, asserting they have not waived their sovereign immunity as to regulation of their halibut harvest. The parties’ lengthy briefs discuss this issue only sparsely; and they essentially ignored it in oral argument of the motion. The court should not resolve the motion on this basis.
Secondly, they urge that this dispute should be raised, if at all, in another case pending before this court and dealing with the treaty halibut allocation. That case is Makah v. Mosbacher, No. 85-1606M, pending before the Hon. Walter T. McGovern. Their argument in this respect is not persuasive. That ease apparently involves the overall treaty quota for halibut, not the allocation of that quota among the various tribes. The issues are therefore very distinct. Furthermore, no other tribes are parties to that case. Indeed, there are no parties in that case who could frame the issue of the proper allocation among the tribes.
IDENTIFYING THE APPLICABLE STANDARDS
While the motion before the court is labelled a “Motion for Preliminary Injunction,” the unique nature of this case, and its special circumstances, require the court to apply standards which are somewhat different than those applied in ruling upon a conventional motion for a preliminary injunction. The court has recognized this fact, and has acted accordingly, on myriad other occasions during the long history of this case.
First, the classic function of a preliminary injunction is to preserve the status quo, pending a final determination of the merits by the court. But this is not a meaningful or practical objective in this case. As a practical matter, the court’s ruling on this motion Will determine, once and for all, how the 1991 treaty halibut quota is to be allocated among the competing tribes. It is not possible to preserve the 1991 halibut harvest until the day in the hazy future when the court determines the general principles which are to govern allocation among tribes of the treaty share. The court’s ruling on the motion will be a *1178final determination, at least as to the 1991 harvest.
Next, a crucial standard the courts apply in ruling upon a motion for a preliminary injunction is whether the moving party has shown a likelihood of ultimate success on the merits. In the context of this dispute, that standard must be read to require the moving tribes to demonstrate a congruence between the relief they seek for 1991, and the long-term relief the court is likely to award on allocation generally. In other words, to succeed on this motion, plaintiffs must show what general allocation principles the court is eventually likely to decree; and then show that if those general principles were in place and enforced today, they would produce roughly the specific allocation they propose for 1991.
Finally, in ruling upon motions for preliminary injunctions, courts consider the “balance of hardships” between the parties, and any other equitable considerations that arise in the given case. These standards can be meaningfully applied in this case.
LIKELIHOOD OF SUCCESS ON MERITS
What general principles of allocation among competing tribes will the court eventually decree? On the present record, it is impossible to draw any firm conclusions, beyond pure speculation. In their briefing and argument on the pending motion, the parties have advanced many different standards. These include:
The relative quantities of the fish in question taken by the respective tribes at treaty time.
The relative abundance of the fish in each tribe’s usual and accustomed fishing area.
The number of members of each tribe who fish for a particular species.
The dollar investment of each tribe in gear designed to catch a particular type of fish.
The number of tribal members economically dependent upon the harvest of a given type of fish.
The catch history of the respective tribes in recent fisheries.
The relative efforts by each tribe in lobbying regulatory agencies, and in pursuing litigation, to increase the total treaty share.
There are no doubt many more such standards. Depending upon which standard or combination of standards is selected, the resulting allocation among tribes will be markedly different.
The court has not as yet placed its imprimatur upon any of the proposed standards. It will be appropriate to do so after a full litigation of sub-proceeding # 86-5. It would be neither fair nor appropriate for the court to adjudicate those standards on a rush basis to rule on a motion in this case. This is especially true because the court has only a limited group of tribes before it. Many others are vitally interested in the determination of the general principles governing allocation of the treaty share.
Without general allocation principles, it is impossible for the court to determine if the proposed limitation of the Makahs to 70% of the tribal share is high, low, or just about right. The moving parties have therefore not shown, and the court cannot determine, whether they are “likely to succeed on the merits,” in the sense that their requested allocation for 1991 conforms to the general allocation principles the court is likely to determine.
*1179BALANCE OF HARDSHIPS
The Makahs have demonstrated that they are able, and likely, to catch more than the 70,100 lb. of halibut which the preliminary injunction would allocate to them. They have thus demonstrated they would suffer an economic detriment if the motion were granted.
The four moving tribes, by contrast, have not demonstrated that they would, or even could, catch the 32,400 lb. the injunction would reserve — or any significant portion of that amount. The Makahs point to the very low catch of halibut by the moving tribes in prior years. In fairness, it is probably true that those low catches were in large part attributable to the very large catches by the Makahs and, to some extent, by other tribes. But even disregarding prior years’ statistics, the moving tribes have not shown they have the necessary fishermen or gear ready to go; nor have they demonstrated in any other way their capability and intention to take a significant amount of halibut if the injunction is granted.
The moving tribes have therefore failed to show that the balance of hardships tips in their favor.
OTHER EQUITABLE CONSIDERATIONS
Despite all of the foregoing, the moving tribes make a generalized argument that it is “clearly” inequitable to permit one tribe, the Makahs, to take more than 70% of the allocation to be shared among twelve tribes. While this argument might have a surface appeal, the facts of the 1991 halibut fishery demonstrate that the requested relief would do little, if anything, to improve the lot of the moving tribes.
What has surprised everyone this year is the success of the Quileutes, who are not a moving tribe and whose catch would not be limited by the requested injunction. The catch statistics for 1991 to date are set forth above. They show that, during a period when there was no regulation or court order in place allocating the total treaty share among the tribes, the percentage shares actually taken were:
Makahs 72.6%
Quileutes 25.4
moving tribes 1.6
Lummi 0.4
remaining tribes 0.0
Setting aside 10,000 lb. for ceremonial and subsistence purposes, 25,062 lb. remain of the treaty commercial quota. If the court denies the preliminary injunction, and the balance of the halibut are caught in roughly the same proportions as the halibut caught to date, the four moving tribes would take another 401 lb. of halibut.
By contrast, the requested preliminary injunction would permit the Makahs to resume their catch until they reach a total of 70,100 lb. The remaining 11,183 lb. of commercial catch would be allocated among the other 11 tribes. If those tribes took that remainder in the same proportions as their fishing to date, the moving tribes would take about 6.0%, or 671 lb.
In other words, entry of the preliminary injunction is likely to provide about 270 lb. of additional halibut to the moving tribes.
Viewed from another perspective, the Makahs seem headed toward a harvest of 74,415 lb. in the absence of a preliminary injunction. Granting the motion would reduce the Makah’s harvest by 4,315 lb. As counsel observed during argument, the real beneficiaries of that reduction would not be the moving tribes, but the Qui-leutes.
In summary, this analysis indicates that granting the requested relief would do little for the moving tribes, while imposing a much greater hardship upon the Makahs.
*1180CONCLUSION
For all of the foregoing reasons, the court should deny the motion for preliminary injunction. It might well be that the allocation principles the court will eventually determine will result in halibut shares different from what these tribes will enjoy on a “catch-as-catch-ean” basis in 1991. But the moving tribes have not established a legal right to preliminary relief allocating the halibut on any other basis.
As counsel for the Tulalips points out, this sub-proceeding is really just a “subset” of sub-proceeding no. 86-5. No. 91-1 focuses only on halibut, and only on the 1991 season; no. 86-5 concerns allocation generally, of all species and all seasons. The court’s ruling on this motion will, as a practical matter, be a final determination as to the 1991 halibut season. If the issues of halibut allocation generally can be raised in this case, they can and should be raised in 86-5.
Accordingly, I recommend the court dismiss this sub-proceeding at this time, without prejudice to any right of the parties to raise these allocation issues in sub-proceeding 86-5.
A proposed order accompanies this Report and Recommendation.
In light of the urgency, of the matter, I haves directed all parties to file any responses to this Report and Recommendation within one week after its filing, or by March 29,1991.
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Subproceeding No. 91-1
(April 13, 1991)
ROBERT E. COYLE, District Judge.
On March 22, 1991, United States Magistrate John Weinberg issued his Report and Recommendation on Halibut Allocation wherein he recommended that the court deny the' Motion for Preliminary Injunction filed by the Jamestown Klallam, Lower Elwha Klallam, Port Gamble Klal-lam, Skokomish Tribes (hereinafter referred to as the Moving Tribes). Magistrate Weinberg also recommended that this court dismiss Subproceeding No. 91-1 without prejudice on the ground that it is a “subset” of Subproceeding No. 86-5.
The Moving Tribes have timely filed objections to the Report and Recommendation. The Makah, the Quinault Nation, the Tulalip Tribes, and the State of Washington each have filed pleadings supporting the Report and Recommendation but suggesting certain revisions to it in the court’s order.
The court has reviewed the record herein and concurs in the Report and Recommendation to the extent that it recommends denial of the Motion for Preliminary Injunction for the reasons set forth in the Report and Recommendation. The court does not find the objections of the Moving Tribes or the Quinault Nation persuasive. However, the court does clarify that the terms “treaty entitlement” or “treaty share” are not intended to be dis-positive of the actual entitlement pursuant to the Stevens treaties.
The court does not concur with that portion of the Report and Recommendation recommending dismissal of this sub-proceeding and the incorporation of the halibut allocation issues into Subproceed-ing No. 86-5.
Accordingly, except as set forth herein, the court adopts the Report and Recommendation on Halibut Allocation and orders that the Motion for Preliminary Injunction is denied.
*1181The Order Closing Treaty Halibut Fishery filed on March 15, 1991 is hereby vacated.
REPORT AND RECOMMENDATION
Sub-Proceeding Nos. 83-3 and 83-117(T)C
(Oct. 3, 1991)
JOHN L. WEINBERG, United States Magistrate Judge.
INTRODUCTION
The court has consolidated some of the issues in these two cases, and has referred these consolidated issues to the United States Magistrate Judge. Certain of the consolidated issues have been reserved for later determination. The balance of the consolidated issues have been the subject of pretrial motions and then trial. This Report and Recommendation, and the Proposed Findings of Fact and Conclusions of Law which accompany it, set forth recommendations as to resolution of these issues.
GENERAL SUMMARY OF LITIGATION
Both cases relate to the fishing rights of two tribes which are federally recognized, but which never entered into treaties specifically reserving fishing rights.
The “Confederated Tribes of the Che-halis Indian Reservation” (“Chehalis Tribe”) has a reservation at the confluence of the Chehalis River and the Black River. These rivers are part of the Grays Harbor system. The Shoalwater Bay Tribe’s reservation is on Willapa Bay. Each of these reservations was created by an Executive Order, not by treaty. The Chehalis Reservation is within the case area of U.S. v. Washington, but the Shoalwater Bay Reservation is not.
The State initiated sub-proceeding 83-3, seeking a determination of these issues:
— Which tribes can take fish from the Chehalis River?
— Which tribes can take fish from the Grays Harbor system?
— That any fish caught by non-treaty tribes are to be charged fully to the “Tribal 50% share,” not to the non-Tribal share.
The Chehalis and Shoalwater Bay tribes initiated a separate lawsuit, C83-117(T)C, asking the court to declare that:
— Each tribe may fish on its own reservation.
— Each tribe may fish off its reservation, at its usual and accustomed fishing grounds, based upon aboriginal fishing rights.
— Each tribe may fish off its reservation, because the Executive Orders which established the reservations created or preserved such rights.
— Each tribe may fish at all locations where the Quinault Tribe is entitled to fish, as these two plaintiff tribes are “affiliated” tribes with the Qui-naults.
The court has ordered partial consolidation of the two cases, for resolution of only these issues:
— The rights, if any, of these two tribes to fish free of State regulation in the Chehalis River system, the Grays Harbor system, Willapa Bay, the rivers and streams emptying into Willapa Bay, and waters adjacent to Willapa Bay.
— How to allocate the catch of these two tribes
The consolidated issues have been referred to the United States Magistrate Judge. While the matter is pending resolution, the catch of the two tribes is to be *1182allocated half to the treaty share, and half to the non-treaty share.
Not consolidated or referred, and reserved for later determination in each case, are these issues:
— the rights of these two tribes to catch fish in locations other than those listed above.
— equitable adjustment claims
After a flurry of activity when these cases were filed, the parties asked the court to defer action so they could try to negotiate a settlement. These negotiations continued for a number of years, until the court finally required the parties to conclude a settlement, enter a dismissal, or litigate the issues. They were unable to settle it, and unwilling to dismiss it, and therefore proceeded with discovery, pretrial motions and trial.
Certain of the consolidated issues have been reserved for later determination. They include:
— disputes as to the actual boundaries of the two reservations
— whether the State has authority to regulate whatever fishing rights these tribes might have
— how the catches of these two tribes are to be allocated, between the Treaty and the non-Treaty share
The parties filed six dispositive pretrial motions. The court took these under submission, and indicated it would address the issues raised by the motions in recommending rulings on the merits. Trial was conducted October 15 through 25, 1990. Following the preparation of a transcript of the trial, the parties filed extensive post-trial briefs and proposed findings in February of 1991.
SUMMARY OF RECOMMENDATION
As set forth in the accompanying Proposed Findings of Fact and Conclusions of Law, the court should rule that these two tribes have no off-reservation fishing rights different from those of any citizen.
Once the court has made a final ruling on the issues addressed at this stage, it should consider remanding the matter to the United States Magistrate Judge for resolution of the three issues (listed above) which were consolidated but reserved for later determination.
Ultimately, the parties and court must address the issues which have not been consolidated, and which remain in the two original cases.
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Sub-Proceeding Nos. 83-3 and 83-117(T)C
(October 3, 1991)
JOHN L. WEINBERG, United States Magistrate Judge.
On the basis of the testimony and other evidence admitted at trial, and the arguments of counsel, the following findings of fact and conclusions of law are recommended for adoption and approval by the court.
FINDINGS OF FACT
Identity of Tribes
1. The Confederated Tribes of the Chehalis Indian Reservation (“Chehalis Tribe”) is composed of the descendants of Upper Chehalis who settled on the Chehal-is Reservation. Membership in the Che-halis Tribe is drawn from the descendants of the Indians listed on the Chehalis Reservation census roll of January 1, 1939, *1183and descendants of the original allottees of Chehalis Reservation land. Upper Che-halis, Lower Chehalis, Satsop, Cowlitz, or other particular tribal heritage is not a criterion for membership, [Ex. SH/CH-M-243; R. 258-59, 273-76], although the membership of the Chehalis Tribe is largely composed of persons of some degree of Upper Chehalis ancestry. [Ex. USA-M-42 at 1.] Members are not permitted to be enrolled in any other Indian tribe. [Ex. SH/CH-M-243.]
2. The Chehalis Indian Reservation is located near the confluence of the Black and Chehalis Rivers, near the town of Oakville, in Lewis County, Washington. Issues as to the boundary of the Chehalis Reservation are reserved for later determination.
3. The Shoalwater Bay Indian Tribe is composed of the descendants of a small group of Indians of Chinook and Lower Chehalis ancestry who settled on the Shoalwater Reservation. Membership is drawn from the descendants of 11 individuals whose names appear on the voter list for the 1935 Indian Reorganization Act election on the Shoalwater Reservation. [R. 562-63; Ex. SH/CH-M-218.] Chinook or Lower Chehalis ancestry is not a criterion for membership in the Shoalwater Bay Indian Tribe, [Ex. SH/CH-M-76; R. 564], although the membership of the Shoalwater Bay Indian Tribe is largely composed of people of some degree of Lower Chinook and Lower Chehalis ancestry. [Ex. USA-M-42 at 1.] The Shoal-water Bay Constitution also prohibits members from being enrolled in any other Indian tribe. [Ex. SH/CH-M-76.]
4. The Shoalwater Bay Indian Reservation contains approximately 334 acres of land above the ordinary high water mark on the north end of Willapa Bay, in Pacific County, Washington. Whether the reservation boundaries included tidelands or the bed of the bay is reserved for later determination.
5. Neither the Confederated Tribes of the Chehalis Indian Reservation, the Shoalwater Bay Indian Tribe or the aboriginal tribal groups from which their membership is descended are party to the Treaty of Olympia (or Treaty with the Quinault), 12 Stat. 971, or any other ratified treaty with the United States. [Complaint No. 83-117 ¶ 4.5; Ex. USA-M-42 at L]
6. The Court has previously found that the Quinault Nation “is recognized by the United States as a currently functioning Indian tribe maintaining a tribal government on the Quinault Reservation and is composed of the Quinault and Queets Band of Indians, and other fish-eating Indians of the Olympic Peninsula who were allotted on the Quinault Reservation.” United States v. Washington, 384 F.Supp. 312 at 374, FF. 119 (W.D.Wash.1974).
7. The Quinault Nation is a political successor in interest of some of the tribes or bands which were parties to the Treaty of Olympia, Id. It possesses adjudicated off-reservation treaty fishing rights. United States v. Washington, 384 F.Supp. at 374-75, FF. 120, 121; 459 F.Supp. 1020, 1097 (1978), aff'd, 573 F.2d 1123, 1130-32 (9th Cir.1978); 626 F.Supp. 1405, 1492, 1494 (W.D.Wash.1985), aff'd, 761 F.2d 1419 (9th Cir.1985).
8. Membership in the Quinault Nation is equally open to any individual who has 1/4 or more in the aggregate Quinault, Queets, Quileute, Hoh, Chehalis, Chinook, or Cowlitz ancestry and who is not a member of any other federally recognized tribe. [Ex. QN-M-315; R. 739.] The membership of the Quinault Indian Nation includes a large number of individuals of Chehalis, Chinook, and Cowlitz ancestry. [Ex. QNM-323A; R. 740.] All enrolled Quinault *1184tribal members have the same rights, privileges, and obligations. R. 739. Many members of the Quinault Nation who participate in its off-reservation fishery in Grays Harbor and the Chehalis and Humptulips Rivers possess Chehalis or Chinook ancestry. [R. 740-41.]
Claim to Aboriginal Fishing Rights
9. In 1851, Dr. Anson Dart negotiated treaties dealing with several groups of Chi-nook Indians on the Columbia River and on Willapa Bay. Among those treaties were treaties with the Wahkiakum Chi-nook, the Lower Chinook, and the “Whee-lapa” Chinook. [Ex. W-M-15 (Wheelapa treaty); W-M-16 (Wahkiakum treaty); W-M-ll (Lower Chinook treaty).]
10. The 1851 Dart treaty with the Wheelapa purported to obtain a cession from the last remnants of the Kwalioqua Band of Indians. [Ex. W-M-15.]
11. The 1851 Dart treaties, as written, included certain provisions for a fishing right for the tribes who entered into the treaties. [Ex. W-M-15,16,11.] The treaties negotiated by Dr. Anson Dart were never ratified by the Senate and never became a law of the United States of America. [Tr. 816; Ex. USA-M-42 (Lane Written Direct) at p. 10.]
12. Dart’s understanding was that he had purchased all of the lands of the various “tribes and bands” of Indians surrounding Willapa Bay and extending up the Columbia River for about 60 miles from its mouth. [Ex. USA-M-42, p. 8 (Also Lane Written Direct at p. 8).]
13. The 1851 Dart treaty with the Wheelapa Band of Chinook and Lower Chinook encompassed the area of Southwest Washington including the lands around Willapa Bay. The Wheelapa treaty made provision for a large general reservation encompassing Willapa Bay region and adjacent lands from the Chehalis River south. [Ex. USA-M-42, p. 3 (Also Lane Written Direct at p. 3; W-M-15 (Wheelapa treaty); W-M-112 (S.Rep. No. 503, 62d Cong., 2d Sess., pp. 2-3).]
14. The “Wheelapa Band of Chinook” were survivors of an Athabaskan speaking enclave who occupied headwaters of the Willapa River and Chinook speakers who occupied the lower reaches of the Willapa River. The “Lower Band of Chinook” included those Chinook bands that occupied Willapa Bay and the streams draining into it as well as those on the lower Columbia. [Ex. USA-M-42, p. 8 (Also Lane Written Direct, p. 8); USA-M-48 (Dart to Lea, 11/7/1851).]
15. The unratified Dart treaties with the “Wheelapa Band of Chinook” and “Lower Band of Chinook” contained land cession provisions [Ex. USA-M-46 (Lower Chinook article 1st); USA-M-47 (Wheela-pa Chinook article 1st).] The Wheelapa treaty purported to cede:
The said Wheelapa Band of Indians, hereby cede to the United States, all the land claimed or owned by the said Band. The land intended to be hereby ceded is bounded on the North by lands owned by the Cheehales tribe of Indians, on the East by lands of the Cowlitz Band of Indians, on the South by lands of the Waukikum and Lower Bands of Chinooks, and on the West by the Coast and Shoalwater Bay.
The Lower Chinook treaty purported to cede:
Beginning at the mouth of a certain stream entering Gray’s Bay, on the north side of the Columbia River, which stream forms the western boundary of lands, ceded to the United States by the Waukikum Band of Chinooks; running thence Northerly on said western boundary to lands of the Wheelapa Band of Indians; thence westerly along said *1185lands of the Wheelapa Band, to the Shoalwater Bay; thence Southerly and Easterly following the Coast of the Pacific Ocean and the Northern shore of the Columbia to the place of beginning. The above description is intended to embrace all the lands owned or claimed by said Lower Band of Chinook Indians.
16. In about 1906, Dr. McChesney, working for the Indian Department, was given the task of assembling the rolls of descendants of the Chinook people signatory to the unratified treaties of 1851.
17. On August 24, 1912, Congress appropriated money to compensate the descendants of the signers of the Anson Dart treaties. The 1906 McChesney rolls list the individuals to whom compensation was paid pursuant to the 1912 Act. [Tr. of October 15, 1990, p. 86.] Twenty thousand dollars was paid to the Lower Chinook. Five thousand dollars was paid to the Wheelapa Chinook Indians. Seven thousand dollars was paid to the Wahkiakum Chinook Indians. 87 Stat. 518, 535.
18. A congressional report accompanying the Act of August 24, 1912, reads:
The [Dart] treaties were duly submitted by the President to the Senate for ratification, but they were neither ratified nor rejected. Nevertheless, the Government took possession of both the ceded and reserved lands, and most of them have been disposed of under the public-land laws. The Indians were disposed of all their lands and of all of the rights and privileges granted them by the [Dart] treaties.
[Ex. W-M-112 (S.Rep.508, pp. 2-3).]
19. By appropriating money in the Act of August 24, 1912, to pay the descendants of the Lower Chinook, Willapa, Kwalioqua and Wahkiakum, the Congress confirmed that it had extinguished all aboriginal land title of those Indians. The plaintiff tribes do not hold or possess aboriginal land title of the Lower Chinook, Wheelapa Chinook, Willapa (Kwalioqua), Wahkiakum Chinook, because those rights were taken and the extinguishment was later confirmed by payment under the Act of August 24,1912. The extinguishment of title to those lands extinguished all fishing rights in those areas. See Conclusions of Law 22 through 35.
20. By appropriating payment in the Act of August 24, 1912 to pay to the descendants of the signers of the unratified Dart treaties with the Lower Band of Chi-nook and the Wheelapa Band of Chinook, Congress confirmed that it had taken all lands that would have been ceded by the treaties and had extinguished all aboriginal title and any fishing rights related to those lands. The plaintiff tribes do not hold or possess aboriginal fishing rights in the area that would have been reserved or ceded by the Dart treaties, including Shoalwater Bay and its environs, as described in Findings of Fact 12, 13, and 15, above.
21. Between 1854 and 1863, the Washington Territory Surveyor General surveyed approximately 2,800,000 acres. The survey was to prepare for land sales and dispersal of land for settlement by non-Indians. These lands were primarily in the Puget Sound and Southwest Washington area. The survey included all the townships around Grays Harbor and Shoalwater Bay and much of the Chehalis River valley. [Tr. 983-990.]
22. In 1863, Abraham Lincoln issued an Executive order that opened lands in Southwestern Washington for sale or settlement by non-Indians. The opening of lands for sale in 1863 was inconsistent with tribal exclusive'use and occupancy of any remaining Indian tribes and extinguished any remaining aboriginal title in Southwest *1186Washington, including Grays Harbor and Willapa Bay.
23. The Court finds that the United States took the aboriginal title of the Upper and Lower Chehalis, Cowlitz, Chinook, and all other Indians in Southwest Washington by its actions in settling or conveying the lands to non-Indians. That extin-guishment occurred not later than 1863.
24. The plaintiff Confederated Tribes of the Chehalis Indian Reservation, along with individual Indians, brought an action before the Indian Claims Commission to ask for compensation for the extinguishment of the aboriginal title of the Upper and Lower Chehalis Indians. [Ex. W-M-126 (Complaint, ¶ X).]
25. The Indian Claims Commission found that the United States had previously extinguished the aboriginal title of the Upper and Lower Chehalis Indians and made a finding as to the land which those groups had held by aboriginal title. [Ex. W-M-129 (8 Ind. Cl. Com. 436).] The parties to the Chehalis Indian Claims Commission proceeding litigated the area of aboriginal title taken but did not litigate the value of that taking. Instead, the claim was settled on an amount of damages of $754,000. [Ex. SH/CH-M-414 (12 Ind. Cl. Com. 644).]
26. The I.C.C. made a specific finding that a Lower Chehalis Tribe held aboriginal title to a certain area, and an Upper Chehalis Tribe held aboriginal title to an adjacent area. [Ex. W-M-129 (8 Ind. Cl. Com. at 461-62).] The I.C.C. found that after abortive treaty negotiations in 1855, that as of March 3,1855, the United States dealt with all Upper and Lower Chehalis lands as public lands and extinguished the aboriginal title to those lands. [Ex. W-M-129 (8 Ind. Cl. Com. at 462).] In 1964, Congress appropriated money to pay the Chehalis Indian Claims Commission award. P.L. 88-327, 78 Stat. 204 at 213. [Ex. W-M-154.]
27. Congress did not pay the Chehalis Indian Claims Commission award to the plaintiff Confederated Tribes of the Che-halis Indian Reservation nor to the Shoal-water Bay Indian Tribe. Instead Congress charged the Bureau of Indian Affairs with compiling a roll of persons who were descended from the aboriginal Chehalis Indians. 25 U.S.C. § 1151. Congress made the payment to that roll of descendants.
28. The extinguishment of Upper Che-halis and Lower Chehalis aboriginal title found by the I.C.C. included subsidiary Indian groups labelled as the Satsop Tribe, Humptulips Tribes, Hoquiam, Wynoochee, and Wiskah Indians. [Ex. W-M-129 (8 Ind. Cl. Com. at 460).]
29. An individual Indian named Simon Plamondon brought a claim on behalf of the Cowlitz Tribe of Indians. [W-M-138]. The I.C.C. found that a Cowlitz Tribe of Indians once held aboriginal title to lands in Southwestern Washington, and that following the Presidential Proclamation of March 20, 1863, the United States extinguished aboriginal title of the Cowlitz Tribe. [Ex. W-M-138 (25 Ind. Cl. Com. at 441-42).]
30. Upon report of the I.C.C. that it found that aboriginal title of the Cowlitz Tribe had been extinguished without compensation, Congress appropriated funds to pay the award of the I.C.C. [Ex. W-M-154.]
31. Various persons brought a claim to the I.C.C. on behalf of the Chinook Tribe of Indians. The I.C.C. found that a Chi-nook Tribe of Indians once held aboriginal title to lands in Southwestern Washington, but that the United States had extinguished all aboriginal title to the Chinook Tribe. [Ex. SH/CH-M-86.]
*118782. Upon report of the I.C.C. that it found that aboriginal title of the Chinook Tribe had been extinguished without fair compensation, Congress appropriated funds to pay the award of the I.C.C. [Ex. W-M-154.]
S3. All aboriginal fishing rights of groups to which plaintiff tribes claim suc-cessorship were extinguished with aboriginal title.
34. The conduct of the United States government in appropriating money to pay the I.C.C. awards confirms that the United States government had in fact extinguished the aboriginal title of the Upper Chehalis, Lower Chehalis, Cowlitz and Chinook Indians as found by the I.C.C.
35. The plaintiff tribes cannot claim the aboriginal fishing rights of the Upper Che-halis, Lower Chehalis, Humptulips, Satsop, Hoquiam, Wynoochee, Wiskah, Cowlitz, and Chinook Indians because those aboriginal fishing rights, to the extent they once existed, were extinguished with aboriginal land title.
Claim to Rights Under Treaty with Ouinaults
36. On August 30, 1854, the Acting Commissioner of Indian Affairs notified Governor Isaac I. Stevens of his appointment to negotiate treaties with all tribes in the Washington Territory. United States v. Washington, 384 F.Supp. at 354, FF. 17. [Ex. USA-M-52.]
37. The United States’ principal purposes were to extinguish Indian claims to the land in Washington Territory and provide for peaceful and compatible coexistence of Indians and settlers, and between settlers and the government. 384 F.Supp. at 355, FF. 19. [R. 103-04, 616.]
38. In December, 1854 and January, 1855, Governor Stevens negotiated the Treaties of Medicine Creek, 10 Stat. 1132; Point Elliot, 12 Stat. 927; Point No Point, 12 Stat. 933; and Makah, 12 Stat. 939.
39. On February 24, 1855, Governor Stevens arrived on the Chehalis River to hold a treaty council with all of the remaining Indians of Western Washington of which his treaty commission had knowledge, except for part of the Klickitat and Upper Chinook which were not invited. [Ex. USA-M-42 at 16; USA-M-59 at 1; R. 1083.]
40. On February 27, 1855, the Treaty Council was commenced with, representatives of the Upper Chehalis, Lower Che-halis, Cowlitz, Lower Chinook, Quinault and Queets tribes present. [Ex. USA-M-59 at 1-2.] In the proposed treaty presented by Governor Stevens, the United States sought a voluntary cession of the Indians’ lands. In exchange for the cession the treaty would have reserved to each of the tribes the “right of taking fish at all usual and accustomed grounds and stations” and provided for the establishment of a reservation to be located between Grays Harbor and Cape Flattery. [Ex. USA-M-59 at 20-21.]
41. Representatives of the Chehalis, Chinook, and Cowlitz objected to being placed on a single reservation north of Grays Harbor and refused to sign the treaty. [Ex. USA-M-42 at 17-20; USA-M-59.] They sought reservations in their own territories and the right to continue fishing at their own fisheries. [Ex. USA-M-42 at 18-20; USA-M-59; R. 102-03.] Only the Quinault and Queets, together with Governor Stevens, signed the offered treaty. [Ex. USA-M-59 at 12, 23.] When it became clear that the other tribes were unwilling to sign, Governor Stevens terminated the treaty council and announced that there would be no treaty. [Ex. USA-M-42 at 20; USA-M-59 at 12-19.]
42. At the Treaty Council Governor Stevens learned for the first time of the *1188existence of the Quileute and Hoh. [Ex. USA-M42 at 16; USA-M-59 at 1-2; R. 613-14.] Governor Stevens returned to Olympia where, before leaving for treaty negotiations in eastern Washington, he prepared a new treaty draft covering only the Quinault, Quileute, Queets, and Hoh. [Ex. USA-M-42 at 21; R. 106, 115.] The new treaty draft added the Quileute and Hoh as parties. References to the Upper Chehalis, Lower Chehalis, Chinook and Cowlitz, who were not to be party to it, were deleted. The cession area described in the treaty and the amount of money to be paid were amended to reflect the change in parties, and instead of providing for the establishment of a single reservation, it provided for the reservation of a “tract or tracts.” [Ex. USA-M-42 at 22; compare Ex. USA-M-59 at 20-23 to Ex. SH/CH-M-266 (12 Stat. 971).] The change allowing the establishment of more than one reservation likely was made in order to avoid a second failure to conclude a treaty in the event the Quileute and Hoh resisted removal to the Quinault Reservation. In fact, the Quileute and Hoh did refuse to leave their territories and separate reservations were eventually established for them. [Ex. USA-M-42 at 23.]
43. Governor Stevens gave instructions to Michael Simmons to obtain the signatures of the Quinaults and Quileutes on the revised treaty. [Ex. USA-M-60.] Simmons met with the Quinault, Queets, Qui-leute, and Hoh at the Quinault River on July 1, 1855, and obtained their agreement to the Treaty with the Quinault. [Ex. QNM-133 at 4; Ex. USA-M-42 at 22.] Governor Stevens signed the Treaty in Olympia on January 25, 1856, hence its alternate name, the Treaty of Olympia. [Ex. USA-M-42 at 22.]
44. Governor Stevens also instructed Simmons to advise the other groups who had been at the Chehalis River Council in February, 1855 that he would treat with them further in Olympia. Governor Stevens apparently intended to attempt to negotiate a separate treaty with the Che-halis, Chinook, and Cowlitz groups on his return from eastern Washington. [Ex. USA-M-42 at 23-24; USA-M-60; R. 115-16, 1084-85.] Governor Stevens also appears to have considered the possibility that he would be unable to conclude a treaty with these groups and suggested to the Commissioner of Indian Affairs that in such event Congressional action removing them might be necessary. [Ex. USA-M-42 at 24; USA-M-62.] In contrast to his insistence at the Chehalis River Council that the Chehalis, Chinook and Cowlitz remove to a reservation north of Grays Harbor, Governor Stevens instructed Simmons to advise the Upper Chehalis and Cowlitz that they might be incorporated with the Nisqually, and that the Chinooks, Shoalwater Bay and Lower Chehalis might have their own reservation with fishery and potato grounds. [Ex. USA-M-42 at 24; USA-M-60; R. 1056-58.]
45. Before Governor Stevens could return to conduct further treaty negotiations with the Chehalis, Chinook, and Cowlitz, war broke out and occupied his attention. After the war Congress refused to ratify the treaties that Stevens had already negotiated or pay the expenses of the war. Stevens returned to Washington, D.C. to lobby for ratification of the treaties and funds. The civil war and its aftermath followed. In this unsettled period no further arrangements were made to treat with the Chehalis, Chinook, and Cowlitz and a treaty was never concluded with them. [R. 215-17.]
46. The Treaty with the Quinault was ratified in 1859. [Ex. SH/CH-M-266 (12 Stat. 971).] No evidence was presented that the Senate understood the Treaty to deal with any tribes other than the named *1189parties, nor is there any evidence to suggest that Stevens, Simmons or any other officer of the United States involved in the negotiation of the Treaty thought it dealt with the Chehalis, Cowlitz, or Chinook. [R. 623-24.] Similarly, there is no evidence to suggest that the Quinault, Qui-leute, Hoh, or Queets parties to the Treaty thought it dealt with the other tribes who had been at the failed Chehalis River Council. [R. 624.] Moreover, after the negotiation of the Treaty, the Chehalis, Chinook, and Cowlitz thought they were still to be treated with and expressed a desire to treat, [R. 624-25; Ex. W-M-40 at 13], indicating their understanding that the Treaty with the Quinault did not deal with them. [See R. 636.] The general understanding that the Chehalis, Chinook, and Cowlitz were not dealt with through the Treaty with the Quinault is further confirmed by consistent reports of the local agents published in Annual Reports of the Commissioner of Indian Affairs describing these groups as “not treated with,” “not party to any treaty” or the like. [See, e.g., EX. QN-M-53 at 334; QN-M-54 at 233; QN-M-55 at 397, 404; QN-M-56 at 422; QN-M-58 at 536; QN-M-60 at 76-79; QN-M-68 at 278; QN-M-77 at 150.]
47. There is no evidence to suggest that the tribes that were parties to the Stevens treaties understood the treaties to provide for the sharing or transfer of the fishing rights among the tribes party to the treaties. [R. 625, 627-8.] Similarly, there is no evidence to suggest that the United States or the tribes party to the Treaty with the Quinault understood it to provide for the transfer or sharing of fishing rights reserved by the tribal parties with tribes not party to the Treaty. [R. 629.]
48. In 1859 it was decided to protect land for the Upper Chehalis and Satsop at the confluence of the Black and Chehalis Rivers and notice was published that a reservation would be established at that location. [R. 631-32; Ex. USA-M-42 at 36; QN-M-163-64.] A portion of this land was eventually set aside as the Chehalis Reservation. [Ex. USA-M-42 at 36.] Instead of a treaty, the Chehalis Reservation was set apart by Secretarial Order of July 8, 1864, after the Commissioner of Indian Affairs advised the Secretary of the Interi- or that the Chehalis had resisted all suggestions to jointly occupy other reservations. [Ex. USA-M-42 at 38; SH/CH-M-319.] Two years later the Shoalwater Reservation was established by Presidential Executive Order of September 22, 1866. [Ex. USA-M-42 at 39; SH/CH-M-36.] Both Orders are limited to reservations of specifically described lands. They contain no language in any way comparable to the express reservation of off-reservation fishing rights contained in the Stevens treaties.
49. The Treaty with the Quinault does not designate the location of the reservations to be established for the Indian parties. In 1859 after the ratification of the Treaty, Michael Simmons proposed establishment of a reservation encompassing approximately six sections between Point Grenville and the mouth of the Quinault River. [Ex. USA-M-79; QN-M-56 at 419-20.] The reservation was surveyed in 1862. [Ex. USA-M-42 at 26,]
50. In 1871 only the Quinaults were living on the reservation. [Ex. QN-M-68 at 288.] At the time there were only three reservations in southwestern Washington. [Ex. USA-M-42 at 29.] In addition to the three reservation communities there were a number of small bands of Indians who had not moved to any reservation whose tenure was threatened by settlers and land speculators. [Id. at 29-30.]
*119051. Superintendent Milroy in his 1872 annual report proposed the enlargement of the Quinault Reservation. [Ex. USA-M-42 at 26-28; QN-M-69 at 339-41.] Milroy proposed that the Quileute, Hoh, and Queets, together with other Indians could be collected on the enlarged reservation. [Ex. QN-M-69 at 341.] The Quinault Reservation was enlarged in accordance with Milroy’s recommendation by Executive Order of November 4, 1873. [Ex. SH/CHM-401; QN-M-183.]
52. In the same 1872 annual report proposing enlargement of the Quinault Reservation, Superintendent Milroy also proposed a program for the improvement of the Chehalis Reservation. [Ex. QN-M-69 at 334-35.] It does not appear that the United States intended to relocate people already located on the Chehalis and Shoal-water Bay Reservations to the Quinault Reservation in connection with the 1873 Executive Order. [R. 632-33.]
53. No evidence was presented that the 1873 Executive Order enlarging the Qui-nault Indian Reservation was intended to grant treaty rights to the Chehalis, Chi-nook, or Cowlitz. The evidence presented is to the contrary. The Chehalis, Chinook, and Cowlitz received no treaty annuities. [R. 634.] Moreover, because the Chehalis were not party to a treaty providing for allotment of land to individuals, allotment of the Chehalis Reservation was accomplished through an 1886 Executive Order restoring much of it to the public domain so that patents could be issued under the Indian Homestead Acts. [Ex. USA-M-42 at 42-44.]
54. Census data collected in 1878 show 103 Indians belonging to the Shoalwater Bay Reservation, [Ex. USA-M-87], 205 Indians belonging to the Chehalis Indian Reservation, [Ex. USA-M-89], and 164 Indians belonging to Lower Chehalis and Grays Harbor Indians, [Ex. USA-M-88.] The latter people remained living around Grays Harbor and the lower waters of the streams draining into it and refused to move to a reservation. [Ex. QN-M-74 at 141.] Over time many of the Grays Harbor and Lower Chehalis moved to the Quinault Reservation and assimilated into the Quinault Nation. [Ex. SH/CH-M-316 at 20-21.] Some moved to the Chehalis Reservation, some to the Shoalwater Reservation, and an indefinite number remained scattered around the Harbor. [Id.; R. 161-64.]
55. In 1905, allotment of the Quinault Reservation commenced. [Ex. USA-M-42 at 30.] In June of that year the allotting agent was instructed to take applications for allotment from Quinaults, Quileutes, Queets, Hohs, and members of those tribes which the Central Office had been advised were occupying the Reservation. [Id.; Ex. SH/CH-M-171; R. 637.] In October, the allotment instructions were amended and clarified to restrict allotment at Qui-nault to Indians having no rights in land on another reservation. [Ex. SH/CH-M-263; USA-M-42 at 31.] Later instructions in 1906 specifically provide that Qui-leute and Hoh Indians located on the Qui-leute and Hoh Reservation are not entitled to an allotment at Quinault. [Ex. SH7CH-M-263.]
56. Shoalwater Bay Indians were allotted at Quinault based on the erroneous impression that they were resident on the Quinault Reservation. [R. 639-41.] Indians of the Chehalis, Hoh, and Quileute Reservations, however, were not allotted. [R. 641; Ex. SH/CH-M-263.]
57. Legislation was introduced in 1910, (SB 5269), to authorize allotment of surplus land of the Quinault Reservation remaining after allotment of the Indian residents to Quileute, Hoh, and Ozette Indians desiring allotments at Quinault, rather than at the Reservations set aside for their *1191own tribes. [Ex. USA-M-42 at 31; QNM-229.]
58. Subsequently, the Secretary of the Interior proposed an amendment to this legislation to also authorize allotments of surplus Quinault Reservation land to members of “other tribes of Indians in Washington, who are affiliated with the Qui-naielt and Quileute Tribes in the treaty of July first, eighteen hundred and fifty-five, and January twenty-third, eighteen hundred and fifty-six_” [Ex. QN-M-252.] The Secretary of the Interior advised the Chairman of the House Committee on Indian Affairs that the amendment was designed principally to provide for allotment of certain unallotted Clallam and Squaxin Island Indians who the Secretary stated “were at one time affiliated with the Indians on the Quinault Reservation.” [Ex. SH7CH-M-259.9; QN-M-260.]
59. At the time, both the Squaxin and Clallam had been lobbying for land. [R. 643-45.] The Squaxin and Clallam Tribes are respectively parties to the Treaties of Medicine Creek and Point No Point and each reserved its own right to fish at Squaxin and Clallam usual and accustomed fishing places under those treaties. [R. 646.] See United States v. Washington, 384 F.Supp. at 348-49, 377-78, 459 F.Supp. at 1039-41. The Secretary’s description of the Squaxin and Clallam as “affiliated” with the Indians of the Quinault Reservation and his use of the term in the proposed amendment to the allotment bill is not readily explained. [R. 646.]
60. SB 5269 was enacted with the amendment proposed by the Secretary of the Interior added in the House. [Ex. QN-M-333 at 3937; R. 646; SH/CH-M-46, Act of March 4, 1911, 36 Stat. 1345.] The Act provides in its entirety:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That the Secretary of the Interior be, and he is hereby, authorized and directed to make allotments on the Qui-naielt Reservation, Washington, under the provisions of the allotment laws of the United States, to all members of the Hoh, Quileute, Ozette or other tribes of Indians in Washington, who are affiliated with the Quinaielt and Quileute tribes in the treaty of July first, eighteen hundred and fifty-five, and January twenty-third, eighteen hundred and fifty-six, and who may elect to take allotments on the Quinaielt Reservation rather than on the reservations set aside for these tribes, Provided. That the allotments authorized herein shall be made from the surplus lands on the Quinaielt Reservation after the allotments to the Indians thereon have been completed.
[Ex. SH/CH-M-46, Act of March 4, 1911, 36 Stat. 1345.]
61. The intent of the Act was to authorize Indians whose reservation contained insufficient land for allotment to take allotments from the “surplus land” at Quinault that remained after the allotment of Reservation residents. [Id.; Ex. QNM-235; QN-M-258; QN-M-252; SH/CHM-259.9; QN-M-333; R. 684-85.] The legislative history and correspondence relating to the Act of March 4, 1911, do not discuss the Shoalwater Bay or Chehalis Tribes, nor do they discuss the transfer or sharing of treaty fishing rights. [R. 646-47, 684-85.]
62. In 1931, the Supreme Court construed the Act of March 4, 1911, to permit the allotment of Chehalis, Chinook, and Cowlitz Indians from the surplus lands of the Quinault Reservation, if they were without allotment elsewhere. Halbert v. United States, 283 U.S. 753, 760, 51 S.Ct. 615, 75 L.Ed. 1389 (1931). However, only Chehalis who did not have land at the *1192Chehalis Reservation received allotments at Quinault. [R. 647.]
63. No band or group of Quinault, Qui-leute, Hoh, or Queets parties to the Treaty with the Quinault merged into or consolidated with the Confederated Tribes of the Chehalis Indian Reservation or the Shoal-water Bay Indian Tribe. [R. 647-48.]
64. The Quinault Indian Nation, Hoh Indian Tribe, and Quileute Indian Tribe are the only Indian tribes recognized by the United States as possessing off-reservation fishing rights reserved pursuant to Article 8 of the Treaty with the Quinault, 12 Stat. 971. [Ex. QN-M-329 at 12.] Both the United States and Quinault Nation take the position that the plaintiff tribes do not possess any fishing rights pursuant to that treaty. [Id.]
Claims Based on Executive Orders
65. During the Indian Wars of 1856, a subagent, Sidney Ford, wrote Governor Stevens a letter describing his efforts to keep the Chehalis peaceful and located around Ford’s Prairie. [Tr. 850-51; WM-40 (10/10/1856 Letter Ford to Stevens, p. 13).] Ford recommended a reservation at that location. On November 30, 1856, Ford wrote Stevens again urging a reservation at the Chehalis River for the Upper Chehalis Indians. Ford recommended a separate reservation for Lower Chehalis Indians and Indians on Shoalwater Bay. [Tr. 851-52; W-M-42.] Both letters demonstrate the Indian agent’s concern with whiskey traffic and promoting farming amongst Indians. Sidney Ford renewed these recommendations in 1857. [Ex. QNM-53 (Report of Sidney Ford 6/30/1857); Tr. 853-54.] By 1857, however, Stevens indicated that he had no instructions to make any treaties with the Cowlitz and Chehalis Indians. [W-M-45 (Stevens to Pomroy 1/31/1857).]
66. After Stevens left Washington Territory in 1857, the Indians remained in the area of the Chehalis River. In 1859, Michael Simmons published a notice in the newspaper advising the public that the government would reserve lands on the Chehalis River for an Indian reservation. [Lane Written Direct, p. 36.] The large reservation described in 1859 was not made. While proposing a reservation at Chehalis River, Simmons made it clear that the reservation would not be suited for Chinook and Lower Chehalis Indians who had previously lived near the seashore. [Ex. SH/CH-M-257 (Letter Simmons to Geary 7/1/1860).] No lands were reserved in 1860.
67. In June 1862, the new Superintendent of Indian Affairs for Washington Territory, Hale, began an effort to deal with the non-treaty Upper Chehalis Indians. On July 3, 1862, Hale wrote to Commissioner of Indian Affairs Dole and reported that the Chehalis would not consolidate with the Nisquallys. He did report that they would enter into a treaty and take a reservation of about four sections of land at the confluence of the Black and Chehal-is Rivers. Hale urged the Commissioner of Indian Affairs to authorize a treaty with those Indians. [Tr. 857-58; W-M-59 (6/3/1862, Letter Hale to Dole); SH/CHM-264.5 (7/3/1862 Letter Hale to Dole).]
68. Hale did not get an immediate response from Commissioner of Indian Affairs Dole and in March of 1863, he reported that he was locating Upper Chehalis Indians at the confluence of the Black and Chehalis Rivers. [Tr. 860-61; W-M-63 (3/30/1863 Letter Hale to Dole).] In 1863, however, Hale substantially changed the nature of his recommendation and recommended no treaty or treaty promises. He wrote:
For the lands necessarily taken from them the government should evince its magnanimity in making ample provision *1193for their protection and welfare. I do not, therefore, propose to have any treaty made either with the Chehalis or Colville or any other Indians within the bounds of this superintendency who have yet been made parties to any treaty. What may be done for these Indians in the way of providing an agent to take care of and employees to instruct them ... will be more kindly received by them, and considered as presents and favors, to be given or withheld at pleasure, instead of a consideration which they have the right to expect and demand. In this way, too, we shall avoid the violation of treaty stipulations. Some such courses I have thus indicated will, I believe, be more satisfactory to the Indians themselves, and will in the end be more safe and economical to the department.
[Ex. QN-M-59, p. 442 (9/1/1863 Report Hale to Dole).]
69. Hale arranged for a survey and description of his proposed Chehalis Indian Reservation. [Ex. QN-M-59, p. 443.] The description was forwarded to Commissioner of Indian Affairs Dole. On May 17, 1864, Commissioner Dole recommended to the Secretary of Interior that he reserve lands recommended by Superintendent Hale. [Ex. SH/CH-M-335 (5/17/1864 Letter Dole to Secretary of Interior).] The recommendation of Commissioner of Indian Affairs Dole clearly referred to the recommendations and proposals that had been approved by Superintendent Hale.
70. In reserving lands for the Chehalis Indian Reservation, the Secretary of Interior had no intention to impliedly create a treaty right.
71. In reserving lands for the Chehalis Indian Reservation, the overwhelming motivation was to secure lands for the Indians before the lands were settled by non-Indians. That the United States recognized the validity of non-Indian settlements is demonstrated by the fact that the United States paid for the private land claim of D. Mounts, which was within the six sections of land reserved for the Chehalis Indian Reservation. [1 Kapler 903 (7/8/1864 Secretarial Order).] The year before the order reserving lands for the Chehalis Reservation, Superintendent Hale reported that he had surveyed boundaries for a reservation.
But the most serious defect of all is, that no official information of the recognition and approval of any of the Indian reservations by the President or the Department [of Interior] has been given to the Commissioner of the General Land Office, so as to enable him to instruct the proper officers here to reserve the same from entry [by non-Indians], The difficulty became very manifest when the lands were offered for public sale. ... Unless different instructions on this point are given by the Commissioner, the difficulty may be very soon revived, as parties are not infrequently applying to enter lands which are included within the bounds of our Indian reservation.
[Ex. QN-M-59 (9/1/1863 Report Superintendent Hale to Commissioner Dole).] The express motivation for the July 8, 1864 Secretarial Order reserving lands for the Chehalis Indians was to reserve the lands from entry by non-Indians. The order addressed the problem of landless Indians and showed no intention to deal with tribal off-reservation rights.
72.In recommending the Chehalis Indian Reservation to the Secretary of Interior, Commissioner Dole expressly stated that “it will also be necessary, doubtless, to make some provision for them after they shall have been assured of the quiet and permanent possession of the proposed reservation for a future home. But this may subsequently receive the attention of the *1194Department. These Indians are represented to be a very hopeful condition. They wish to abandon a roving life; to establish themselves in houses and cultivate their lands; to educate their children, and live peaceably with all.” [1 Kapler 902; SH/CHHM-315 (5/17/1863 Letter Commissioner Dole to Secretary of Interi- or).] That the lands would be cleared and farmed and that the United States had not made all provisions demonstrates that there was no United States intent to create or reserve any off-reservation fishing right by implication.
73. Indians of Southwest Washington had relied upon fish long before the arrival of non-Indians. The location for the Che-halis Indian Reservation had referred to the proximity of fish in the Chehalis River. The fact that the United States considered the proximity of fisheries does not demonstrate the United States’ intent to create an off-reservation fishing right for the eventual occupants of the Chehalis Indian Reservation.
74. The Executive Order creating the Chehalis Reservation must also be viewed in the context of the acculturation policy that pervaded United States Indian Policy at the time. The United States intended to “civilize” Indians by teaching them cultivation and ways of non-Indian society. Although fishing is not inconsistent with farming or joining non-Indian society, the creation of a tribal off-reservation fishing right is inconsistent with the intention of making a reservation for farming and eventual allotment to individual Indians. [Tr. 864-65; Ex. QN-M-60 (Annual Report including Letter of Superintendent Hale 8/8/1864, p. 58, and Letter of Dole to Secretary of Interior 5/17/1864, p. 77-78).]
75. The Executive Order reserving lands for the Chehalis Indians was not conditional or based upon agreement with the Indians. The Upper Chehalis Indians at that location did not believe or understand that they were obtaining a treaty or treaty rights, nor did they believe they were obtaining any off-reservation fishing right from the United States.
76. There is less written record concerning the reservation of lands for the Shoalwater Bay Indian Reservation. A May 2, 1866, letter from Giles Ford to the new Superintendent of Indian Affairs, Waterman, reports that he had visited Shoalwater Bay and examined a spot that the Indians wanted reserved. He reported that it would be a good home for them being situated in close proximity to good fishing, hunting, and grazing grounds. He recommended that it be immediately reserved from sale. [Ex. SH/CH-M-34; Tr. 870.] Superintendent Waterman enclosed Giles Ford’s letter and supported his recommendation in a June 1, 1866, letter to the Secretary of the Interior. [Ex. SH/ CH-M-35.] Waterman submitted a map of the proposed reservation.
77. The primary purpose of the Shoal-water Bay Reservation was to reserve lands for Indians and prevent the lands from being taken by non-Indians. Superintendent Waterman’s letter stated “they desire a place upon a shore where they can fix their homes, without being exposed to being supplanted and driven off by White men.” [Ex. SH/CH-M-35.] The Executive order reserving lands was executed September 22, 1866, by President Andrew Johnson. The order is handwritten on a map of the reservation. The language of the Executive Order expressly refers to the need to reserve the land from sale:
Let the tract of land as indicated on the within diagram be reserved from sale and set apart for Indian purposes...
[Ex. SH/CH-M-37.]
78. There is no express intent by the Executive to create or reserve any off-*1195reservation fishing right for Indians who might occupy the Shoalwater Bay Reservation. There is no express or implied intent that a treaty right was being reserved or created for Indians who might later occupy the reservation.
79. Superintendent Waterman referred to 30 or 40 families who had lived upon the beach. Those Indians did not understand that they were entering a treaty or obtaining any off-reservation fishing rights. There is no indication that the United States thought it was dealing with a tribe or a group with tribal rights in 1866.
80. There was no executive intent or United States intent to create or reserve off-reservation fishing rights for any group of Indians or for the eventual occupants of the lands reserved on Shoalwater Bay. That the lands were proximate to fishing and other resources was a factor in selecting the location, but this does not amount to the creation of a special off-reservation fishing right.
81. The Shoalwater Bay Indian Reservation appears to have been overlooked by the local superintendent. The reservation is not mentioned in the annual reports. [Ex. QN-M-69 (1872 Report).] The 1872 Annual Report recognizes a Chehalis Indian Reservation and indicates that Indians of the Cowlitz, Chinook, Shoalwater Bay, and Humbolt Tribes did not occupy the Chehalis Reservation. In a letter dated September 2, 1876, Superintendent Milroy wrote to Commissioner of Indian Affairs Smith and stated:
I have during the past month visited the reservations under may [sic] charge, including the Shoalwater Bay Reservation. It was set apart as an Indian reservation by Executive Order of September 22, 1866 — near ten years ago. But its existence as an Indian reservation was unknown to any officer of the Indian Bureau in this Territory until I accidentally discovered it a short time before the abolishing of my office as Superintendent of Indian Affairs of this Territory; and my visit during August this past past [sic] was the first visit ever made to it by any officer of the Indian Bureau. It consist [sic] of about 340 acres; about one third of which is good agricultural land; but it is heavily timbered. I found but two families residing on the reservation. I sent word in advance for all the Indians instructed on that reservation to meet with them on the 19th and about 50 men, women and children met me there at that time and I had a long conference with them. Their reasons for not coming onto the reservation heretofore was that they were uncertain about their title to it, but did not have a chief in whom they had confidence.
[Ex. W-M-90 (Letter, Milroy to Commissioner of Indian Affairs 9/2/1876).]
82. There is no evidence or indication that any Indians understood the 1866 Executive Order to be creating or reserving off-reservation rights associated with the Shoalwater Bay Reservation.
83. In the annual reports following 1864 and 1866, the United States never took the position that Indians of the Che-halis or shoalwater Bay Indian Reservations had off-reservation fishing rights. The United States consistently took the position that they were non-treaty Indians and did not have treaty rights. In particular, the Solicitor’s office in 1942 took the position that Chehalis Indians had no special off-reservation rights. [Ex. SH/CHM-116 (Swindell Report).] In 1952, the Solicitor’s Office took the position that members of the Chehalis Tribe must comply with state laws and regulations outside the boundaries of their reservation. [Ex. W-M-124, p. 3.] In 1975, the Regional Solicitor took the position that the Chehal-*1196is Tribe had no off-reservation fishing rights. [Ex. W-M-142.]
84. The subsequent interpretation of the United States confirms that there was not United States intent to create or reserve any off-reservation fishing rights with the Executive Orders reserving lands for the Chehalis and Shoalwater Bay Indian Reservations.
85. Although the Annual Reports of the Commissioner of Indian Affairs referenced treaty fishing rights, those reports distinguish Chehalis and Shoalwater Bay Indians as non-treaty, and never indicate or imply that Chehalis or Shoalwater Bay Indians possess some other type of fishing right. [E.g., Ex. QN-M-89, p. 462 (discussing treaty fishing).]
CONCLUSIONS OF LAW
On-Reservation Fishing Rights
1. The Chehalis and Shoalwater Bay Tribes are entitled to fish within their respective reservations. Issues as to the boundaries of those reservations, and as to authority to manage that fishing, have been deferred until the next stage of this litigation. The balance of these Conclusions of Law address the rights of these tribes to fish off their respective reservations.
Claims to Rights Under Treaty with Quinaults
2. The Chehalis and Shoalwater Bay Tribes who claim that they have acquired a share of Quinault treaty rights bear the burden of proof with respect to their claims. They have “the burden of proving that they are entitled to exercise tribal treaty rights.” See United States v. Washington, 641 F.2d 1368, 1374 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982); see also United States v. Suquamish Indian Tribe, 901 F.2d 772, 775 (9th Cir.1990); United States v. Lummi Indian Tribe, 841 F.2d 317, 318 (9th Cir.1988).
3. “A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations.... Accordingly, it is the intentions of the parties ... that must control any attempt to interpret the treaties.” Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675-76, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Swim v. Bergland, 696 F.2d 712, 716 (9th Cir.1983). Where as in this case the parties to the treaty agree on the meaning of the treaty, the Courts must generally defer to their interpretation. Sumitomo Shoji, America, Inc. v. Avagliano, 457 U.S. 176, 184, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982).
4. The refusal of the Chehalis, Chi-nook, and Cowlitz to sign the treaty offered at the Chehalis River Council; Governor Stevens’ subsequent removal of the Chehalis, Chinook, and Cowlitz from the Treaty negotiated with the Quinault and Quileute at the Quinault River in July 1855; and, his instructions to Michael Simmons that the other tribes who had been at the Chehalis River Council would be the subject of later, separate treaty negotiations confirm that the Treaty with the Quinault itself was not intended to, and did not, deal with the Chehalis, Chinook, and Cowlitz or grant them a share of the fishing rights reserved by the Quinault.
5. Both this Court and the Court of Appeals have held that a consolidation or merger of tribal groups is required for one tribe to obtain the treaty fishing rights of another tribe under the Stevens’ treaties. See United States v. Washington, No. 9213 Sub No. 85-1, Order Adopting the Special Master’s Report and Recommendation, entered February 27, 1989 (Docket No. 11202), aff'd sub nom. United States v. *1197Suquamish Indian Tribe, 901 F.2d 772 (9th Cir.1990). The Court of Appeals af-firmance states that for one tribe to acquire the treaty fishing rights of another tribe,
it must first show that the two tribes or cohesive bands thereof consolidated or merged and demonstrate also that together they maintain an organized tribal structure.11
United States v. Suquamish Indian Tribe, 901 F.2d 772, 776 (9th Cir.1990). (Footnote in original.)
6. The Chehalis and Shoalwater Tribes have not made the required showing. The Confederated Tribes of the Chehalis Indian Reservation and the Shoalwater Bay Indian Tribe are neither “descended from a treaty signatory,” nor tribal entities formed by the consolidation or merger of non-treaty groups with any band of Quinault, Queets, Hoh or Qui-leute. They therefore do not possess rights under the Treaty with the Quinault unless the United States, through some post-treaty action, appropriated those rights for the benefit of the two tribes.
7. In assessing post-treaty actions, the Court notes that the appropriation of the property of a tribe by the United States for the use of another tribe is a taking. Shoshone Tribe v. United States, 299 U.S. 476, 497, 57 S.Ct. 244, 81 L.Ed. 360 (1937); United States v. Creek Nation, 295 U.S. 103, 109-111, 55 S.Ct. 681, 79 L.Ed. 1331 (1935). The Supreme Court has cautioned that acts of Congress are not to be construed to transfer property rights of one tribe to another where an alternate construction is available. Chippewa Indians v. United States, 301 U.S. 358, 375-76, 57 S.Ct. 826, 81 L.Ed. 1156 (1937). To conclude that the United States took Quinault rights and thereby diminished Quinault rights for the benefit of other tribes, the Court must find that Congress acted expressly, see, Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), or at a minimum that Congress clearly considered the matter and chose to diminish or modify Quinault treaty rights. United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 2220, 90 L.Ed.2d 767 (1986).
8. Neither the Executive Order of November 4, 1873 enlarging the Quinault Indian Reservation, nor the Act of March 4, 1911 providing for the allotment of the Quinault Reservation, constitutes Congressional action of the kind necessary to transfer Quinault off-reservation treaty fishing rights from the Quinault to the Chehalis and Shoalwater Tribes.
9. This Court has previously held joint occupancy of a reservation is not sufficient to demonstrate the tribal consolidation and unification necessary for a transfer of treaty fishing rights among tribes. See, United States v. Washington, Sub. No. 85-1, Order Adopting Special Master’s Report and Recommendation, entered Feb. 27, 1989, n. 4 at 19 (Docket No. 11202), aff'd, sub nom. United States v. Suquamish Indian Tribe, 901 F.2d 772 (1990). Thus, even if the 1873 Quinault Executive Order had been intended to effect the relocation of the Chehalis and Shoalwater Tribes from the Chehalis and Shoalwater Reservations to the Quinault Reservation, that would not support a conclusion that the two tribes had acquired Quinault off-reservation treaty fishing rights. Moreover, there is no mention of off-reservation treaty fishing rights in the Executive Order *1198which would support a conclusion that the Order effected a transfer of treaty fishing rights.
10. The Act of March 4, 1911, and its legislative history do not reflect any Congressional intent to appropriate Quinault off-reservation treaty fishing rights and transfer a share of those rights to the Chehalis and Shoalwater Bay Tribes. In the absence of a clear and unequivocal expression of such intent, allotment of Quinault Reservation land to individual Chehalis and Shoalwater Indians does not support the conclusion that Quinault off-reservation treaty rights were transferred to the Chehalis and Shoalwater Bay Tribes. See United States v. Washington, Sub. No. 85-1, Order Adopting Special Master’s Report and Recommendation, entered Feb. 27, 1989, FF. 396 at 11-12 (Docket No. 11202), aff'd, sub nom. United States v. Suquamish Indian Tribe, 901 F.2d at 777 (9th Cir.1990).
11. The Chehalis and Shoalwater Tribes claim that prior case law has conclusively determined that the Executive Order of 1873 enlarging the Quinault Indian Reservation and the Quinault Allotment Act of March 4, 1911, transferred Quinault treaty fishing rights to the plaintiff tribes through a process of “post treaty affiliation.” For the reasons that follow, the Court disagrees.
12. The cases upon which the Chehalis and Shoalwater rely include: Halbert v. United States, 283 U.S. 753, 51 S.Ct. 615, 75 L.Ed. 1389 (1931); Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176 (9th Cir.1981); Williams v. Clark, 742 F.2d 549 (9th Cir.1984); Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 129 F.R.D. 171 (W.D.Wash.1990), affirmed, 928 F.2d 1496 (9th Cir.1991); Quinaielt Tribe of Indians v. United States, 102 Ct.Cl. 822 (1945).
13. The prior decisions cited by the Chehalis and Shoalwater Bay Tribes cannot be accorded a preclusive effect in this matter because the issues decided in the prior cases differ from the issue presented here.
14. The issues in Halbert as framed by the Supreme Court were:
The plaintiffs are all of Indian blood and descent, but none is a full-blood Indian. Some are members of the Che-halis, Chinook, and Cowlitz tribes, and the question is presented whether these tribes are among those whose members are entitled to allotments from lands within the Quinaielt Reservation. Many do not personally reside on the reservation, and we are asked to decide whether this defeats their claim. Some are the issue, either children or grandchildren, of a marriage between an Indian woman and a white man, and whether this is an obstacle to allowing their claims is a further question.
Halbert v. United States, 283 U.S. 753, 755-56, 51 S.Ct. 615, 75 L.Ed. 1389 (1931). The decision holds that individual Chehal-is, Chinook, and Cowlitz are entitled to allotments of land on the Quinault Reservation if without allotments elsewhere, that reservation residence is not a precondition for allotment, and that the issue of marriages of Indian women and white men are not necessarily barred from taking an allotment.
15. The Court’s determination that individual Chehalis, Chinook, and Cowlitz are entitled to allotments turns on its construction of language in the Quinault Allotment Act of March 4,1911, authorizing the issuance of allotments,
“to all members of ... tribes of Indians in Washington who are affiliated with the Quinaielt and Quileute tribes in the treaty [with the Quinault, 12 Stat. 971], and who may elect to take allotments on *1199the Quinaielt Reservation rather than on the reservations set aside for these tribes, Provided, That the allotments authorized herein shall be made from the surplus lands on the Quinaielt Reservation after the allotments to the Indians thereon have been completed.”
Act of March 4, 1911, 36 Stat. 1345. Halbert, 283 U.S at 758-59, 51 S.Ct. 615. The Court held it was appropriate to speak of the Chehalis, Chinook, and Cowlitz, as “affiliated under the treaty” for the purpose of determining the eligibility of individuals for allotment of land under the Act. The Court was not presented with, nor did it address, the claim made here by the Che-halis and Shoalwater Bay Tribes that they share and may independently exercise the tribal off-reservation fishing rights reserved by the tribes party to the treaty.
16.The conclusion that Halbert did not involve an issue of tribal fishing rights is strengthened by several factors. The unpublished district court decision in Halbert makes it clear that the case involves only individual claims to allotment and does not implicate a claim by a tribe to tribal rights. Indeed, the district court’s decision concludes that the Chehalis and Chinook at Oakville and Shoalwater, the locations of the Chehalis and Shoalwater Reservations, were not tribes. [Ex. QN-M-99 at 25-26.] This conclusion contradicts the suggestion of the Chehalis and Shoalwater Tribes that Halbert involved an issue of tribal property rights. Moreover, Judge Cushman, the district judge who heard Halbert, subsequently had occasion to address the question of Chinook tribal fishing rights and concluded that the Chinook “have no such rights” under the treaty. United States v. McGowan, 2 F.Supp. 426, 438-39 (W.D.Wash.1931), aff'd, 62 F.2d 955 (9th Cir.1933), aff'd per curiam, 290 U.S. 592, 54 S.Ct. 95, 78 L.Ed. 522 (1933). (Emphasis added.) The McGowan decision indicates that this Court did not view Halbert as holding that so-called “affiliated tribes” possess Quinault treaty fishing rights, as a consequence of that characterization.
17. In Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176 (9th Cir.1981), a group claiming to be a successor to the aboriginal Wahkiakum Band of Chinook claimed rights to fish at Chinook usual and accustomed fishing places on the Columbia River under the Treaty with the Quinault. The court rejected the claim, holding that the Treaty with the Quinault only protected and reserved the right to take fish at the fishing grounds of the tribal parties, the Quinault and Quileute, and that the Wahkiakum do not possess standing as a treaty signatory. Id. at 179.
18. The Wahkiakum court did not have before it the question of Chinook claims to a right to fish at Quinault fishing places. Nevertheless, in dictum, the court stated:
As members of a tribe subsequently affiliated with the Quinault under the treaty, they are, however, entitled to share such rights as are granted to the original signatories by the treaty. The members of the Wahkiakum, a tribe of fish-eating Indians of the locality, have the opportunity to take an allotment on the Quinault Reservation and to exercise the fishing rights which accompany that allotment. Those fishing rights are secured by Article III which protects the rights of the Quinault and any affiliated tribe to fish at all usual and accustomed Quinault fishing grounds. (Footnote omitted.)
655 F.2d at 179-80.
The Court thus suggests that only individual members who take an allotment on the Quinault Reservation are entitled to exercise Quinault treaty fishing rights. This would not support the far broader claim by the Chehalis and Shoalwater Bay Tribes that all of their members share
*1200those Quinault fishing rights. In any event, the above statement by the Wahkia-kum court was dictum. “It is hornbook law that both [collateral estoppel and stare decisis] principles give effect only to matters that have formed an essential basis for the earlier decision.” Matter of Ellis, 674 F.2d 1288, 1250 (9th Cir.1982); United States v. Crawley, 837 F.2d 291, 292 (7th Cir.1988). The dictum comments of the Court of Appeals are consistent with a requirement that individual Chehalis and Shoalwater enroll in the Quinault Indian Nation if they desire to exercise Quinault treaty rights, an avenue which is available to any person who possesses at least 1/4 Chehalis, Chinook, or Cowlitz ancestry.
19. The other cases upon which plaintiff tribes rely are also distinguishable. Williams v. Clark, 742 F.2d 549 (9th Cir.1984), cited by the Chehalis and Shoalwa-ter Bay Tribes, involves a claim with respect to a Quileute’s rights to inherit from a Quileute decedent an interest in land located on the Quinault Reservation. The Quileute Tribe, unlike the plaintiff tribes, is a party to the Treaty with the Quinault.
Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 129 F.R.D. 171 (W.D.Wash.1990), affirmed, 928 F.2d 1496 (9th Cir.1991), involves claims by the plaintiff Chehalis and Shoalwater Tribes with respect to the government of the Quinault Reservation. This Court dismissed that case based on the inability of the plaintiffs to join an indispensable party, the Quinault Indian Nation. It therefore expressly declined to address the merits.
Finally, Quinaielt Tribe of Indians v. United States, 102 Ct.Cl. 822 (1945), involved a claim by the Quinault Nation against the United States for money damages as the result of the wrongful exclusion of certain lands from the Quinault Reservation. The Claims Court in an interlocutory decision relying on Halbert, held that others shared in the right to recover for the wrongfully omitted reservation lands. The decision does not address the issue of off-reservation fishing rights presented in this case and is readily explained on the basis that had the excluded lands been properly included in the Quinault Reservation they would have been available for allotment to individual Chehalis, Chinook, and Cowlitz allottees under Halbert.
20. Based on the foregoing, the Court concludes that the Confederated Tribes of the Chehalis Indian Reservation and the Shoalwater Bay Indian Tribe do not share the right reserved by the Quinault in the Treaty with the Quinault to take fish at Quinault usual and accustomed fishing places.
Claims Based on Executive Orders
21. Off-reservation hunting and fishing rights must be expressly reserved. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); Organized Village of Kake v. Egan, 369 U.S. 60, 75-76, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962). Absent an express reservation of off-reservation rights, Indians engaging in activities beyond reservation boundaries are generally subject to regulation under non-discriminatory state law applicable to all citizens. Mescalero Apache Tribe v. Jones, 411 U.S. at 148-49, 93 S.Ct. 1267. The Executive Orders establishing the Chehalis and Shoalwater Bay Reservations do not contain the express reservation of off-reservation fishing rights necessary to preserve such rights.
Claims to Aboriginal Fishing Rights
22. Aboriginal title is the right of aboriginal Indian tribes to use and occupy lands which they have continuously and exclusively used and occupied.
*120123. The right of use and occupancy under aboriginal title included the right to use aboriginal lands for fishing. The right to fish is an incident of aboriginal title.
24. The extinguishment of aboriginal title extinguishes all incidents of aboriginal title and any use rights such as fishing in the aboriginal lands, unless expressly reserved by treaty or federal law.
25. When Congress appropriated money to pay an award of the Indian Claims Commission for the past extin-guishment of aboriginal title, Congress confirmed that the aboriginal title of the group to whom the award was made was in fact extinguished.
26. By appropriating money to pay the I.C.C. award for the extinguishment of aboriginal title of the Upper Chehalis, Lower Chehalis, Satsop, Humptulips, and other Indians who made the claim in Upper Chehalis Tribe, et al. v. United States, I.C.C. docket No. 237, Congress confirmed that the aboriginal title of those aboriginal Indians had been extinguished.
27. By appropriating money to pay the I.C.C. award for the extinguishment of aboriginal title of the Cowlitz Indians who made the claim in Plamondon ex. rel. Cowlitz Tribe v. United States, I.C.C. docket No. 218, Congress confirmed that the aboriginal title of those aboriginal Indians had been extinguished.
28. By appropriating money to pay the I.C.C. award for the extinguishment of aboriginal title of the Chinook Indians who made the claim in Chinook Tribe and Band v. United States, I.C.C. docket No. 234, Congress confirmed that the aboriginal title of those aboriginal Indians had been extinguished.
29. By appropriating money to pay the award of the I.C.C, Congress' confirmed that the United States had extinguished aboriginal title, including any aboriginal fishing rights, of the aboriginal tribes whose aboriginal title was found to have been taken in an I.C.C. award.
30. Plaintiff tribes did not show that any incident of aboriginal title or fishing right was expressly or otherwise exempted from the extinguishment of the aboriginal title of the Upper Chehalis, Lower Chehal-is, Satsop, Humptulips, Cowlitz, Chinook, or any other aboriginal Indian tribe where the extinguishment has been confirmed by the payment of an award of the I.C.C. Plaintiff tribes do not possess any unextin-guished aboriginal fishing rights of those aboriginal tribes.
31. The Act of August 24, 1912, paid compensation to the descendants of the signatories of the unratified 1851 treaties with the Wahkiakum Band of Chinook, the Wheelapa Band of Chinook, and the Lower Band of Chinook. By the Act of August 24, 1912, Congress confirmed that it had previously extinguished all aboriginal title, including fishing rights, of the Wahkiakum Band of Chinook, Wheelapa Band of Chi-nook, the Kwalioqua, and the Lower Band of Chinook. Plaintiff tribes do not possess any unextinguished aboriginal fishing rights of these aboriginal tribes.
32. The Act of August 24, 1912, paid compensation to the descendants of the signatories of the unratified 1851 treaties with the Wahkiakum Band of Chinook, the Wheelapa Band of Chinook, and the Lower Band of Chinook. By the Act of August 24, 1912, Congress confirmed that it had extinguished all aboriginal title, including fishing rights, in the lands that would have been ceded or reserved under those treaties, including Shoalwater (or Willapa) Bay and its environs, for a distance of 60 miles up the Columbia River. Plaintiff tribes do not possess aboriginal title and fishing rights to the lands that would have been *1202ceded or reserved under those treaties, including Shoalwater (or Willapa) Bay and its environs, for a distance of 60 miles up the Columbia River.
33. The opening of lands for sale to non-Indians and to possession by non-Indians was inconsistent with continued exclusive use and occupancy by the aboriginal tribes and, to the extent that aboriginal title was not extinguished previously, the presidential proclamation of 1863 extinguished all remaining aboriginal title in southwest Washington including any aboriginal fishing rights that may have existed. Plaintiff tribes do not possess any unextinguished aboriginal fishing rights in southwest Washington.
34. Plaintiff tribes did not prove that they possess any unextinguished aboriginal fishing rights and the court hereby declares that they do not have a right to take fish free of state regulation off their respective reservations in the Chehalis River and Gray’s Harbor systems, nor in Willapa Bay, nor the rivers and streams draining into that bay, nor the waters adjacent to that bay.
35. Because the Court concludes that the Chehalis, Chinook, and Cowlitz retained no aboriginal rights to fish outside of the Chehalis or Shoalwater Reservations, it is unnecessary for the Court to determine the usual and accustomed fishing places of those groups, or to which, if any, of those groups the Chehalis and Shoalwater plaintiffs are successors in interest.
Summary
36. The rights of the Chehalis Tribe and the Shoalwater Bay Tribe to fish off their respective reservations are the same as the rights of every other citizen. They enjoy no additional rights by virtue of the Executive Orders establishing their reservations, or the aboriginal rights of any tribe, or any relationship with the Quinault Indian Nation.
ORDER RE REPORT AND RECOMMENDATION FILED ON OCTOBER 3, 1991
Subproceeding No. 83-3 and No. 83-117T(C)
(May 18, 1992)
ROBERT E. COYLE, District Judge.
On October 3, 1991, United States Magistrate John Weinberg filed his Report and Recommendation and accompanying Proposed Findings of Fact and Conclusions of Law.
Timely objections and memoranda have been filed by the Shoalwater Bay and Che-halis Tribes. In addition, the Quinault Nation and the Tulalip Tribes of Washington each have timely filed limited objections and memoranda. The State of Washington and the United States also have filed pleadings responding to the arguments made by the respective tribes in their objections and/or memoranda.
The court has reviewed the pleadings, record, objections and memoranda in accordance with the governing standards of review. The court concludes that further oral argument in connection with these matters is not necessary.
Upon due consideration of the arguments of the parties and the record herein, the court vacates the proposed Findings of Fact Nos. 2, 19, 20 and 74 and substitutes therefore:
2. The Chehalis Indian Reservation is located near the confluence of the Black and Chehalis Rivers, near the town of Oakville, in Thurston and Grays Harbor Counties, Washington. Issues as to the boundary of the Chehalis Reservation are reserved for later determination.
*120319. By appropriating money in the Act of August 24, 1912, to pay the descendants of the Lower Chinook, Willapa, Kwalioqua and Wahkiakum, the Congress confirmed that it has extinguished all aboriginal land title of those Indians. The plaintiff tribes do not hold or possess aboriginal land title of the Lower Chinook, Wheelpa Chinook, Willapa (Kwaligua), Wahkiakum Chinook, because those rights were taken and the extinguishment was later confirmed by payment under the Act of August 24, 1912.
20. By appropriating payment in the Act of August 24, 1912 to pay to the descendents of the signers of the unrati-fied Dart treaties with the Lower Band of Chinook and the Wheelpa Band of Chinook, Congress confirmed that it had taken all lands that would have been ceded by the treaties and had extinguished all aboriginal title.
74. The Executive Order creating the Chehalis Reservation must also be viewed in the context of the acculturation policy that pervaded the United States Indian Policy at the time. The United States intended to “civilize” Indians by teaching them cultivation and ways of non-Indian society. Although fishing is not inconsistent with farming or joining non-Indian society, the establishment of a reservation for farming or eventual allotment to individual Indians does not create or reserve by implication off-reservation fishing rights.
In all other respects, the court concurs with the Report and Recommendation and the Proposed Findings of Fact and Conclusions of Law and adopts them as its own.
ACCORDINGLY, IT IS ORDERED that the court adopts the Report and Recommendation filed on October 3,1991.
IT IS FURTHER ORDERED that the Proposed Findings of Fact and Conclusions of Law lodged on October 3, 1991, as modified by this order, are to be filed by the Clerk of the Court as the court’s Findings of Fact and Conclusions of Law.
IT IS FURTHER ORDERED that this matter is remanded to Magistrate John Weinberg for further proceedings as set forth in the Report and Recommendation.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF MODERATE LIVING AND DENYING APPLICATION FOR PROTECTIVE ORDER
Subproceeding No. 89-3
(April 6, 1993)
EDWARD RAFEEDIE, District Judge.
TO ALL COUNSEL OF RECORD:
The Court has read and considered plaintiff Indian Tribes’ motion for partial summary judgment which seeks to dismiss the defendants’ affirmative defenses relating to moderate living. The Court has also considered the application for a protective order under Fed.R.Civ.P. 26(c) barring all discovery relating to that issue.
The Court concludes that the motion for partial summary judgment should be Denied for the following reasons:
1) The Court finds that the issue of moderate living is relevant and within the scope of this subproceeding, assuming that the treaties at issue provide for Tribal rights to harvest shellfish. The Court will promptly determine whether the treaties grant Tribal rights to harvest shellfish. In so concluding, the Court has considered the following:
The concept of a “moderate living” limitation on a Tribal treaty right to fish is derived from the Supreme Court’s decision in Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, *1204443 U.S. 658, 99 S.Ct. 3055, 3074-75, 61 L.Ed.2d 823 (1979), where the Court reviewed a determination of the existence and allocation of an Indian right to harvest anadromous fish in the state of Washington. In discussing moderate living, the Court stated:
“[T]he central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood — that is to say, a moderate living. Accordingly, while the maximum possible allocation to the Indians is fixed at 50%, the minimum is not; the latter will, upon proper submissions to the District Court, be modified in response to changing circumstances. If, for example, a tribe should dwindle to just a few members, or if it should find other sources of support that lead it to abandon its fisheries, a 45% or 50% allocation of an entire run that passes through its customary fishing grounds would be manifestly inappropriate because the livelihood of the tribe under those circumstances could not reasonably require an allotment of a large number of fish.”
Based on a reading of this case and other decisions which have examined moderate living, it does not appear to the Court that moderate living considerations would, as defendants have implied, obviate a determination of the Tribes’ shellfishing rights under the treaties. See e.g. U.S. v. State of Washington, 774 F.2d 1470, 1475 (9th Cir.1985) and Lac Cowrie Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, 686 F.Supp. 226 (W.D.Wis.1988). Instead, these cases demonstrate that the Court must first determine general treaty fishing rights, then consider how moderate living considerations, if applicable, affect allocation amounts based on the factors suggested by the Supreme Court as well as the specific circumstances of each case.
3) As a result, the Court finds that this motion is more appropriately deemed a motion to bifurcate the issue of moderate living from this subproceeding and a request of the Court to defer resolution until a later date. The Court concludes that moderate living considerations are relevant in this subproceeding and Denies the Tribes’ motion for summary judgment on the moderate living issues. The parties shall be prepared to proceed with their respective evidence and positions on the moderate living issue.
4) The Court has also reviewed the interrogatories propounded upon the Tribes by the defendants. The Court concludes that the following types of questions are irrelevant to this subproceeding:
i) Individual tribal members income from child support
ii) Individual tribal members alimony or spousal maintenance income
iii) Individual tribal members public assistance benefits
iv) Individual tribal members retirement income
v) Individual tribal members disability compensation
vi) Individual tribal members grants, contracts and other transfer payments
Except for the foregoing, all other interrogatories shall be answered not later than May 1,1993.
5) The Court orders that this subpro-ceeding will proceed in the following manner:
i) First, a determination of whether, under the treaties, the Tribes have an entitlement to shellfish, and if so, what types and species the Tribes are entitled to. A motion is pending on this issue.
*1205ii) Second, a determination of what allocation the Tribes are entitled to under the treaties.
iii) Third, a determination of the “usual and accustomed grounds and stations” where the Tribes have the right of taking shellfish.
The Court will hear evidence on moderate living, environmental degradation and other sub-issues as they arise when the posture of the case indicates that a resolution of these issues would be appropriate. The parties shall be prepared to offer such evidence when requested to do so by the Court.
6) The Court presently believes that a determination of these issues necessarily overlap and interrelate to such a degree that procedurally and practically, this sub-proceeding should not be bifurcated. The Court believes that all of the above determinations, including shellfish allocation, can be resolved in this subproceeding without the need for bifurcation. Procedurally, bifurcation would serve only to further delay this already long-pending subpro-eeeding.
7) Consequently, to assist the Court in administering this litigation efficiently, the Court also Orders the following:
Assuming that the Court determines that the treaties at issue provide the tribes with shellfishing rights,
i)Each Tribe shall not later than May 1, 1993, file and serve a statement in writing setting forth the following:
1) The specific locations of the usual and accustomed grounds and stations where it contends a right of taking shellfish exists;
2) The species of shellfish claimed to be encompassed by the treaties; and
3) The evidence upon which it will rely to establish the usual and accustomed grounds and stations where it contends a right of taking shellfish exists.
This evidence and the identified locations and species shall be stated with reasonable specificity. The statements will not be binding, will not waive claims or defenses and may not be offered in evidence against a party in a later proceeding. This evidence is sought by the Court solely to assist the Court in resolving this subproceeding in an efficient and expeditious manner.
IT IS SO ORDERED.
The Clerk of the Court is directed to send copies of this Order to all counsel of record and others entitled to notice, via facsimile, immediately.
ORDER DISMISSING WITHOUT PREJUDICE PHASE II AND CERTAIN SUBPROCEEDINGS IN PHASE I
(June 23, 1993)
BARBARA J. ROTHSTEIN, Chief Judge.
HAVING reviewed the responses of the parties to the interrogatories propounded by the court on February 10, 1993, the court’s proposed “Sunset Order,” and an earlier draft version of this order, and having held a status conference on Thursday, June 10, 1993, the court hereby finds and rules as follows:
1. Phase II. The United States Court of Appeals for the Ninth Circuit addressed Phase II of this case in United States v. Washington, 759 F.2d 1353 (9th Cir.1983). (en banc) The Ninth circuit affirmed this court’s determination as to hatchery fish, but reversed the declaratory judgment entered by this court that the State had a duty to refrain from degrading or authorizing the degradation of the fish habitat to an improper degree. The Ninth Circuit *1206concluded that this issue was not appropriate for resolution by declaratory judgment, and added:
The legal standards that will govern the State’s precise obligations and duties under the treaty with respect to the myriad State actions that may affect the environment of the treaty area will depend for their definition and articulation upon concrete facts which underlie a dispute in a particular case.
759 F.2d at 1357. In the ten years since the Court of Appeals decision in 1983, there has been little or no activity by any party in Phase II of this case.
In light of the determination by the Ninth Circuit, and the failure to prosecute for a decade, Phase II is DISMISSED without prejudice to the right of any party to raise the issue in any sub-proceeding in which that party alleges “concrete facts which underlie a dispute in a particular case.”
2. Sub-Proceedings 80-1, 80-2, 83-7, 87-5, and 92-2. It appears that these five subproceedings have been concluded and require no further action by the court. Each of these sub-proceedings is therefore DISMISSED without prejudice.
3. “Moderate Living”. The State of Washington filed a “Request for Determination Moderate Living” on June 20, 1980. The Request did not receive a subproceed-ing designation because it was filed before that numbering system began. The State has not pursued the Request in the 13 years since it was filed. It is therefore DISMISSED without prejudice. To the extent “moderate living” has been raised as an issue in other active subproceedings, it may be resolved in those subproceed-ings.
4. Active Subproceedings. The Court deems only the following subproceedings to be active and pending: 83-3, 83-4, 83-5, 86-2, 86-5, 86-7, 88-1, 89-2, 89-3, 90-1, 91-1, and 92-1. Sub-proceeding 89-3 is pending before Judge Rafeedie. All other active subproceedings are pending before Chief Judge Rothstein.
ORDER RE: CHEHALIS INDIAN RESERVATION BOUNDARIES
Subproceeding No. 83-3; No. 83-117T(C)
(July 2, 1993)
BARBARA J. ROTHSTEIN, Chief Judge.
THIS MATTER comes before the court on objections filed by the Confederated Tribes of the Chehalis Indian Reservation (“Confederated Tribes”) to a Report and Recommendation issued by Magistrate Judge John L. Weinberg on February 23, 1993 concerning the boundaries of the Chehalis Indian Reservation. Having reviewed the Report and Recommendation together with all documents filed in support and in opposition, and being familiar with the record in this case, the court finds and rules as follows:
I. INTRODUCTION
In this subproceeding of United States v. State of Washington, No. 9213, plaintiff Confederated Tribes requests, among other things, a declaratory judgment that plaintiff has the right to fish upon its reservation without interference from the State of Washington or state fisheries and game agencies. This request has resulted in a controversy over where the boundaries of the Chehalis Indian Reservation lie. The Confederated Tribes insist that the boundaries remain where they were drawn by order of the Secretary of Interi- or in 1864 when the reservation was created, while the State of Washington argues that the reservation was diminished to a small remnant of its former size by an *1207executive order issued in 1886.1 In his Report and Recommendation, Judge Weinberg adopted the State of Washington’s position. For the following reasons, the court declines to adopt Judge Weinberg’s Report and Recommendation, and finds that the Chehalis Indian Reservation boundaries were not diminished by executive order in 1886, but remain as originally established in 1864.
II. LEGAL ANALYSIS
A. Standard of Review
Once a reservation is established, there is a strong presumption that it remains intact. DeCoteau v. District County Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). Diminishment is not lightly inferred and will be found only where there is a clearly evinced congressional or executive intent to accomplish that end. Solem v. Bartlett, 465 U.S. 463, 470, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). Any ambiguities are resolved in favor of undiminished reservation status. Solem, 465 U.S. at 472, 104 S.Ct. 1161; DeCoteau, 420 U.S. at 444, 95 S.Ct. 1082.
The clearest case for finding diminishment is one where the language of the legislation or order at - issue contains explicit terms of cession by the Indians, the government unconditionally promises to pay a fixed sum in compensation for the ceded lands, and the tribe ratifies the agreement. See, e.g., DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975). Even when there was no ratification or promise to pay a sum certain, diminishment has been found where the statutory language and events surrounding the passage of the legislation show a clear intent to diminish the boundaries, and the government promises to turn over the proceeds of sale of the opened lands to the Indians as it is received. See, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977).
But legislation simply opening up lands within an Indian reservation for settlement and purchase under homestead laws has not been deemed sufficient to diminish the reservation in the absence of explicit evidence of intent to do so. Solem v. Bartlett, 465 U.S. 463, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984); Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973); Confederated Salish & Kootenai Tribes v. Namen, 665 F.2d 951, 954-60 (9th Cir.1982); Colorado River Indian Tribes v. Town of Parker, 705 F.Supp. 473 (D.Ariz.1989). Standing alone, even statutory language stating that an Indian tribe cedes, surrenders, grants and conveys all claim, right, title and interest in reservation lands has been held not to evince a clear congressional intent to disestablish the reservation. United States v. Grey Bear, 828 F.2d 1286, 1289-91 (8th Cir.1987).
B. Relevant Factors for Review
The Supreme Court has pointed to three factors which a court must consider to determine congressional or executive intent: (1) the language of the statute or order; (2) the circumstances surrounding the passage of the statute or issuance of the order; and (3) subsequent treatment of the land. Solem, 465 U.S. at 470-72, 104 S.Ct. 1161; Mattz v. Arnett, 412 U.S. at 505, 93 S.Ct. 2245. This court will consider each factor in turn.
*12081. Language of executive order
The executive order of October 1, 1886 states without further explanation that a tract of land comprising the better part of the Chehalis Indian Reservation “be, and the same is hereby, restored to the public domain.” The order also provides that a much smaller portion of the Chehalis Indian Reservation “be, and the same is hereby, withdrawn from sale or other disposition, and set apart for the use and occupation of the Chehalis Indians.”
Judged solely on its face, the language of the executive order appears to indicate an executive intent to diminish the Chehal-is Indian Reservation. Compare Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 354, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962), which held that the size of the Colville Indian Reservation was diminished by a congressional act stating that about one-half of the original reservation should be “vacated and restored to the public domain....”
2. Circumstances surrounding issuance of order
However, an examination of the circumstances surrounding the 1886 order puts the matter in a very different light. They reveal that the goal was not diminishment of the reservation; returning the reservation lands to the public domain was merely a necessary step to achieving the goal of allotting reservation lands to individual Indian families.
The Chehalis Indian Reservation was originally established, not by treaty, but by order of Secretary of Interior J.P. Usher on July 8, 1864. Over the next two decades, the Commissioner of Indian Affairs (“CIA”) as well as Indian agents in charge of supervising the reservation became increasingly interested in allotting reservation lands to individual Indians, and increasingly frustrated by the legal barriers to doing so.
In his report of August 21, 1884 to the CIA, Indian Agent Edwin Eells described the problem: “Not being a treaty reservation, there is no authority of law for granting these Indians patents for their allotments. Consequently, nothing has been done in this way for them during the past year.” (Ex. SH-CH-M-387) Another report by Eells dated August 20, 1885 (Ex. SH-CH-M-391) expands on his prior explanation and suggests a solution:
The Chehalis Indians live on a reservation situated on the Chehalis River, about 25 miles inland. This reservation was set aside by executive order and is not a treaty reservation. As a consequence, the Government is not under any treaty obligations to give patents to the Indians living thereon. The lands have been allotted to them in severalty, and they have small farms, but there is no way for them to get patents as the other Indians can. Dining the last session a bill was introduced into Congress authorizing the President to give them patents for their homes, but it failed to pass and probably always will. For this reason I have suggested to the Department that the executive order be so changed that the Indians residing thereon be allowed to take the lands they occupy under the Indian homestead laws. If this could be done they would then be secured in the quiet and peaceable possession of their homes.
Agent Eells’ solution was adopted. On October 1, 1886, President Grover Cleveland signed an executive order restoring most of the original Chehalis Indian Reservation to the public domain. Contemporaneous correspondence relating to this order includes a letter from CIA Atkins to the Secretary of Interior dated September 25, 1886, which confirms that Agent Eells’ desire to get around the legal problems *1209hindering the allotment process was the inspiration for the executive order. (Ex. SH-CH-M-321) The CIA sets forth the history of the creation of the Chehalis Reservation. He then says that in a letter dated April 28, 1885, Agent Eells suggested that an executive order should be issued allowing the Chehalis Indians to enter their lands at the Olympia land office under the homestead laws so that they could acquire title. According to Atkins, Eells was informed that there was no authority for this course of action, but that Eells could allot the lands to the Indians in accordance with an allotment bill, and that if the bill failed to pass, the lands could be restored to the public domain and then entered by the Indian occupants under the homestead laws. The letter goes on to say that on January 2, 1886, Eells furnished schedules of allotments made, which included all of the reservation lands except for 471 acres reserved for a school farm, and expressed hope that title could be given to the Indians as soon as possible. Atkins’ letter indicates that “[t]hese Indians are anxious to receive titles for their lands, more especially as all the other Indians belonging to the Nisqually Agency have received patents. This desire has existed for some years, and is a natural one which ought to be granted if possible.” The letter also reflects the CIA’s belief that although the reservation was established by action of the Department of Interior alone, “the restoration should be made by Executive Order.” CIA Atkins accordingly enclosed a draft of an “order restoring the lands and setting apart 471 acres for the use of the Indians, (for school purposes),” and recommended that it be sent to the president for signature,
Ex. SH-CH-M-328 is a copy of a handwritten Department of Interior memo dated October 4, 1886 referring to an executive order “restoring certain described lands, heretofore known as Chehalis rs. in Wash. Ter. to the public domain.” Ex. SH-CH-M-324 is a copy of a letter from an Assistant Secretary in the Department of the Interior to the CIA also dated October 4, 1886, which states that enclosed is an executive order “restoring the lands therein described, heretofore known as the Chehalis Indian reservation in Washington Territory, to the public domain, and reserving and setting aside for the use and occupation of the Chehalis Indians” a small portion of land.
Other evidence in the record concerning the intent underlying the executive order includes the testimony of two experts, eth-nohistorian Dr. Barbara Lane and sociocultural anthropologist Dr. Nile Thompson. After reviewing the history of the establishment of the Chehalis Indian Reservation and the circumstances, surrounding the issuance of the 1886 executive order (Statement of Dr. Barbara Lane as Direct Testimony on Behalf of Chehalis Tribe, pp. 32-38 and 42-44), Dr. Lane concluded at p. 44:
One of the purposes of the 1864 Executive Order was to secure to the Chehal-is Indians lands from which they could not be evicted by encroaching settlement. The Executive Orders of 1886, 1908, and 1909 were issued in order to secure by trust patent Indian family holdings within the reservation boundaries. I have seen nothing in the documentary record to suggest any intent on the part of the United States to terminate or diminish the Chehalis Reservation.
Dr. Nile Thompson, who has done extensive field work among the Indians of Western Washington, testified about the settlement by various Indian bands of the lands which became the Chehalis Indian Reservation and the reasons for the selection of *1210that land to be included in the reservation. He too concludes:
There is no significant evidence in the historical record that the Executive Order of 1886 was intended to change the boundaries of the Chehalis Reservation. The view that the Executive Order of 1886 was an allotment scheme is supported not only by reference to the process as an allotment by researchers but by references by the Bureau of Indian Affairs itself that call the plan an Allotment Schedule and the Chehalis recipients allottees.
Declaration of Nile Thompson as Direct Testimony, p. 19.
The State of Washington relies on the testimony of historian Alan Newell, who testified that the 1886 order returned reservation lands to the public domain and that they were never returned to reservation status. (Newell Transcript, pp. 875-78) However, on cross-examination, Mr. Newell did acknowledge that “[t]he purpose of the executive order was to allow Indians to take allotments ... through the mechanism of the Indian homestead act.” (Newell Transcript, p. 893)
3. Subsequent treatment of land
A review of the subsequent treatment of the land in question since the signing of the 1886 order reveals conflicting evidence on whether the boundaries changed. In a chart contained in the 1887 Annual Report of the Commissioner of Indian Affairs, the Chehalis Indian Reservation is listed as including 480 acres. Ex. QN-M-85, p. 378. In his report to the CIA of September 2, 1890 (Ex. QN-M-88), Indian Agent Edwin Eells stated with regard to the Chehalis tribe, that “[w]hat is there called a reservation, is merely a collection of Indian homestead settlers grouped together on contiguous places.”
But reports after 1890 from school superintendents on the reservation seem to assume the existence of reservation boundaries as drawn in the original 1864 order. For example, on June 30, 1895, the superintendent of the Chehalis School reported that “[djuring the past spring, with the aid of the Indians, we cut a road ... connecting the reservation at the Chehalis-Thur-ston county line with our railroad station.” (Ex. SH-CH-M-375) Superintendent Frank Terry’s report of 1901 described the Chehalis Reservation as “a long, narrow strip of land, and the school is situated near one end of the reservation and is therefore inaccessible to the pupils living upon the other end. (Ex. SH-CH-M-383) Likewise, the superintendent’s report dated August 16, 1906 (Ex. SH-CH-M-384) describes the Chehalis Reservation as follows:
[It] is located near Oakville, Chehalis County, and these Indians are gradually improving their allotments and are generally prosperous. The low land is quite fertile and the higher land is used for winter grazing. The day school is well attended and has been quite successful. New roads have been built and old ones repaired, and we now have an excellent road thru [sic] the reservation to Oak-ville.
Exs. SH-CH-M-377 and -378 are copies of farming and grazing leases from 1911 through 1919 which state that the lands being leased are allotments on the Chehalis Indian Reservation. Ex. SH-CH-M-379 contains a letter of August 11, 1916 from the Supervisor of Forests to the CIA “[i]n connection with the sale of cottonwood timber on the Chehalis Indian Reservation and a letter dated September 15, 1916 from the Superintendent to the would-be purchaser of the timber referring to the CIA’s “declining to approve your contract for the purchase of cottonwood timber on the Chehalis Reservation.” The *1211timber in question was on several allotments.
Coming down to the present era, the record contains several exhibits leading to conflicting conclusions. Ex. SH-CH-M-496 is a copy of an agreement dated October 9, 1952 between the Chehalis Indian Tribal Council and the Washington Department of Fisheries concerning regulations for the management of the Chehalis River salmon runs within the boundaries of the Chehalis Indian Reservation. This agreement recognizes the existence of an on-reservation fishery stretching to the original reservation boundaries.
Regarding the subject of on-reservation fisheries, the Confederated Tribes also present the testimony of Gene Deschamps, the tribal fishery’s biologist for the past six and one-half years. Before then, he was employed for thirty years by the State Department of Fisheries as a biologist for the State of Washington. His current responsibilities include overall management of the tribal fisheries and negotiations with the State of Washington concerning seasons and catches. Mr. Deschamps testified that “[d]uring [his] entire time with the State of Washington, it was clear in both action and words that the State of Washington recognized the on-reservation fishery of the Confederated Tribes of the Chehalis Indian Reservation.” (Declaration of Gene Deschamps as Direct Testimony, p. 3)
The State of Washington in turn stresses the contents of a memorandum dated March 13, 1964 from J.L. Vaninetti, Agency Realty Officer to G.M. Felshaw, Superintendent, on the history of the Chehalis Reservation. (Ex, SH-CH-M-337) Vani-netti reviews the creation of the reservation and the issuance of the executive orders restoring lands to the public domain. He concludes with the statement that “[t]he present Chehalis Reservation area consists of 346.7 acres, more or less.”
On the other hand, the Confederated Tribes point to the Constitution and Bylaws of the Confederated Tribes of the Chehalis Reservation (Ex. 5H-CH-M-243), which state that their jurisdiction “shall extend to the territory within the present boundaries of the Chehalis Indian Reservation as established by Executive Order of July 8, 1864, ...” The Constitution and Bylaws were approved by Deputy Assistant Secretary of the Interior W.L. Rogers on July 11,1973.
Finally, Ex. SH-CH-M-322 is a report entitled “The Chehalis People” by the Confederated Tribes of the Chehalis Reservation published in 1989 which assumes that the reservation includes all of the lands originally allocated to it under the order of July 8, 1864. The report describes the reservation as follows:
The original land area of the reservation totalled 4,214.83 acres. In 1967, tribal lands totalled 21 acres and 1,709.58 acres were individually owned land in trust or restricted status. The remaining 2,484.25 acres is alienated land, which means that the ownership has been transferred to non-Indians. The trust lands are largely held by the descendants of the original allottees of the Chehalis Reservation.
III. CONCLUSION
Having carefully considered the language of the order and the historical record, the court finds that there is no “substantial and compelling evidence of a[n executive] intention to diminish Indian lands” as required under Supreme Court precedent. Solem, 465 U.S. at 472, 104 S.Ct. 1161. It is true that, viewed alone apart from its historical context, the language of the executive order tends to sup*1212port the conclusion that diminishment was intended.2
But upon review of the events surrounding the issuance of the executive order, the court is convinced that there was no intent to diminish the size of the Chehalis Indian Reservation. Returning reservation lands to the public domain was only a means of accomplishing the actual purpose of allotting reservation lands to individual Indians. Based on the record before it, the court is persuaded that no Chehalis reservation lands would have been returned to the public domain in 1886 if the allotment process could have been effected without changing the reserved status of those lands.3 Thus, the requisite specific intent to diminish the reservation was absent.
Finally, the subsequent treatment of the reservation is for the most part not consistent with the conclusion that it suffered significant diminishment in 1886. Only those exhibits narrowly based on the language of the 1886 executive order conclude that the reservation was diminished. See, e.g., Exs. SH-CH-M-323, SH-CH-M-324, EX. QN-M-87 at p. 378, SH-CH-M-337. The exhibits reflecting the pragmatic treatment of the reservation lands all support the premise that people considered the reservation to encompass all lands within the original 1864 boundaries. This includes not only the Confederated Tribes, but the federal government and the State of Washington. In particular, the State of Washington has consistently recognized an on-reservation fishery as defined by the Confederated Tribes to include all lands within the 1864 reservation boundaries.
Thus, the court concludes that the boundaries of the Chehalis Indian Reser*1213vation remain where they were drawn by order of the Secretary of Interior in 1864 and were not diminished by the executive order of 1886.4
ORDER MODIFYING PARAGRAPH 25 OF PERMANENT INJUNCTION
(Aug. 24, 1993)
BARBARA J. ROTHSTEIN, Chief Judge.
Paragraph 25 of the court’s March 22, 1974, permanent injunction (384 F.Supp. at 419) is modified to provide as follows:
25. (a) The parties or any of them may invoke the continuing jurisdiction of this court in order to determine:
(1) Whether or not the actions intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # I or this injunction;
(2) Whether a proposed state regulation is reasonable and necessary for conservation;
(3) Whether a tribe is entitled to exercise powers of self-regulation;
(4) Disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves;
(5) Claims to returns of seized or damaged fishing gear or its value, as provided for in this injunction;
(6) The location of any of a tribe’s usual and accustomed fishing grounds not specifically determined by Final Decision # I; and
(7) Such other matters as the court may deem appropriate.
(b) To invoke this court’s continuing jurisdiction, the party seeking relief shall initiate a subproceeding in this action by filing a request for determination. Subproceedings will be conducted in accordance with the following procedures:
(1) Before a request for determination is filed (except for an emergency matter, addressed below), the party seeking relief (“requesting party”) shall meet and confer with all parties that may be directly affected by the request (“affected party”) and attempt to negotiate a settlement of the matter in issue. Counsel for the requesting party shall be responsible for scheduling the initial meeting and shall notify all parties to this action of the time and place of the meeting. All affected parties shall cooperate by participating in such a meeting when requested to do so upon reasonable notice from the requesting party. Policy representatives of and counsel for the participating parties, shall be present at the meeting. In addition to other matters the parties may wish to address, the parties shall discuss at the meeting (A) the basis for the relief sought by the requesting party; (B) the possibility of settlement; (C) whether the matter is properly one for the Fisheries Advisory Board (FAB); (D) identification of technical issues relevant to the matter in controversy, areas of agreement and disagreement on such issues, and methods for developing an agreed technical basis to narrow or resolve the controversy; (E) whether *1214independent extra-judicial actions (e.g., regulatory action by a government agency) may remove the need for or warrant deferral of an adjudication; (F) whether earlier rulings of the court may have addressed or resolved the matter in issue in whole or in part; and (G) whether the parties can agree to mediation or arbitration of the issues before or in lieu of litigation. The parties shall continue to meet and negotiate as long as there appears to them to be a substantial possibility of settlement. If the negotiations fail, the parties may proceed to mediation in accordance with subparagraph (b)(2) or, absent mediation, the requesting party may file its request for determination. Except as provided in subparagraph (b)(7), no request for determination shall be filed sooner than 15 days after the conclusion of negotiations.
(2)If the requesting party and the affected parties are unsuccessful in negotiating a solution to the issue in accordance with subparagraph (b)(1), the requesting party or any affected party may demand mediation within 12 days after the conclusion of the unsuccessful negotiations. Notice of demand for mediation shall be served upon all parties to this action. The requesting party and all affected parties shall participate in the mediation, which shall be conducted pursuant to local Civil Rule 39.1(c)(3)(7). The requesting party or an affected party may move the court for an order (A) compelling mediation under this sub-paragraph or (B) waiving mediation under this subparagraph or relieving the. moving party from any obligation to participate in a mediation. Unless agreed or ordered otherwise, the parties participating in the mediation will share the mediator’s fees and related expenses on a pro rata basis.
(3) After complying with the foregoing requirements (including Rule 39.1 mediation if applicable), a party seeking relief shall file with the clerk of this court and serve upon all other parties (through their counsel of record, if any) a “request for determination,” not to exceed twelve pages in length. The request for determination shall contain a short and plain statement setting forth the factual and legal basis of the claim for relief or other matter presented to the court, and a statement of the relief sought by the requesting party. The request shall not contain legal argument or be accompanied by submission of evidence. Counsel for the requesting party shall file with the request for determination a declaration attesting to that party’s compliance with the requirements of subparagraph (b)(1).
(4) A party wishing to file a response to a request for determination shall do so no later than sixty days after the filing date of the request. A party responding to a request may assert a counter-request for determination if such counter-request relates directly to the subject matter of the request for determination. Cross-requests between respondents are discouraged and shall be permitted only with prior permission of the court. Counsel for parties participating in a subproceeding shall submit a separate notice of appearance with the party’s request for determination or before or with the party’s response.
(5) Motion practice, discovery and case scheduling in subproceedings initiated under this paragraph 25 shall be conducted in accordance with the Federal Rules of Civil Procedure and the general and civil rules of this *1215court. Each subproceeding shall be subject to local Civil Rule 39.1. The court and the parties may employ the procedures provided by Rule 39.1 to the same extent as if the subproceed-ing were a separate action, but where the parties have participated in a pre-filing mediation pursuant to subpara-graph (b)(2), the court will not require a second mediation in the subproceed-ing except upon agreement of the requesting party and a majority of the adverse respondents.
(6) No later than ninety days after the initiation of a subproceeding by a request for determination, any party seeking referral of the matter to a special master or United States Magistrate Judge shall file a motion seeking such referral and specifying whether the party seeks appointment of a special master or magistrate judge and the nature of the functions the party proposes to have delegated to that officer. Referrals to special masters or magistrate judges shall be made on a case by case basis, in the discretion of the court, pursuant to Fed.R.Civ.P. 53 or 28 U.S.C. § 636(b). To facilitate appointment of special masters and mediators, the court will maintain a register of persons who are qualified and available to serve in such capacities in this action. The parties may nominate persons to be named on the register, and the court will consider the nomination on the basis of the candidate’s qualifications and the extent of support for the nomination among the parties. Parties may propose persons not named on the register for appointment in individual sub-proceedings. The parties shall proffer their initial nominations to the court by October 1,1993.
(7) Any party may seek determination of an emergency matter subject to satisfaction of the following conditions: (A) the party shall initiate a subproceeding (if not previously initiated) by filing and serving on all parties a request for determination; (B) the requesting party shall file with the request and serve on all parties a motion for temporary restraining order or preliminary injunction, which shall comply with and be decided in accordance with the civil rules and legal standards generally governing such motions; and (C) the requesting party shall file and serve a declaration of counsel stating that the party has made a bona fide effort to resolve the emergency issue with the affected parties and has failed to do so; that actual notice of the motion has been provided to each party that is the subject of the motion; and that the matter in issue constitutes an emergency in the judgment of the party and its attorney. Motions for temporary restraining orders shall be filed only in circumstances where irreparable harm is likely to occur before a hearing on a motion for preliminary injunction can be scheduled.
(8)Upon receipt of a motion for temporary restraining order or preliminary injunction complying with subparagraph (b)(7), the court will advise the parties of the time and date for hearing, whether further briefing will be required before hearing, and whether oral testimony will be permitted or required at the hearing. Unless the ruling on the motion for temporary restraining order or preliminary injunction finally disposes of the request for determination in its entirety, the request shall be decided in accordance with this paragraph 25 in the ordinary course of the court’s business.
*1216(9) Except as specifically provided in this paragraph, this injunction shall not alter or deprive the parties of any right to bring motions or other matters before this Court as provided in the Federal Rules of Civil Procedure.
ORDER GRANTING PLAINTIFF TRIBES’ SUMMARY JUDGMENT MOTION THAT SHELLFISH ARE FISH
Subproceeding No. 89-3
(Sept. 2, 1993)
EDWARD RAFEEDIE, District Judge.
TO ALL COUNSEL OF RECORD:
The Court has read and considered the cross motion for summary judgment brought by the plaintiff seeking a determination that shellfish are fish and the cross motion for summary judgment brought by the defendant seeking dismissal. The Court views the issue involved in both motions as whether shellfish are the same as “fish” under the Stevens Treaties of 1854. Specifically, the Tribes and the State of Washington disagree as to whether shellfish are included in the “right of taking fish” and have filed these cross motions for summary judgment on the issue of whether shellfish are the same as “fish” under the Stevens treaties. The Court has considered both motions in this order and finds that shellfish are encompassed within the word “fish” under the treaties.1
This case involves an interpretation of the Stevens Treaties and the scope and nature of Tribal shell-fishing rights thereunder. The Tribes have claimed a right to harvest shellfish outside of their reservations as allegedly provided for in the treaty clause:
“The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.”
Issac I. Stevens2 and George Gibbs were the primary negotiators of the treaties for the United States. The treaties were written in English and translated for the Indians by an interpreter employed by the United States using Chinook jargon. Chi-nook jargon was not a native Indian language, but consisted of approximately “three hundred words used to convey rudimentary concepts, but not the sophisticated meaning of treaty provisions about which highly learned jurists and scholars differ.” United States v. State of Washington, 384 F.Supp. 312, 330 (1974) (also referred to as the Boldt decision).
Standard for Summary Judgment
Fed.R.Civ.P. 56(c) provides that summary judgment will be granted if the moving party can establish that there is “no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978). It is the moving party’s burden to *1217inform the Court of the basis for its belief there are no genuine issues of material fact and this may be demonstrated by pointing out an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Canons of Treaty Construction
According to United States v. Choctaw Nation, 179 U.S. 494, 506, 21 S.Ct. 149, 45 L.Ed. 291 (1900), the intentions of the parties to the treaty will control the treaty’s interpretation. In determining the intentions, a Court should look to “the words used — the words being interpreted, not literally nor loosely, but according to their ordinary signification. If the words be clear and explicit, leaving no room for doubt what the parties intended, they must be interpreted according to their natural and ordinary significance.” Id. (emphasis added).
Therefore, under the familiar cannon of statutory construction, the starting point for interpreting a statute (in this case a treaty) is the language of the statute itself and “absent a clearly expressed legislative intention to the contrary, ... [treaty] language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980); See also Sumitomo Shoji America Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (“Clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent of expectations of its signatories”).
Special canons of construction are applied to determine the meaning of Indian treaties. Those canons provide that any ambiguities in language must be resolved in favor of the Indians, that the language should not be' construed to the prejudice of the Indians, and that technical meanings should be avoided in favor of the understanding of the Indians. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675-676, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 528, 8 L.Ed. 483 (1832); Winters v. United States, 207 U.S. 564, 577, 28 S.Ct. 207, 52 L.Ed. 340 (1908); U.S. v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905).
Finally, treaties must be “viewed in historical context and given a ‘fair appraisal’,” in light of how treaty language was understood by the tribal representatives who participated in their negotiation. Fishing Vessel, 443 U.S. 658, 675, 99 S.Ct. 3055 (1979); Tulee v. Washington, 315 U.S. 681, 684-685, 62 S.Ct. 862, 86 L.Ed. 1115 (1942).
The pertinent language of the treaties at issue can be divided into the following sections:
1) “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, ...”
2) “together with the privilege of hunting and gathering roots and berries on open and unclaimed lands ...”
3) “Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.”
PLAIN LANGUAGE/READING OF TREATIES
Under a plain reading of the treaty language, it appears to the Court that the last phrase, “[provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens,” prohibits the taking of shellfish from staked or culti*1218vated beds. Since this appears to be an exception concerning a particular class of shellfish (i.e. shellfish found in a particular location), it logically follows that shellfish were included in the “right of taking fish” referred to in the first sentence. This interpretation is well taken, for if shellfish-ing rights had not been encompassed within this phrase, the entire third clause, “Provided, however ... ”, would serve no purpose.
Also, “[I]t is an elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.” Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). Thus, this treaty should be interpreted and read to give effect to all its provisions and to avoid the conclusion that some words have no meaning. Under this analysis, the Court finds that shellfish are encompassed with the word “fish”.
However, even if the Court were to find that the treaty language at issue was ambiguous on the intended meaning of the word “fish”3, an interpretation that “fish” includes shellfish would still result in light of the policy that any ambiguities in language must be resolved in favor of the Indians, that the language should not be construed to the prejudice of the Indians, and that technical meanings should be avoided in favor of the understanding of the Indians. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675-676, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 528, 8 L.Ed. 483 (1832); Winters v. United States, 207 U.S. 564, 577, 28 S.Ct. 207, 52 L.Ed. 340 (1908).
Finally, beyond the plain language of the treaties themselves, prior case law addressing the historical background of the Indian treaty negotiations appear to support a finding that treaty term “fish” includes shellfish. As stated by the Court in United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 49 L.Ed. 1089 (1905), the Treaties should not be viewed as grants of rights to the Indians, but as grants of rights from the Indians to the United States. Thus, rights which were already possessed by the Indians and not granted to the United States were reserved by the Indians.
Consequently, the court finds that the treaty language may also be construed to connote that the “[pjrovided, however” clause merely establishes limits an already existing Tribal right to harvest shellfish. In other words, if the Indians did not negotiate shellfishing rights, it is assumed that the Indians intended to reserve their shellfishing rights except for those limitations placed upon shellfishing that were specifically placed in the treaties.
It is also undisputed that the Indians harvested shellfish. In the Boldt decision, United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), the Court made several statements and findings of fact showing that the Indians specifically relied on fish and shellfish and engaged in extensive shellfishing:
1) “One common cultural characteristic among all these Indians was the almost universal and generally paramount dependence upon the products of an aquat*1219ic economy, especially anadromous fish, to sustain the Indian way of life.” Finding of Fact No. 3, Id. at 850.
2) “Aboriginal Indian fishing was not limited to any species. They took whatever species were available at the particular season and location.” Finding of Fact No. 11, Id. at 352.
3) “In the decade immediately preceding the treaties, Indian fishing increased in order to accommodate increased demand for local non-Indian consumption and for export, as well as to provide money for purchase of introduced commodities and to obtain substitute non-Indian goods for native products which were no longer available because of the non-Indian movement into the area. Those involved in negotiating the treaties recognized the contribution that Indian fishermen made to the territorial economy because Indians caught most of the non-Indians’ fish for them, plus clams and oysters.” Id. at 351-52.
4) “[The] major food sources of the Northwest Indians were the wild fish, animal and vegetative resources of the area .... individual families dispersed in various directions to join families from other winter villages in fishing, clam digging, hunting and gathering roots and berries and agricultural pursuits.” Id. at 350-351.
5) “Prior to the Treaty of Point Elliot, the Lummi, Semiahmoo and Samish Indians had been engaged in the trade in salmon, halibut and shellfish both with other Indians and with non-Indians.” Finding of Fact No. 45, Id. at 360.
Further evidence of the Indian’s shell-fishing activities were noted by the Ninth Circuit in United States v. Aam, 887 F.2d 190, 195 (9th Cir.1990):
“At the time of the [Treaty of Point Elliot], the Suquamish Indians harvested shellfish from tidelands over a wide area of Puget Sound. The district court found that such shellfish formed a staple in their diet, although salmon provided most of the tribe’s food.”4
Also, the treaty negotiators, Stevens and Gibbs, noted the importance of shellfish to the Indian economy:
1) Stevens explicitly reported that the Indians “catch most of our fish, supplying not only our people with clams and oyster, but salmon to those who cure and export it.” (Letter, from Stevens to the Commissioner of Indian Affairs Ma-nypenny, December 30,1854).
2) Gibbs spoke of Indians taking a “great variety” of shellfish and that “many of these are dried for winter stores.” Tribes of Western Washington and Northwestern Oregon, Department of the Interior, Washington D.C. 1877).
Based on the above analysis, the Court finds that under the treaties, shellfish are included in the right of taking fish. Therefore, the Plaintiff Tribes’ Motion for Summary Judgment that shellfish are fish is Granted and the Defendant’s Motion for Summary Judgment of Dismissal is Denied.
IT IS SO ORDERED.
The Clerk of the Court is directed to send copies of this Order to all counsel of record and others entitled to notice, via facsimile, immediately.
ORDER ON FIVE MOTIONS RELATING TO TREATY HALIBUT FISHING
Subproceeding No. 92-1
(Dec. 29, 1993)
BARBARA J. ROTHSTEIN, Chief Judge.
THIS MATTER comes before the court on five pending motions in the above-cap*1220tioned cases, which have been consolidated for the limited purpose of considering these motions. In No. C85-1606, three parties have filed motions for partial summary judgment: the' Makah Indian Tribe (“Makah”), the Secretaries of Commerce and State (“federal defendants”), and the State of Oregon. Makah has also filed essentially identical motions for a preliminary injunction in No. C85-1606 and Civil No. 9213, subproceeding 92-1. Having reviewed the submissions of the parties relating to those motions, the Report and Recommendation on Five Motions Relating to Treaty Halibut Fishing submitted by United States Magistrate Judge John L. Weinberg, and relevant other portions of the record in both cases, the court finds, and rules as follows:
I. FINDINGS AND CONCLUSIONS ADOPTED
The court adopts the findings and conclusions set forth in Magistrate Judge Weinberg’s Report and Recommendation regarding the following issues:
(A) judicial confirmation of Makah’s treaty right to fish for halibut as determined by the Secretary of Commerce (“the Secretary”);
(B) the applicability to halibut of the rule for salmon that a treaty tribe is entitled to take 50% of the harvestable surplus which passes through its usual and accustomed fishing grounds, unless a lesser amount is sufficient to assure a moderate living;
(C) judicial confirmation of the boundaries of Makah’s usual and accustomed halibut fishing grounds as determined by the Secretary;
(D) the violation of Makah treaty rights inherent in the Secretary’s past procedure for allocating the halibut harvest in Area 2A-1;
(E) declining to consider the issue of directing the Secretary to account for by-catch mortality;
(F) declining to direct the Secretary to consider the option of subregional allocations of the available halibut harvest; and
(G) the lack of any obligation imposed by treaty to attempt to secure for Makah the right to fish for halibut in waters outside the jurisdiction of the United States.
II. FINDINGS AND CONCLUSIONS NOT ADOPTED OR MODIFIED
The court declines to adopt the findings and conclusions set forth in the Report and Recommendation, and substitutes its own findings and conclusions concerning the following issues:
(A) Judicial confirmation of treaty tribe status and usual and accustomed fishing grounds of four other tribes.
The Secretary previously determined that eleven other tribes in addition to Makah have treaty rights to fish for halibut. See 50 C.F.R. § 301.19(b). Four of those eleven tribes, the Jamestown S’Klallam, Lower Elwha S’Klallam, Port Gamble S’Klallam and Skokomish Tribes, joined in Makah’s request for determination and motions asking this court for judicial confirmation of their treaty tribe status for purposes of halibut fishing.
The State of Washington opposed the four tribes’ request for judicial confirmation on the grounds that they did not make a specific enough showing, and that the state of Washington had not had a meaningful opportunity to do discovery or to retain expert witnesses to evaluate the four tribes’ claims to treaty fishing rights for halibut.
Having reviewed the pertinent record, the court rejects the State of Washington’s argument. It is true that the four tribes *1221did not file separate motions requesting the relief in question. However, the State of Washington has been on notice of the four tribes’ position since April 3, 1992 when they joined with the Makah in requesting judicial confirmation of their treaty tribe status. On April 23, 1992, the State of Washington filed an answer denying the four tribes’ entitlement to treaty tribe status.
More than a year elapsed between the time that the four tribes filed their request for determination on April 3, 1992 and their joinder on May 14, 1993 in the Ma-kah’s request for judicial confirmation of treaty tribe status. During that time, the State of Washington apparently chose to conduct no discovery regarding the four tribes’ request. The court finds that the State of Washington had ample opportunity to engage in discovery, and that the issue of the four tribes’ treaty tribe status for purposes of halibut fishing is, therefore, properly before the court for a decision at this time. The court also notes that the State of Washington did set forth arguments and evidence in opposition to the four tribes’ request. Thus, the court has had an opportunity to consider the State of Washington’s general contentions, if not all of the details which further discovery might provide.
Based on careful consideration of the evidence presented by the four tribes together with the State of Washington’s response, the court concludes that the record amply supports the findings of the Secretary that the four tribes have a right protected by the Treaty of Point No Point to fish for halibut in their usual and accustomed fishing grounds. The court further concludes that the boundaries of the four tribes’ usual and accustomed halibut fishing grounds are as determined by the Secretary and as set forth at 50 C.F.R. § 301.19(j).
(B) Ruling on Makah motion for summary judgment.
Although Magistrate Judge Weinberg concluded that the federal defendants’ past procedure for allocating the halibut harvest in Area 2A-1 violated Makah’s treaty rights, he recommended denying without prejudice its motion for summary judgment until the issue of the appropriate remedy was resolved. In keeping with Makah’s objection, the court concludes that Makah’s motion for summary judgment should be partially granted in the form of declaratory relief stating that federal defendants violated Makah’s treaty rights. However, the motion is denied as to the appropriate remedy for the 1989 through 1993 halibut fishing seasons until the moderate living issue is resolved.
(C) Standard for determining fish harvest to be allocated.
Magistrate Judge Weinberg recommended that the court grant the Makah motion for a preliminary injunction as to the 1994 and subsequent halibut fishing seasons. Instead of prescribing the percentage of the total available catch in Area 2A-1 to be allocated to treaty fishers, he recommended that the court direct the Secretary in more general terms to revise his regulatory scheme so that allocations afford treaty and non-treaty fishers the opportunity to take equal quantities of halibut within the treaty tribes’ usual and accustomed fishing grounds.
The court adopts Magistrate Judge Weinberg’s recommendation with one exception. Having carefully reviewed all of the objections and arguments filed with regard to the applicable standard which the Secretary should be directed to follow in making allocations to treaty and non-treaty fishers, the court concludes that Makah and the other tribes which briefed *1222the issue are correct. In formulating his allocation decisions, the Secretary must accord treaty fishers the opportunity to take 50% of the harvestable surplus of halibut in their usual and accustomed fishing grounds, and the harvestable surplus must be determined according to the conservation necessity principle. See United States v. State of Washington, 774 F.2d 1470, 1476 (9th Cir.1985). See also United States v. Washington, 520 F.2d 676, 685-86 and n. 3 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976) affirming Judge Boldt’s decision in 384 F.Supp. 312 (W.D.Wash.1974), which held that the determination of the number of fish available for harvest must be based solely on resource conservation needs.
Although the federal defendants do not disagree with the standard in principle, they voice concerns about conflicts with the total allowable catch set by the International Pacific Halibut Commission. These concerns are entirely hypothetical at this point and do not detract from the Secretary’s general obligation to strive as best he can to observe domestic law and protect treaty rights.
As for the State of Oregon’s objection, the court rejects the argument that only state and not federal regulatory agencies are bound by the conservation necessity principle in determining the harvestable surplus of fish to be allocated between treaty and non-treaty fishers. The decision in United States v. Eberhardt, 789 F.2d 1354 (9th Cir.1986), is entirely distinguishable. Unlike the situation in this case where the Department of Commerce is regulating the distribution of fish resources between treaty and non-treaty fishers, the agency in Eberhardt was acting as a trustee for the treaty tribes in accordance with the express, wishes of the majority of the Indians on the affected reservation.
(D) Description of fishers affected by ruling.
All parties agree that Magistrate Judge Weinberg’s references to treaty and non-treaty commercial fishers in his Report and Recommendation should be broadened to include treaty and non-treaty fishers in general, including non-treaty sport fishers as well as subsistence and ceremonial treaty fishers. The court accordingly adopts the more inclusive language.
III. CONCLUSION
In conclusion, the court GRANTS in part and DENIES in part Makah’s motion for partial summary judgment, GRANTS federal defendant’s motion for partial summary judgment as to Makah’s claims relating to Swiftsure and 40 Mile Banks, GRANTS Makah’s motions for preliminary injunction and STRIKES the State of Oregon’s motion as moot.
REPORT AND RECOMMENDATION ON FIVE MOTIONS RELATING TO TREATY HALIBUT FISHING
Subproceeding No. 92-1
(Oct. 1, 1993)
JOHN L. WEINBERG, United States Magistrate Judge.
INTRODUCTION
These case’s involve the right of the Makah Indian Tribe, and certain other treaty tribes, to fish for halibut.
There are two main areas of dispute: (a) the tribes claim they have not been allocated their fair share of the halibut harvest in the marine waters subject to U.S. jurisdiction; and (b) the Makahs assert they are entitled to relief because their commercial fishers have been denied access to two *1223productive fishing grounds now within the exclusive economic zone of Canada.
These general areas of dispute present a range of difficult and complex issues, including the following:
(1) Do the tribes have treaty rights to fish for halibut?
(2) If so, are those rights identical to their rights to fish for salmon?
(3) What are the “usual and accustomed fishing grounds” of each tribe for halibut?
(4) Have federal authorities improperly limited the allocations of halibut to the tribes over the past nine years?
(5) Are the tribes entitled to preliminary injunctive relief as to future allocations of halibut?
(6) Did the Treaty with the Makahs assure the tribe that federal authorities would protect the Makahs’ right to fish for halibut at the locations known as “Swiftsure” and “40 Mile Banks?”
(7) If so, have the federal defendants violated that obligation?
(8) If so, what is the appropriate remedy?
PENDING MOTIONS
There are five motions before the court in these two cases. Three are motions for partial summary judgment in C85-1606. Those motions have been filed by the federal defendants, by the Makahs, and by the State of Oregon. Also pending, and closely related to the motions for partial summary judgment, are two identical motions by the Makahs for a preliminary injunction, one filed in each of the two cases.
The court has partially consolidated the two cases for purposes of determining these motions and has referred all five motions to the U.S. Magistrate Judge.
The parties have submitted over. 1,000 pages of briefing on these motions, and a much larger volume of exhibits. They have also presented extensive oral argument on both sets of motions.
This Report and Recommendation sets forth proposed rulings on all five motions.
PROCEDURAL HISTORY
Case No. C85-1606. The Makahs filed this ease in 1985, and it was assigned to the Hon. Walter T. McGovern. Named as defendants were the United States Secretaries of Commerce and of State (“the federal defendants”). The court granted leave to intervene to the States of Washington and Oregon. The complaint raised essentially all the issues summarized above.
Early in the case, the federal defendants moved to dismiss several of the Makahs’ claims, asserting that they were not “justi-ciable” issues because they were within the exclusive domain of the Executive Branch. Judge McGovern granted the motion only as to one claim, holding that challenges to the content of regulations promulgated by the International Pacific Halibut Commission (“IPHC”) were not justiciable. He denied the motion in all other respects. (Judge McGovern’s order appears at docket no. 169.)
Even if the Makahs have a treaty right to fish for halibut, the other parties assert that the Makahs do not require a full 50% share of the available harvest to provide them the “moderate living” guaranteed by the treaty. Judge McGovern held this was a proper issue in the case, denying a Ma-kah motion for a protective order. But he also bifurcated the issue, ruling that both discovery and trial on this issue would *1224occur after disposition of the other issues in the case.
Judge McGovern heard oral argument on the three motions for partial summary-judgment on February 10, 1992. He denied all three motions ten days later when he dismissed the entire case (docket no. 257). The dismissal was based upon his ruling that the requests for relief were premature. The Makahs were required first to apply in U.S. v. Washington for determination of whether they had a treaty right to fish for halibut, and if so, what were their usual and accustomed fishing grounds. But on April 24, 1992, Judge McGovern vacated the portion of his order dismissing the action, and “transferred” the case to U.S. v. Washington (docket no. 271). The net effect was that the three motions for partial summary judgment were all revived.
Also pending in Case No. C85-1606 is the Makahs’ motion for preliminary injunction, which is identical to their motion filed in sub-proceeding no. 92-1.
Case no. 9213, sub-proceeding no. 92-1. In apparent response to Judge McGovern’s ruling in C85-1606, the Makahs began this sub-proceeding by filing a Request for Determination in March 1992. They sought determinations that the Treaty of Neah Bay secured their right to fish for halibut, as well as for other species, in their usual and accustomed fishing grounds, and that those grounds were the same as previously determined for salmon. The United States, the State of Washington, and various other tribes have responded to the Request for Determination. As previously noted, the Makahs then moved for a preliminary injunction.
HALIBUT FISHING AND REGULATION, GENERALLY
Halibut are highly-prized marine bot-tomfish. They are non-anadromous fish; i.e., they do not migrate from marine waters into fresh waters. Both commercial and sport fishers harvest halibut, and both treaty and non-treaty fishers. They harvest halibut in huge quantities from the Aleutian Islands and down the coasts of Alaska, Canada, Washington, Oregon and northern California.
Because halibut are taken both by Canadian and United States fishers, the “first level” of regulation is by an international body: the International Pacific Halibut Commission (“IPHC”). A principal purpose of regulation by the IPHC is to assure conservation of the halibut resource.
The IPHC has divided the entire halibut region into distinct areas or zones for halibut fishing (see “Exhibit 1” to this Report and Recommendation). Each year the IPHC sets an allocation of halibut which can be harvested in each area. Halibut is regulated by weight (“biomass”), not by numbers of fish. Thus, in a given year, the IPHC will determine the total weight of halibut which can be taken in each area during the year.
As indicated on exhibit 1, Area 2A comprises all the halibut fishing region south of Canadian waters. This includes the coasts of Washington, Oregon and northern California, as well as the Strait of Juan de Fuca and Puget Sound.
It is worth noting that the halibut allocation in Area 2A is generally quite small compared to that in several other areas. For example, the 1993 allocation to Area 2A was 600,000 pounds. The allocations for areas 2B, 2C and 3A were 10 million, 10 million and 20.7 million pounds, respectively.
The Secretary of Commerce, acting through another agency known as the Pacific Fisheries Management Council (“PFMC”), then divides among domestic *1225fishers the total allocation for Area 2A. The manner in which the Secretary makes this allocation among competing groups is the focus of one of the two issues in this case.
A principal part of that allocation is to reserve a quantity of the harvest for those tribes which have treaty rights to fish for halibut. The Secretary begins that task by making an administrative determination of which tribes have such treaty rights. He has determined that twelve tribes— including the Makahs — are entitled, under their treaties, to fish for halibut. Next, the Secretary determines the usual and accustomed halibut fishing grounds for each of these tribes. The Secretary has codified these determinations in the Code of Federal Regulations, In the current edition, they appear at 50 C.F.R. § 301.19.
The Secretary and the PFMC have defined a geographic area (“Area 2A-1”) which encompasses the usual and accustomed halibut fishing grounds of all twelve tribes. As shown on exhibit 2 to this Report and Recommendation, Area 2A-1 consists of all Washington waters north of the mouth of Grays Harbor, together with the Strait of Juan de Fuca and Puget Sound. It is part, but not all, of Area 2A as defined by the IPHC. The remaining portion runs southward down the Pacific Coast through Oregon and into northern California.
The Secretary and the PFMC then prescribe a quantity of halibut which may be harvested by treaty commercial fishers in Area 2A-1. The Secretary and PFMC allocate the balance to non-treaty commercial fishers and to sport fishers from each group.
The crucial fact, in considering the tribes’ contentions in this case, is that the treaty commercial fishers are permitted to harvest halibut only in Area 2A-1. The non-treaty commercial fishers, by contrast, may harvest halibut anywhere in Area 2A. They may elect to take any or all of their allocation in Area 2A-1, or may take some of it further south, in the remaining portion of Area 2A. In fact, the non-treaty commercial fishers historically have harvested in Area 2A-1 far more halibut than the quantity allocated to the treaty commercial fishers. In 1989 through 1992 inclusive, the non-treaty harvest has consistently been approximately double the treaty harvest.
TREATY RIGHTS TO FISH FOR HALIBUT IN U.S. WATERS
The first issue presented by all the pending motions is whether the Makahs, and perhaps the other tribes involved in sub-proceeding 92-1, have treaty rights to fish for halibut. The Makahs contend that their treaty preserved their right to fish for halibut, as well as for anadromous fish. The other tribes join in the Makahs’ contention and urge that they, too, enjoy treaty rights to fish for halibut. The federal defendants and the State of Oregon concur in the Makahs’ position, as a general contention. Only the State of Washington opposes it. And in fact, at least as to the Makahs, Washington’s opposition is less than vigorous.
First, the court should determine that this issue has not previously been determined in this case. It is true that, in the original decision in this case, Judge Boldt included some findings that the Makahs, and certain other tribes, customarily fished for halibut prior to the treaty. U.S. v. Washington, 384 F.Supp. 312, at 358 and 363 (1974). Despite these findings, Judge Boldt did not determine that any tribes had a treaty right to fish for halibut, or for any non-anadromous fish. Indeed, as later noted by Judge McGovern in his initial ruling on the summary judgment motions, Judge Boldt prescribed a procedure by *1226which a tribe could apply to the court for determination whether its treaty preserved to it the right to fish for non-anadromous fish. U.S. v. Washington, 459 F.Supp. 1020, 1037 (W.D.Wa.1978). If the court had intended in its initial decision to adjudicate the treaty right to fish for halibut, it would not have established a procedure for framing and resolving that very issue in the future.
Next, this court should determine that, on the pending motions, it is appropriate to pass on the treaty rights of only the Makah Tribe. In their motions, the Ma-kahs have clearly requested a determination that they have treaty rights to fish for halibut. They have supported their motion with substantial evidentiary documentation. The State of Washington has had ample opportunity to review those submissions and to present any evidence to the contrary. The issue of the Makahs’ treaty rights is properly before the court.
The situation is very different, however, as to the other tribes. Several tribes have “joined” in the Makahs’ request for determination and in the Makahs’ motions, and have made clear in their briefs and oral arguments that they would welcome a court determination that they, too, have treaty rights to fish for halibut. But no tribe other than the Makahs has filed a request for determination, or has specifically moved for a ruling seeking such relief. Nor has any other tribe made a timely and complete evidentiary showing comparable to that made, by the Makahs. In short, no other tribe has presented the issue to the court in a manner which might warrant the granting of relief on the pending motions.
The court should therefore review the Secretary’s determination as to the Ma-kahs’ treaty right to fish for halibut and should leave to another day any determination as to similar rights for other tribes.
The next issue relates to the applicable burden of proof. Many of the court’s past determinations of treaty fishing rights involved fisheries regulated by the State of Washington. Halibut fishing, by contrast, is regulated by federal authorities. The court’s task in passing upon treaty fishing rights is correspondingly different. Here, federal authorities have already made administrative determinations as to which tribes have treaty rights to fish for halibut. This court’s role is essentially one of reviewing the determinations of the administrative agency charged with regulation of the subject matter in question.
This distinction is important for several reasons. First, the determinations of the responsible agency are binding upon the parties unless and until there has been a timely application for review to a court with jurisdiction to hear it, and that court has countermanded the agency’s determination in some way. Thus, if the court declines (as here recommended) to make a summary adjudication as to the treaty rights of tribes other than the Makahs, the agency determination that other tribes have such treaty rights remains binding, and provides the basis for regulation of the fishery.
Secondly, while this court is not bound by the Secretary’s determination that the Makahs have treaty rights to fish for halibut, it must accord that determination great deference. The court may reach a contrary conclusion only if it is shown that the action of the agency was arbitrary, capricious, or otherwise contrary to law.
Applying that standard to this case, the court should conclude, first, that the record amply supports the Secretary’s determination that the Treaty of Neah Bay preserved the Makahs’ right to take halibut, as well as anadromous fish. The Ma-kahs have presented evidence which over*1227whelmingly establishes that they fished for halibut at treaty times, and that they would have understood the assurances in the treaty to cover halibut, as well as salmon. (See the exhibits A through CC, presented with the Makahs* response to an early motion to dismiss before Judge McGovern; and exhibits DD through DDD, filed May 6, 1991.) Those materials include, for example, a number of reports by Dr. Barbara Lane, upon whom the court has relied extensively over the history of this case. Dr. Lane describes the Makahs’ reliance on halibut fishing over many centuries prior to the time the treaties were signed.
The State of Washington has presented little or no evidence to the contrary. There is no basis whatever to conclude that the Secretary’s determination of the Makahs’ treaty right is arbitrary, capricious, or contrary to law in any respect.
The next issue is whether the treaty rights to fish for halibut are the same as the treaty rights to fish for salmon. More specifically, the issue is whether the Makahs are entitled to an opportunity to take 50% of the harvestable surplus of halibut in their usual and accustomed halibut fishing grounds, or whether some lower percentage applies. The State of Washington has presented no persuasive basis for applying a different rule for halibut than for salmon, and the court should rule accordingly.
Nevertheless, it is not possible to set a precise percentage at this time. A treaty tribe is entitled to the opportunity to take approximately 50% of the harvestable surplus of salmon which pass through its usual and accustomed fishing grounds, unless a lesser amount is sufficient to assure them a moderate living. State of Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 685, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979). The same rule applies to the treaty right to fish for halibut.
Washington has asserted that the Ma-kahs do not require as much as 50% of the available halibut to assure them a moderate living. Judge McGovern ruled that this is a proper issue for this case, and bifurcated it for discovery and trial following determination of the other issues. Accordingly, on these motions the court cannot make a final ruling as to the percentage to which the Makahs are entitled. The court can and should, however, direct the federal defendants to regulate the fishery based upon a 50% share for all tribes with treaty rights to fish for halibut, unless and until the court determines that a lesser percentage should apply. This is appropriate because Washington bears the burden of sustaining its contention that a lesser amount will assure a tribe a moderate living.
The next issue is the definition of the Makahs’ usual and accustomed grounds for halibut fishing. The Secretary of Commerce has determined the boundaries of those grounds. 50 C.F.R. § 301.19. Washington challenges that finding, asserting there is no evidence that the Makahs fished for halibut throughout the area described by the Secretary’s regulation. The Makahs have submitted evidence that they fished for halibut wherever they were available within the Makahs’ usual and accustomed salmon fishing grounds. Again, the court should find that the record adequately supports the determination of the Secretary, and that Washington presents no basis for the court to substitute its findings on the issue.
HAVE FEDERAL ALLOCATIONS VIOLATED THE MAKAHS’ TREATY RIGHTS?
Resolution of these issues brings the court to the first of the two major *1228areas of dispute between the Makahs and the federal defendants. The Makahs assert that the manner in which the Secretary of Commerce and the PFMC allocate among domestic fishers the available harvest in Area 2A violates the Makahs’ treaty rights. For the reasons discussed below, the court should rule that the Makahs are correct in this respect. But because the “moderate living” issue remains for determination, the court can award only limited relief at this time.
As described earlier, the Secretary through the PFMC has allocated each year a portion of the Total Available Catch in Area 2A (historically never more than 25%) to the Makahs and to the other tribes found to have treaty rights to fish for halibut. The bulk of the remainder is allocated to non-treaty commercial fishers. Treaty commercial fishers may harvest halibut only in the portion of Area 2A designated as Area 2A-1. Non-treaty commercial fishers may harvest halibut anywhere they choose within Area 2A.
This system of regulation produces the potential that non-treaty commercial fishers can take far more halibut from Area 2A-1 than the tribes, which have treaty rights to fish there. And in fact that, potential has consistently been the reality. In 1989 through 1992 inclusive, non-treaty commercial fishers have taken from Area 2A-1 a quantity of halibut which was approximately double the Secretary’s allocation to treaty commercial fishers.
This regulatory scheme therefore violates the treaty rights of the Makahs to fish for halibut.
In defense of this regulatory procedure, the Secretary relies upon a technical report prepared in 1991 for the IPHC, “Scientific Report No. 74.” A copy of this report appears as exhibit 3 to the Federal Defendants’ Response to Plaintiffs Motion for Partial Summary Judgment (docket #216). The importance of this report, according to the federal defendants, is that it provides technical, biological evidence that 40% of the exploitable biomass of Pacific halibut in Area 2A is found within Area 2A-1. Even assuming the Makahs are entitled to a 50% share of the halibut available for harvest at their usual and accustomed fishing grounds, the argument goes, they would only be entitled to an opportunity to harvest 20% of the Total Available Catch in Area 2A.
The court should find this argument totally unpersuasive. Although the Secretary relies upon Scientific Report No. 74 as a basis for justifying his regulatory scheme in retrospect, it is apparent that he has not relied upon it at all in determining any of the allocations. Indeed, the report proves too much. If we were to accept the Secretary’s argument, the treaty tribes would be entitled to only 20% of the halibut available in Area 2A. Yet the Secretary has allocated 25% in each of the past several years, including all years since Report No. 74 was prepared. Apparently even the Secretary was not persuaded. More significantly, the report has not had any effect upon the Secretary’s regulation of the non-treaty commercial fishers. Over recent years, approximately 70% of the harvest from Area 2A has been taken in Area 2A-1, with only small variations from year to year. Nothing in the Secretary’s allocations has forbidden this distribution of the harvest. This demonstrates that the Secretary did not rely upon Report No. 74 for any purpose.
Nor can the Secretary rely upon conservation of the halibut resource as a basis for the limit he has placed upon the allocation to treaty fishers. The evidence affirmatively shows that there has been no adverse effect on the resource, despite the fact that approximately 70% of the Area *12292A harvest has been taken in Area 2A-1 each year for several years.
In summary, therefore, the court should find that the Secretary’s past procedure for regulating the harvest of halibut violated the Makahs’ treaty rights, because the regulations placed limits on the treaty harvest in the Makahs’ usual and accustomed fishing grounds without placing similar limits on the non-treaty harvest in the same area.
The next issue is whether the Makahs are entitled to relief for the effects of the Secretary’s regulatory scheme in the years 1985 through 1992. Different considerations apply to different years.
In the years 1985 and 1986, the actual harvest of halibut by the Makahs fell far short of the quantities allocated to them by the Secretary. The court should therefore rule that the Makahs are entitled to no relief for those years. The Makahs contend that the “low” allocations discouraged them from developing their halibut fleet. But it is not clear how the level of the allocation could have inhibited the growth of the fleet in years where the allocation was far above the capacity to catch fish. The court should grant the motion of the federal defendants for partial summary judgment as to the request for relief as to the 1985 and 1986 regulations.
The Makahs do not request relief for the 1987 and 1988 regulations.
In 1989 through 1992, the Makahs harvested essentially their entire allocation. Until the court resolves the issue of “a moderate living,” however, it cannot determine whether the Makahs are entitled to any relief for those years. If the court finds that the Makahs are entitled to a full 50% share, they might well be entitled to relief for the denial of the opportunity to take that share during 1989 through 1992. But if the court sets a lower percentage, it is possible that the Makahs’ allocation during those years was adequate. Accordingly, the court should deny without prejudice all parties’ motions for summary judgment as to 1989 through 1992.
The claims as to the fishing season of 1993 present special problems. The Ma-kahs’ motions for a preliminary injunction sought prospective relief, directed toward the regulatory scheme to be applied to the 1993 season. But various delays, including the delays which have already occurred and will yet occur in resolution of the motions, have probably rendered the issue as to the 1993 season essentially moot. I recommend the court treat the 1993 season in the same manner as the 1989 through 1992 seasons.
PROSPECTIVE RELIEF
The remaining issue is whether the court should award prospective relief as to the manner in which the Secretary regulates halibut fishing in U.S. waters in 1994 and future years.
As discussed above, the Makahs’ motion for preliminary injunction sought relief as to the 1993 season. By the time the court makes a final ruling on these five motions, it will be too late to afford any effective relief as to that season.
In fairness to the parties, however, the court should address directly the issue of whether prospective relief is appropriate as to the manner of regulating the halibut fishery in 1994 and subsequent years. In other words, although the motion for in-junctive relief was addressed to the 1993 season, the court should rule on it as if it were addressed to the 1994 season and subsequent years.
For the reasons discussed above, the Secretary’s established system of regulating the halibut fishery does not protect the rights of the treaty tribes to harvest their *1230fair share of halibut. The Secretary has employed the same regulatory scheme for a number of years, and it is reasonable to assume that he will do so again in 1994 in the absence of action by the court.
This court has previously ruled, in other contexts, that the denial of treaty-protected fishing rights is an irreparable injury; that it cannot be properly compensated by an award of damages after the fact; and that it is the proper subject of preliminary injunctive relief.
The court should direct the Secretary to modify his regulatory scheme for 1994 and subsequent years. The Makahs urge the court to direct the Secretary to allocate to the treaty commercial fishers 35% of the harvestable halibut in Area 2A. Their rationale is that, historically, 70% of the Area 2A harvest has been taken in Area 2A-1, and the treaty fishers are entitled to half. The Secretary, while agreeing that the tribes are entitled to half, argues that what is to be divided is the available halibut biomass in Area 2A, and that the best available information, Scientific Report No. 74, sets that figure at 40% of the total Area 2A allocation.
The court should decline the Makahs’ invitation to substitute its conclusion for that of the Secretary as to the halibut biomass available in Area 2A-1. The court should, instead, follow the suggestion at oral argument by counsel for the federal defendants, and afford the Secretary the opportunity to fashion a new regulatory scheme, in accordance with general parameters provided by the court. The first of these parameters is that the regulatory scheme should protect rights of the Ma-kahs and of such other tribes which the Secretary has determined or will determine are entitled by treaty to fish for halibut. The Secretary’s list of tribes with treaty rights is subject to modification based upon later determinations by the court. Secondly, the Secretary should base his regulation upon the usual and accustomed halibut fishing grounds, as determined by the Secretary, unless and until the court modifies those determinations. Third, the allocations must afford treaty commercial fishers and non-treaty commercial fishers the opportunity to take equal quantities of halibut within the usual and accustomed fishing grounds of these tribes. This equal sharing principle is subject to adjustment if the court determines a lesser quantity is sufficient to assure a tribe a moderate living.
This obviously poses a very complex regulatory problem. There are twelve tribes involved, each with different usual and accustomed fishing grounds. The Secretary’s approach to this problem has been to define a single area which encompasses all of those fishing grounds, and then to make an overall allocation to the tribal fishers. While lacking mathematical precision, this is a reasonable approach to a complex problem. The evil in the Secretary’s past procedure, however, is that he did not limit the harvest of the non-treaty commercial fishers in Area 2A-1 in the same manner as he limited the harvest of the treaty commercial fishers. The lack of such limits has permitted the non-treaty commercial fishers to harvest, from the tribes’ usual and accustomed fishing grounds, double the quantity of halibut allocated to the tribes.
The Jamestown S’Klallam, Lower Elwha S’Klallam, Port Gamble S’Klallam and Skokomish Tribes request that any injunc-tive relief prescribe that a fixed percentage of the tribal allocation in Area 2A-1 can only be taken in the Puget Sound fishery, including the Strait of Juan de Fuca. Because only some of the tribes with halibut fishing rights can fish in those areas, this requested relief would, in effect, be an inter-tribal allocation of the treaty *1231share. All other parties, including the other tribes which have addressed the issue, oppose this request.
The court should decline to make such an inter-tribal allocation in this case. The division of the total treaty harvest among the tribes entitled to share in it has been the subject of extended negotiation by the tribes and consideration by the court in other, pending sub-proceedings. The court should not pre-empt the resolution of those issues by a piece-meal ruling on these motions.
SWIFTSURE AND 40 MILE BANKS
Swiftsure and 40 Mile Banks are two highly productive fishing grounds for halibut. Swiftsure Bank lies between the United States and Canada in the Strait of Juan de Fuca. 40 Mile Bank is west of the Strait. Prior to the signing of the Treaty of Neah Bay, the Makahs fished for halibut at both locations, as this court previously found. U.S. v. Washington, 384 F.Supp. 312, 364 (W.D.Wn.1974); and id., 626 F.Supp. 1405, 1467 (W.D.Wn.1985). The Makahs introduced evidence suggesting that the continued opportunity to fish for halibut in these two areas was important to the Makahs at the time the treaty was signed.
At that time, however, and for over a century thereafter, these two fishing grounds were not within the jurisdiction of any nation. The United States and Canada each asserted jurisdiction only within three miles of their respective coasts. These fishing grounds were more than three miles from either country and were therefore on the high seas. The Makahs had the same right to fish there as any fishers of any nationality. The United States had no authority to control who did and did not have access to these two fishing grounds.
In 1976, first Canada and then the United States declared a “fishery conservation zone” (“FCZ”) extending 200 miles from their coasts. In the Strait of Juan de Fuca, which was far narrower than 400 miles, the countries agreed that a line equidistant between the countries would define the respective FCZ of each. This line placed all of 40 Mile Bank, and all but a small part of Swiftsure Bank, within Canada’s FCZ.
Each country prohibited from its FCZ commercial fishers from the other country (the designation of the zone was later changed to “Exclusive Economic Zones,” or “EEZ”). In a Protocol signed by the United States and Canada in 1979, Canada agreed that sport fishers from the United States could fish for halibut at these two grounds, but the prohibition against commercial fishers continued. In these respects, there was no discrimination for or against treaty fishers.
The Makahs assert that the federal defendants were required to protect the Ma-kahs’ opportunity to fish in these two areas. This obligation arises, they argue, by virtue of the Treaty of Neah Bay, and also by reason of the trust responsibility of the United States to the treaty tribes. The federal defendants failed to make any effort to protect that fishing opportunity, the Makahs contend. Therefore, they ask the court to order the federal defendants:
(1) to attempt to secure, by negotiation or otherwise, an opportunity for treaty commercial fishers to resume fishing in these two areas;
(2) if that effort is unsuccessful, to “mitigate” the Makahs’ loss by providing some other remedy. The Makahs do not ask the court to specify the precise remedy at this time, but suggest that the court direct the federal defendants to negotiate with all parties and then propose a remedy. The *1232Makahs do indicate possible examples of such relief, e.g., awarding the Makahs a share of more than 50% in areas where they are permitted to fish, or permitting them to fish at “in lieu” sites, outside of their usual and accustomed fishing grounds.
The federal defendants respond that, as a matter of law, the Secretary of State does not have the duty or obligation alleged by the Makahs. They contend that the treaty rights of the Makahs cannot affect the authority of the Secretary of State to negotiate with Canada as to the respective EEZs of the two countries. They also contend that the U.S. Court of Appeals for the Ninth Circuit has ruled that the usual and accustomed fishing grounds of a tribe can exist only in waters within the jurisdiction of the United States. U.S. v. Washington, 730 F.2d 1314, 1316 (9th Cir.1984). Further, they contend that in any event federal officials did attempt to protect the Makahs’ opportunity to fish at these two sites. Finally, they contend that, even if the federal defendants breached some duty to the Ma-kahs, there is no authority to support the extraordinary forms of injunctive relief sought by the Makahs.
The State of Washington basically concurs with the position of the federal defendants on this issue. The State of Oregon contends that the remedies sought by the Makahs are inappropriate for a variety of reasons. One of those reasons is that the remedies would have drastic and unfair effects on innocent third parties; e.g., if the Makahs were awarded “in lieu” fishing sites in Oregon, existing fishers in that' state would be unfairly penalized for the failures of federal officials.
All three parties move for partial summary judgment on this issue.
The court should sustain the contention of the federal defendants that, as a matter of law, they were not obliged to attempt to secure fishing rights for the Makahs in waters which were never subject to the jurisdiction of the United States.
First, as contended by the federal defendants, the Ninth Circuit did note with approval a ruling by the district court that the “usual and accustomed fishing grounds” of a tribe were limited to areas within the FCZ. U.S. v. Washington, 730 F.2d 1314, 1316 (9th Cir.1984). Therefore, Swiftsure and 40 Mile Banks were never within the Makahs’ “usual and accustomed fishing grounds” for purposes of treaty protections, despite the fact that Makah fishers in fact fished for halibut at those locations.
Furthermore, none of the authorities cited by the Makahs impose an obligation on the United states, in the conduct of foreign affairs, to secure the opportunity for a treaty tribe to fish or hunt in territory outside the jurisdiction of the United States.
The court should therefore grant the federal defendants’ motion for partial summary judgment on this issue.
In light of this ruling, the court should not reach the issue of what form of relief is appropriate for the breach of any duty by the federal defendants.
PROPOSED ORDER
Accompanying this Report and Recommendation is a proposed order which sets forth the rulings here recommended.
*1233[[Image here]]
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. A tribe must also show that it 'descended from a treaty signatory.' Washington, 641 F.2d at 1371. In this instance, however, the district court previously determined that the Suquamish and Duwamish were treaty signatories and that the contemporary Suquamish descended from the treaty time Suquamish.
. According to the State of Washington, the size of the reservation was further reduced by two other executive orders issued in 1908 and 1909.
. However, the United States Supreme Court has cautioned that language about diminishment and the public domain should not necessarily be taken literally. In Solem v. Bartlett, 465 U.S. 463, 474-75, 104 S.Ct. 1161, 79 L.Ed.2d 443 (1984), the Court found that the Act in question only opened the Cheyenne River Sioux reservation to settlement, but did not diminish it. In reaching this conclusion, the Court had to contend with some language in the Act referring to unopened territories as "within the respective reservations thus diminished.” The Act also permitted tribal members to harvest timber on certain parts of the opened lands for "only so long as the lands remain part of the public domain.” The Court held that these isolated phrases were not dispositive; when balanced against the other evidence leading to the contrary result, they could not "carry the burden of establishing an express congressional purpose to diminish.” Id. at 475, 104 S.Ct. 1161. In a footnote to this discussion, the Court also noted that there is considerable doubt about what Congress meant in using those phrases: in 1908, "diminished” was not a term of art in Indian law; and "even without diminishment, unallotted opened lands could be conceived of as being in the ‘public domain' inasmuch as they were available for settlement." Id. at 475 n. 17, 104 S.Ct. 1161.
. As discussed above, allotment could have occurred without returning reservation lands to the public domain if the Chehalis Indian Reservation had been established by treaty. The court notes that, according to the testimony of Dr. Barbara Lane, the Superintendent of Indian Affairs requested permission in July of 1862 to enter into a treaty with the Chehal-is Indians, who were in turn anxious to secure reservation status for at least a portion of the lands on which they had traditionally lived. But instead of signing a treaty as requested by both the Superintendent and the Chehalis Indians, the federal government instead proceeded by executive order to establish the Chehalis Indian Reservation in 1864. (Statement of Dr. Barbara Lane as Direct Testimony on Behalf of Chehalis Tribe, p. 38) Thus, the fact that the reservation was not established by treaty appears to be a historical accident contradictory to the wishes of the Chehalis Indians. Although the court does not rest its decision on this point, it seems more than a little unfair to conclude that the Chehalis Indian Reservation was diminished as the result of an order necessitated by the federal government's own decision to ignore the Indians’ original request for treaty status.
. The State of Washington also mentions in passing executive orders issued in 1908 and 1909 which allegedly further diminished the Chehalis Indian Reservation by returning reservation lands to the public domain. In the absence of any further information about the reasons for these orders, the court reaches the same conclusion that they did not result in any diminishment of the reservation.
. The Court wishes to note at the outset that its resolution of this particular issue is limited solely to whether the treaties provide for Tribal shellfishing rights. This order is not intended to resolve remaining issues such as allocation. This order is limited to the issue of whether shellfish can be regarded as “fish” under the treaties at issue.
. Stevens was the Governor of Washington during the time when the treaties were negotiated.
. See Romero v. Kitsap County, 931 F.2d 624, 628 (9th Cir.1991) (Finding that a separate judicial determination was required as to whether the Stevens treaties encompassed shellfishing rights because the treaties themselves do not specifically delineate the Indians’ right to take shellfish in such a way that the nature and scope of that right is readily apparent and that treaty rights to shellfish were not clearly established by virtue of the treaty language alone. Such a determination was beyond the scope of the Romero proceedings.)
. The Treaty of Point Elliot is one of the 1854 Stevens Treaties at issue in the present case. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217034/ | MEMORANDUM**
Napoleon T. Annan-Yartey appeals pro se the district court’s judgment as a matter of law following a jury verdict in favor of defendants in his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s grant of judgment as a matter of law, LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir.2000), and we affirm.
The district court properly granted defendants judgment as a matter of law because the police officers could have reasonably believed that their conduct in detaining Annan-Yartey was lawful where they had probable cause to believe that Annan-Yartey broke the law. See Marks v. Clarke, 102 F.3d 1012, 1026 (9th Cir.1996).
Similarly, the district court did not err in finding that Annan-Yartey’s detention for almost one hour was reasonable given the fact that the police had to issue two citations to Annan-Yartey, Annan-Yartey’s own actions delayed the investigation, and the police had to verify the bicycle’s serial number with a dispatcher. See United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (holding that determination of whether a detention is too long to be justified as an investigative stop must take into consideration whether the police diligently pursued their investigation during the time it was necessary to detain defendant).
*415Annan-Yartey’s remaining contentions lack merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217035/ | MEMORANDUM**
Cleveland J. Daniels, Jr., appeals pro se the district court’s summary judgment in his consolidated actions alleging race and disability discrimination. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219-20 (9th Cir.1998), and affirm.
Because Daniels failed to present evidence sufficient to show that defendants’ proffered reasons for removing him from the dispatch list were pretextual, the district court properly granted summary judgment on his race discrimination claims. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062-63 (9th Cir.2002) (stating standard for disparate treatment claim).
Because Daniels’s evidence did not show that he was substantially limited in any major life activity, the district court properly granted summary judgment on his disability discrimination claim. See Thompson v. Holy Family Hosp., 121 F.3d 537, 539-40 (9th Cir.1997) (per curiam).
Because Daniels failed to show that allowing additional discovery would have precluded summary judgment, the district court did not abuse its discretion by denying Daniels’s request for additional discovery. See Fed.R.Civ.P. 56(f); see Qualls v. Blue Cross of California, Inc., 22 F.3d 839, 844 (9th Cir.1994).
Daniels’s conclusory allegations that the district court’s decision was motivated by bias and malice are unavailing. See Yagman v. Republic Ins., 987 F.2d 622, 626-27 *416(9th Cir.1993) (concluding that speculative assertions of invidious motive are insufficient to show judicial bias).
Daniels’s remaining contentions lack merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217037/ | MEMORANDUM**
Dennis Loy Carter appeals pro se the judgment of the district court dismissing his action for failure to comply with a court order, and the order denying his post-judgment motions and notices. Because Carter filed his post-judgment motion more than 10 days after the entry of judgment, and filed his notice of appeal more than 30 days after entry of judgment, we have jurisdiction only over the post-judgment order. See Fed. R.App. P. 4(a)(4)(A)(vi); Am. Ironworks & Erectors, Inc. v. N. Am. Const. Corp., 248 F.3d 892, *418898 (9th Cir.2001). We review for an abuse of discretion, id. at 899, and affirm.
To the extent Carter’s post-judgment motions and notices were intended to further prosecute his action, the district court properly denied them as moot because the action had already been dismissed. To the extent Carter sought review of the district court’s judgment of dismissal pursuant to Fed.R.Civ.P. 60(b), the district court properly denied the motions because they failed to address his non-compliance with the court order that formed the basis for dismissal. See id.
Because Carter filed his unserved amended complaint after the court-ordered deadline for filing an opposition to defendants’ motions to dismiss, the district court properly declined to consider the amended complaint. See Brydges v. Lewis, 18 F.3d 651, 652 (9th Cir.1994) (affirming grant of unopposed motion for summary judgment where plaintiff had previously been warned of consequence of failure to respond).
We reject Carter’s contention that once he filed the amended complaint his case started again “on a clean slate.”
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217049/ | MEMORANDUM **
David M. Morissette appeals the district court’s revocation of his supervised release and its imposition of 9 months’ imprisonment to be followed by a subsequent term of supervised release, following Morissette’s admitting to a number of violations of the conditions of his supervised release. Morissette’s attorney has filed a brief and a motion to withdraw as counsel of record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Morissette has not filed a pro se supplemental brief.
Our review of the Anders brief and our independent review of the record under Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), disclose no issues requiring further review. Accordingly, counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224307/ | MEMORANDUM OPINION AND ORDER ON DEFENSE COUNSELS’ CJA VOUCHERS1
WILLIAM P. JOHNSON, District Judge.
THIS MATTER comes before the Court on the requests for attorneys’ fees submitted by defense counsel Jody Neal-Post and Judith Rosenstein pursuant to the Criminal Justice Act, 18 U.S.C.A. § 3006A, (“CJA”). From October 15, 2012 through March 11, 2013 when the ease was concluded, Attorney Rosenstein seeks CJA compensation in the total amount of $19,665.29 and Attorney Neal-Post seeks CJA compensation in the total amount of $31,425.86. On September 17, 2013, the Court conducted a hearing on the attorney fee requests pursuant to the Sealed Ex Parte Order and Notice of Hearing (doc. 42) which identified the following five areas of inquiry:
1. Whether this case was truly complex or became complex because of the actions of defense counsel.
2. Whether the time devoted to this case by Defense Attorneys Rosenstein and Neal-Post was excessive.
3. Whether the number of pleadings filed by Attorneys Rosenstein and Neal-Post was excessive.
4. Whether Attorneys Rosenstein and Neal-Post acted professionally towards court officials as required by Local Rule 57.2 and the Creed of Professionalism of the New Mexico Bench and Bar.
5. Whether pro bono Attorney Jeff Rein should be receiving CJA compensation based on what the Court perceived to be Attorney Rein assuming a lead counsel role particularly at the plea and sentencing hearing for the Defendant.
Going in reverse order, after hearing remarks from Attorney Rein who was part of the defense team but was working on a pro bono basis, I am satisfied that all three attorneys who represented the Defendant in connection with the sentencing issues *1237had different roles in terms of how they represented the Defendant and so I have no additional concerns on item number 5. While there is no question that Attorney Rein played a significant role in representing the Defendant, since he undertook this representation on a pro bono basis, I am not factoring his time into the analysis on defense counsel Rosenstein’s and Neal-Post’s CJA applications.
As for the issue raised in item number 4 concerning professionalism, I have no concerns on this issue regarding Attorney Neal-Post’s conduct in this case. However, I had previously expressed my concerns about what I considered to be a lack of professionalism on the part of Attorney Rosenstein in certain instances when she interacted with certain members of the U.S. Probation Office and members of my staff. Attorney Rosenstein apologized both in writing and orally at the hearing. Additionally, Attorney Rosenstein represented that she was retiring and this case was her last CJA case so I see no need to take any further action on this issue.
As for item number 1 concerning the complex nature of the case, I raised the question in the notice of whether the case was complex because of the legal and factual issues in dispute or did the case become complex because of the actions taken by defense counsel. Attorney Neal-Post made an excellent oral presentation at the hearing and I do agree that there were some unique circumstances in this case that weigh in favor of counsel’s suggestion that the case was legally and factually complex. While I am not convinced that the case was as complex as defense counsel suggest, my concerns are best addressed in items numbered 2 and 3 in the Notice of Hearing which I have combined into the single issue of whether the total requested CJA compensation by both Attorneys Rosenstein and Neal-Post in the combined total amount of $51,091.15 is excessive. As explained in further detail below, I find that portions of the requested amounts are excessive due in large part to unnecessary duplication of efforts by Attorneys Rosenstein and Neal-Post.
Background
Defendant Patricia Josephine Green is a medical doctor licensed to practice medicine in New Mexico. The allegations which gave rise to the Indictment (doc. 2) and Superseding Indictment (doc. 73) occurred in Roosevelt County. On February 10, 2009, Defendant was indicted on a single count of distribution of methadone outside the course of professional practice and not for a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). At the time, she was represented by retained counsel, attorneys Gary Mitchell and Randall Harris. Additionally, when the Defendant was indicted, her case was randomly assigned to Chief U.S. District Judge M. Christina Armijo and she served as the presiding judge in this case until she recused herself in September of 2012 and the case was then randomly assigned to me.
On July 28, 2010, the case proceeded to trial by jury on the single count in the Indictment. The jury was unable to reach a verdict and so Judge Armijo declared a mistrial by order dated July 30, 2010 (doc. 57). Subsequently, an attempt was made to resolve the case but the parties could not come to an agreement so Attorney Gary Mitchell withdrew from representing Defendant.
On November 10, 2010, the grand jury returned the Superseding Indictment which added an additional charge, as count 1, of distribution of methadone outside the course of professional practice and not for a legitimate medical purpose resulting in the death of a former patient, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). *1238Count 2 of the Superseding Indictment consisted of the original charge on which the jury in the first trial deadlocked. Count 1 of the Superseding Indictment, or what has been commonly referred to as the “death count,” was the more serious charge that carried a twenty year statutory minimum sentence upon conviction. See United States v. MacKay, 715 F.3d 807, 844-46 (10th Cir.2013).
Attorney Randall Harris continued to represent Defendant although the record reflects that he did file a motion to withdraw (doc. 107). However, there was a court order entered stating that the motion to withdraw was deemed to have been withdrawn (doc. 108). In any event, Defendant proceeded to trial a second time with Randall Harris as lead defense counsel assisted by Attorney Kirk Chavez. This time the jury reached a unanimous verdict: not guilty on count 1 (the death count) and guilty on count 2. While a Judgment of Acquittal was entered on the death count (doc. 157), Defendant was remanded into custody based on the guilty verdict as to Count 2 (doc. 137). Defendant ended up serving almost nine months in detention and then Judge Armijo authorized Defendant to be released on new conditions of release (doc. 231).
After Defendant was remanded into custody, Attorneys Rosenstein and Neal-Post entered their appearance on behalf of Defendant (doc. 161) and Attorneys Harris and Chavez withdrew. Attorneys Rosen-stein and Neal-Post promptly filed a Motion for New Trial (doc. 172) on the theory that Defendant’s Sixth Amendment right to counsel had been violated because her former counsel Randall Harris was ineffective based on what was alleged to be a conflict of interest. Specifically, the Government’s case agent is the husband of an attorney who practiced law in the same firm as defense attorney Randall Harris. Thus, under Defendant’s theory, Randall Harris had a conflict of interest such that he was ineffective, thereby violating Defendant’s Sixth Amendment right to effective, conflict-free counsel. There were several obstacles in the way of Defendant in terms of being able to prevail on her motion for new trial. First, the record is clear that the relationship between the case agent and the attorney working in Randall Harris’ office was disclosed to the Defendant. Second, this conflict issue was brought to the attention of Judge Armijo and she determined, after hearing from Defendant, that Randall Harris was Defendant’s counsel of choice. While Defendant argued in her motion for new trial that her waiver was not informed, she nevertheless was confronted with the problematic task of establishing ineffective assistance of counsel that was prejudicial to her when Randall Harris was successful in obtaining a not guilty verdict on the death count which, upon conviction, would have required Defendant to serve a statutory minimum twenty year sentence. Stated another way, Defendant was in the difficult position of arguing Randall Harris was ineffective as counsel with the guilty verdict on Count 2 when he was obviously extremely effective as defense counsel with the not guilty verdict on Count 1.
By ex parte letter dated February 17, 2012 (doc. 233), Attorney Rosenstein wrote to Judge Armijo requesting CJA appointment of Attorneys Rosenstein and Neal-Post as counsel for Defendant based on Defendant’s indigent status. Attorney Rosenstein disclosed that Defendant had paid defense counsel $15,000 ($5,000 to Ms. Rosenstein, $8,000 to Ms. Neal-Post and $2,000 to a paralegal) but with Defendant’s incarceration, she was out of funds and the scope of representation had become much more involved than what was originally anticipated when defense counsel agreed to represent Defendant. Judge *1239Armijo responded by denying the request for Attorneys Rosenstein and Neal-Post to be appointed CJA counsel; however, Judge Armijo did appoint Assistant Federal Public Defender Benjamin Gonzales as counsel for Defendant. Through statements made at different hearings since I was assigned this case, defense counsel attribute some kind of improper conduct on the part of Judge Armijo in denying their request to be appointed CJA counsel and in specifically appointing Mr. Gonzales to represent Defendant. As I stated at the hearing and as I restate in this opinion, such notions are totally unfounded. I am in complete agreement with Judge Ar-mijo’s initial decision to decline defense counsels’ request to be appointed as CJA counsel. Like Judge Armijo, I rarely allow privately retained counsel to become CJA counsel when a defendant can no longer pay his or her attorney bills or when the defense attorney has exhausted the retainer. Otherwise, privately retained attorneys will burn through retainers and then seek CJA compensation to finish their cases. Such a practice would further stretch limited CJA resources and besides, privately retained lawyers should not receive a financial bailout from the CJA fund when they make bad business decisions in terms of grossly underestimating the time involved in representing particular clients. Moreover, the CJA was enacted by Congress not for the purpose of compensating attorneys, but “... to insure effective representation for those charged with a crime or confronted with the risk or being deprived of constitutional rights in ancillary proceedings.” United States v. Gonzales, 150 F.3d 1246, 1263 (10th Cir.1998).
I also take strong exception to defense counsels’ suggestion that Judge Armijo acted improperly in specifically appointing Mr. Gonzales from the Federal Defender’s office ' to represent the Defendant. In cases where there have been multiple defense attorneys representing the same defendant and there is a need to bring the case to resolution, like Judge Armijo I too have appointed specific attorneys to represent specific defendants and the attorneys I have appointed in these situations were selected because they were exceptionally well qualified to represent the specific defendant or defendants who needed representation. Notwithstanding Mr. Gonzales’ exceptional qualifications as a criminal defense lawyer, Defendant wanted Attorneys Rosenstein, Neal-Post and Rein to continue to represent her which was confirmed in the pleading entitled “Dr. Green’s Response in Opposition to the Assistant Federal Defender’s Motion for Hearing Regarding Representation ...” wherein defense counsel stated: “Counsel Rosenstein, Neal-Post and Rein, are the Defendant’s counsel of choice, who are ‘willing to represent the defendant even though she is without funds’ to pay them.” (Doc. 241 at p. 6).
When I became the presiding judge in this case, I decided to take defense counsel at their word and allow them to continue to represent Defendant even though she was without funds to pay them. However, I reconsidered my decision and granted the request of Attorneys Rosenstein and Neal-Post to be appointed CJA counsel with October 15, 2012 as the effective date of the CJA appointment. Defense counsel were advised that I would not entertain any requests for compensation prior to the October 15, 2012 CJA effective date. My reasons for not allowing any CJA compensation prior to October 15, 2012 are the same reasons discussed above in connection with Judge Armijo’s initial denial of defense counsels’ request to be appointed CJA counsel.
*1240Additionally, considering that I had inherited a case where the Defendant had gone to trial on two separate occasions before a different presiding judge and where there was a need to bring the case to final resolution, I reconsidered and appointed Attorneys Rosenstein and Neal-Post as CJA counsel for reasons that were best articulated in Ms. Rosenstein’s February 17, 2012 letter (doc. 238):
Consequently Ms. Neal-Post and I are respectfully requesting CJA appointment to Dr. Green’s case, as research and writing specialist and lead counsel respectively. We know the case factually and legally, have established relationships with the defendant, the parties and most potential witnesses for the upcoming evidentiary hearing on the New Trial Motion. Said hearing will entail the examination and cross examination of numerous witnesses, including several attorneys. The most cost effective and constitutionally adequate representation would be provided by our appointment as co-counsel henceforth, due to the complexity of the issues and pleadings and the unique procedural case posture.
Hindsight being 20/20, I am in general agreement with all of the quoted statement except for the assertion that having both Attorneys Rosenstein and Neal-Post as CJA counsel would be a cost effective way to resolve the case. It was not and that was due in large part to what I consider to be unnecessary duplication of work by Attorneys Rosenstein and Neal-Post which resulted in excessive billing and excessive hours spent representing the Defendant. I never had to rule on whether Defendant’s Sixth Amendment right to effective, conflict-free counsel was violated because the parties by agreement appeared before retired U.S. District Judge Bruce Black and hammered out a plea agreement whereby Defendant’s felony conviction on Count 2 was vacated and she then pled guilty to a misdemeanor and received a time served sentence with one year of unsupervised probation.
Ms. Rosenstein initially requested CJA compensation for 5.2 hours of in court services, 151.7 hours of out of court services, $124.28 for travel expenses, and $312.25 for other expenses for a total request of $20,049.03. A court financial specialist reviewed Ms. Rosenstein’s request and removed any compensation specifically excluded under CJA and corrected any mathematical errors. This left Ms. Rosen-stein’s CJA request for 5.2 hours of in court services, 148.6 hours of out of court services, $128.04 for travel expenses, and $312.25 for other expenses for a total request of $19,665.29.
Ms. Neal-Post requested CJA compensation for 3.6 hours of in court services, 163.4 hours of out of court services and $382.39 for travel expenses for a total request of $20,425.00. A court financial specialist reviewed Ms. Neal-Post’s request and removed any compensation specifically excluded under CJA and corrected any mathematical errors. This left Ms. Neal-Post’s CJA request for 5.2 hours of in court services, 243.7 hours of out of court services and $313.36 for travel expenses for a total request of $31,425.86.
Discussion
I. Legal Standard
The CJA authorizes compensation for time “reasonably expended” and expenses “reasonably incurred.” 18 U.S.C. § 3006A(d)(l). Attorney time actually expended does not necessarily equate to attorney time reasonably expended. Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir.1983) disapproved on other grounds by Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987). Moreover, in determining the total amount of *1241reasonable time and expense, it is necessary to keep in mind that appointments under the CJA “are to protect the rights of the indigent accused, and they are neither to be sought nor made for the purpose of providing income to attorneys.” United States v. Self, 818 F.Supp. 1442, 1446 (D.Utah 1992). Indeed, acceptance of a CJA appointment is equivalent to agreeing to perform a public service. Id. See also United States v. Cook, 628 F.Supp. 38, 41 (D.Colo.1985) (citations omitted).
“Presence of multiple counsel at hearings and court proceedings often is duplicative and unnecessary.” See Self, 818 F.Supp. at 1445. “[I]f three attorneys are present at a hearing when one would suffice, compensation should be denied for the excess time.’ ... The more lawyers representing a side of the litigation, the greater the likelihood will be for duplication of services.” Ramos, 713 F.2d at 554 (citations omitted). Excessive review of documents, court pleadings and the work of other counsel is indicative of a lack of coordination among counsel or an unnecessary duplication of effort for which CJA attorneys ought not be compensated. Self, 818 F.Supp. at 1445.
II. Attorney’s Fees Not Allowed By The Court:
A. Motion to Correct the Record Pursuant to Fed.R.Crim.P. 36 (Doc. No. 371)
Document number 369 in this case was the order for the parties to attend a mediation or settlement conference before Judge Black. The parties had communicated their desire to try to mediate a resolution of this case and agreed to Judge Black serving as the mediator. While on a plane returning to Albuquerque, I hand wrote an order for the mediation conference and when the order was typed, Attorney Neal-Post’s name was incorrectly typed as “Jay Post Neal” instead of Jody Neal-Post. When I proofread the order, the typographical error was not caught before the order was electronically filed. Since the order was filed under seal, it was not accessible as a public document so counsel of record were the only persons who received a copy of this order. Defense counsel contacted Court staff by email and by telephone requesting the order be redone and refiled to correct the error. When defense counsel learned that I was not going to waste time and resources correcting an insignificant typographical error in a sealed order, defense counsel proceeded to file as a public document the pleading entitled “Dr. Green’s Motion to Correct Record Pursuant to Fed.R.Crim.P. 36” (doc. 371). In their motion, Ms. Rosenstein and Ms. Neal-Post made a number of assertions regarding the importance of an accurate public record of criminal proceedings in spite of the fact that the error in Ms. Neal-Post’s name occurred in a sealed order. Defense counsels’ argument that the accuracy of court pleadings is of utmost importance rings all the more hollow considering that defense counsel themselves made a typographical error concerning the docket number of a previously filed document in the very pleading they had filed demanding that I change the incorrect spelling of Ms. Neal-Post’s name. Further, Ms. Neal-Post conceded at the hearing that anyone involved in the case who needed to rely on the sealed order would have been able to discern who were the counsel of record in the case.
I made my opinion on Defendant’s Motion to Correct known during the hearing held on September 17, 2013. As I stated at the hearing in no uncertain terms, this motion was petty and I was not the least bit interested in wasting time and staff resources correcting what was a simple *1242and insignificant typographical error in a sealed order that went to no one other than counsel of record. Now, defense counsel seek U.S. taxpayer dollars in the form of CJA compensation for the preparation and filing of this frivolous motion. I have no difficulty in finding that the time billed by Attorneys Rosenstein and Neal-Post on this motion to correct the record was not time reasonably expended in protecting the rights of the indigent Defendant. Moreover, at a time when federal public defenders, probation officers and court employees are facing unpaid furloughs and/or layoffs and CJA hourly rates are being reduced nationwide, I refuse to waste CJA funds by compensating attorneys for frivolous use of time.2 Accordingly, the following attorney billing entries are disallowed:
Ms. Neal-Post
Date_Description_Time
01/14/2013 T/C regarding errors Doc 369 and how to correct_.3
01/15/2013 Notice to co-counsel that court minutes are wrong_
01/15/2013 Review of co-counsel requests to court for corrections of .1 _names in official documents_
01/16/2013 Court response-will not correct counsel’s names or its other .3 ,_errors; response to court/ discussion w/ Rosenstein_
01/17/2013 Request to USA for position on motion to correct and notice .1 _that the court. NOT defense, is responding ex parte_
01/17/2013 Drafting mot to correct record & filing_1.8
01/17/2013 AUSA Ganjei email response that gov doesn’t care if record .1 is accurate and takes no position
TOTAL: 2.8 hrs.
Ms. Rosenstein
Date_Description_Time
01/14/2013 Tel conf with JNP re errors in Doc 369 and how to fix_.3
01/15/2013 e-mail discussion with .3 co-counsel about errors in Doe 370 and how to deal with _same_
01/15/2013 e-mail CRD regarding errors in documents_.1_
01/16/2013 Review CRD response to errors in Docs-forward to co- .1 _counsel_
01/16/2013 TC CRD re: errors and need to correct same in official docs_.1
01/17/2013 TC CRD re: record errors-told to file motion advise .2 _co-counsel of need to file motion_
01/17/2013 Review/edit motion to correct record_.2
01/17/2013 Review e-mail from JNP to USA re: correction of record_.1
01/17/2013 Review USA e-mail re position on not to correct record.1
TOTAL: 1.5 hrs.
B. Grievance with the Court
I note that Ms. Neal-Post billed several hours to discuss with co-counsel her dissatisfaction with me as the presid*1243ing judge in this case. While Ms. Neal-Post is certainly entitled to express her opinion about me or any other judge of this Court, I do not consider such time as reasonably expended protecting the rights of the indigent Defendant. Accordingly, I am disallowing compensation for the following time entries:
Date_Description_Time
12/06/20123 T/C Rosenstein on mot to compel and mot to recuse AUSA, .8 court’s continuing irritation with defense and apparent protection of government; how to present/preserve under _circumstances_
01/09/20134 Discussion w/ co-counsel on court bias; authorities on .5 denial does not equate to frivolousness; inability to make a _record_
01/15/20135 Review of preservation materials for whether we should .3 bother writing reply when they aren’t being read/is current _preservation sufficient?_
01/17/2013 Conference w/ Rein on targeting counsel as pro bono and .4 potential for exclusion from evidentiary hearing based upon Order at 369 n. 1 and order on complexity Doc 363-“Rein _issue” under advisement or the like. . ._
01/17/2013 Call to access to justice board of state bar on singling out .2 of pro bono counsel and interference with counsel Richard _Stinello and Tina Sibbett_
01/17/2013 LEXIS on pro bono counsel; pulling Caplin and Drysdale .5 _v. United States. 491 U.S. 617, 624-25 (U.S.1989)_
01/17/2013 LEXIS on deprivation of counsel Rein_.8
02/14/20136 T/C with Rosenstein re court mess; loss of discovery .4 hearing. Status conference on WHAT?; arrangement to be together as required by court order; where; how
TOTAL: 3.9 hrs.
Ms. Rosenstein’s request will also be deducted 2 hours for these conversations with Ms. Neal-Post regarding her disagreement with how I ruled on certain matters.
At this point, Ms. Rosenstein’s request will be deducted as outlined above by 3.5 hours. Ms. Rosenstein’s request now stands at 5.2 hours of in court services, 145.1 hours of out of court services, $128.04 for travel expenses, and $312.25 for other expenses for a total amount of $19,227.79.
At this point, for the reasons discussed previously, Ms. Neal-Post’s request will be deducted by 6.7 out of court hours. Ms. Neal-Post’s request now stands at 5.2 hours of in court services, 237 hours of out of court services and $313.36 for travel expenses for a total request of $29,939.36.
C. Further Adjustment to Requested Fees
Finally, with almost twelve years experience as a district judge of this Court and having reviewed countless numbers of CJA vouchers by many CJA attorneys on a *1244wide variety of cases, I find that further reduction of Defense counsels’ requested fees is appropriate. In allowing both counsel to be appointed to represent Defendant in this case under the CJA, my understanding based on defense counsels’ representations was that one attorney would be doing the research and writing while the other would be handling the litigation. However, this case was not a capital case nor was it a case where a defendant is accused of selling classified nuclear weapons information to a foreign government. This was a case where the Defendant, having been found not guilty on the death count but guilty on the lesser count,, was confronting a sentencing guideline offense level of 16, criminal history category I, which results in an advisory guideline sentencing range of 21 to 27 months. Of course this advisory guideline sentencing range does not take into account potential objections to the guideline calculations nor does it take into account potential departure and/or variance issues. With that being said, I do not in any way want to minimize the impact on the Defendant upon learning her sentencing guideline exposure and I recognize that as a licensed physician, had the Defendant been sentenced based on a felony conviction, she would likely lose her license to practice medicine. What I am saying is that considering the guilty verdict on Count 2 and the potential sentencing exposure of Defendant, one CJA attorney or one assistant Federal Defender would normally represent a defendant under similar circumstances even if there were comparable eon-flict issues present like the ones in the instant case. I granted both counsel’s request to represent Defendant under the CJA because I was persuaded by counsel’s entreaty quoted above that Attorneys Ro-senstein’s and Neal-Post’s collective knowledge of the case would be the most expeditious and cost effective way to proceed.
As a district judge charged with the task of approving CJA requests, I have discretion to calculate a reasonable number of hours expended by counsel in this case. See United States v. Adkinson, 360 F.3d 1257, 1259 (11th Cir.2004) (CJA fee awards subject to limitations in Equal Access to Justice Act, § 2412(d)(2)(A)); United States v. Claro, 579 F.3d 452 (5th Cir.2009) (district court retains discretion to reduce amount of hours to amount that is reasonable).
As noted above, I was under the impression that Ms. Neal-Post would do the writing and research and Ms. Rosen-stein would handle the court appearances. However, both attorneys billed for attending hearings and for writing and research.7 I agreed to appointing two separate attorneys because I believed that these attorneys would fulfill two different roles. While I recognize that in some instances counsel needed to coordinate even though they were working on different parts of the case, counsel defeated the purpose of having a lead counsel and a writing and research counsel by having each attorney bill for doing both types of work, and in some instances the exact same work.8
*1245In addition to having counsel bill for fulfilling the same role, counsel also billed for completing the exact same task.9 Also, counsel billed for excessive review of each other’s work.10 For all these reasons, I find that the overall amount billed in this matter is excessive. Therefore, I am farther reducing both counsel’s fee requests by 25 percent, allowing Ms. Rosenstein a fee award of $14,420.84 (reducing the fee further by $4,806.95), and allowing Ms. Neal-Post a fee award of $22,545.67 (reducing the fee further by $7,484.89). I find that these amounts adequately and reasonably compensate counsel for representing the Defendant while protecting her rights as an indigent defendant awaiting sentencing in a federal criminal case.
IT IS THEREFORE ORDERED that Ms. Rosenstein will be compensated for a total amount of $14,420.84; and Ms. Neal-Post will be compensated a total amount of $22,5445.67. The Court finds that these amounts adequately and reasonably compensate counsel for representing the Defendant while protecting her rights as an indigent defendant awaiting sentencing in a federal criminal case.
IT IS FURTHER ORDERED that the Clerk of the Court prepare revised CJA invoices for Attorneys Rosenstein and Neal-Post consistent with the amounts herein approved.
. This Memorandum Opinion and Order was initially filed ex parte and under seal (doc. 404) because the CJA vouchers were submitted ex parte and under seal. However, by order filed as doc. 409, the Sealed Ex parte Memorandum Opinion and Order was withdrawn and this Memorandum Opinion and Order was filed as a public document.
. I note that even if the Motion to Correct had been warranted, the amount of time devoted to correcting the error in the court order was excessive.
. Ms. Rosenstein also has an entry for this telephone conference.
. Ms. Rosenstein also has an entry for this conference.
. Ms. Rosenstein also has an entry for this conversation.
. Ms. Rosenstein also has an entry for this telephone conference.
. For example, Ms. Neal-Post billed to attend hearings, as well as to review the minutes of each hearing and to discuss each hearing with Ms. Rosenstein. Similarly, Ms. Rosen-stein billed to review case law for motions that Ms. Neal-Post researched and wrote, as well as to review and edit the motions themselves.
. On February 10, 2013, both attorneys billed to review Rinaldi, presumably because of its relevance to Defendant's argument regarding her conviction even though Ms. Neal-Post was in charge of research and writing and would have been responsible for actually drafting a motion based upon this case. Further, Ms. Neal-Post billed for drafting an e*1245mail to Ms. Rosenstein regarding Rinaldi’s effect on the case, Ms. Rosenstein billed to read that e-mail, and both attorneys billed for a telephone conference with each other discussing this case. This is just one example of how counsel essentially charged for doing the same work. It also an example of how counsel billed an excessive amount of time to resolve this matter.
. On November 26, 2013, both attorneys billed to coordinate a videotaping of Mr. Harris’ with the investigator via e-mail, even though it appears both Ms. Rosenstein and Ms. Neal-Post were simply reading the exact same e-mail from the investigator. Further, counsel also billed for a conference with each other regarding the e-mail with the investigator. This is just one example of when counsel completed the same task when it was not necessary for them to do so.
. For instance, on February 26 and 27, 2013, Ms. Rosenstein billed to review each and every e-mail that Ms. Neal-Post sent to the United States Attorney's Office regarding the plea documents, to review all of the plea documents themselves, and billed over an hour to discuss each of those documents with Ms. Neal-Post. Ms. Neal-Post of course billed for drafting those same documents and e-mails. While plea discussions are extremely important, if Ms. Neal-Post was the one drafted the documents and coordinated with the government, Ms. Rosenstein does not need to essentially double bill for those documents. Further, any information regarding those documents could have been passed on to Ms. Rosenstein during the lengthy conference. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224308/ | ORDER & OPINION
1
RONALD A. WHITE, District Judge.
Plaintiffs Kelly Bryant and Hollie Bryant (hereinafter referenced individually as “Kelly” and “Hollie”) brought this action against Defendant Sagamore Insurance Company (hereinafter “Sagamore”) on May 31, 2013 seeking damages for breach of contract and bad faith. As to the bad faith claims, the court previously denied Plaintiffs’ and granted Sagamore’s motion for summary judgment. The breach of contract claims remain.
Plaintiffs argue that Sagamore breached the insurance contract when it denied coverage for an accident that happened when Hollie was driving a vehicle that was covered under a policy purchased by Kelly. Hollie was specifically excluded on the policy. Plaintiffs argue that under a recent Oklahoma Supreme Court decision, the named driver exclusion was invalid. Saga-more argues that at the time it denied coverage, the named driver exclusion was valid. Sagamore further argues that Kelly’s failure to cooperate with Sagamore during its investigation is a second independent basis for denying coverage. For the reasons set forth below, as to the remaining claims for breach of contract, the court now denies Plaintiffs’ motion for summary judgment [Docket No. 41] and grants Sagamore’s motion for summary judgment [Docket No. 39].
UNDISPUTED MATERIAL FACTS2
On June 29, 2011, Kelly’s teenage daughter Hollie was driving a 2003 Ford Mustang and had an accident with Cuba Lawrence. Docket No. 40, Exh. 13 (Collision Report). The Mustang was insured by Sagamore under a policy purchased by Kelly. Docket No. 40, Exh. 2, p. 23 (Kelly Dep.); Docket No. 40, Exh. 7, p. 10 (Revised Declarations); Docket No. 40, Exh. 1, pp. 1-5 (Application); Docket No. 40, Exh. 3 (Policy). Hollie was an excluded driver on the policy. Docket No. 40, Exh. 2, pp. 23, 24, 26 and 28 (Kelly Dep.); Docket No. 40, Exh. 7, p. 10 (Revised Declarations); Docket No. 40, Exh. 1, p. 1-5 (Application). Kelly excluded Hollie from his policy so that his policy premium would be less expensive. Docket No. 40, Exh. 2, pp. 23-24 (Kelly Dep.).
The policy provides that “any person who is specifically excluded is not an in*1248sured person.” Docket No. 40, Exh. 3, p. 5 (Policy). The policy also provides: “We do not provide coverage for bodily injury or property damage ... resulting from the use of a car by a person specifically excluded.” Docket No. 40, Exh. 3, p. 5-6 (Policy). The policy further requires cooperation from the insured:
A person claiming any coverage under this policy must also:
(1) cooperate with us and assist us in any matter concerning a claim or suit, including presence at a trial.
(2) send us promptly any legal papers received relating to any claim or suit.
(6) submit to an examination under oath if required by us.
(7) upon our request, allow us to obtain a written or recorded statement concerning the circumstances of the claim and any damages claimed.
We shall not be liable for damages or costs assessed as a result of or due to an insured person’s failure to cooperate with us under the terms of this policy, or for an insured person’s failure to appear at trial, in court hearings, or at other court-ordered conferences when the insured person’s attendance is necessary for defending the interests of you, the insured person, or us.
Docket No. 40, Exh. 3, p. 16 (Policy).
Kelly contacted his insurance agent on June 30, 2011 to report the accident. Docket No. 40, Exh. 2, pp. 32-33 (Kelly Dep.). Kelly called Sagamore on July 8 and 15, 2011.3 Docket No. 40, Exh. 2, pp. 30-31, (Kelly Dep.). Cuba Lawrence submitted a claim against the policy. Docket No. 40, Exh. 4 (Claim Report).
Sagamore sent a reservation of rights letter to Kelly dated July 11, 2011 to the address Kelly listed on his insurance application. Docket No. 40, Exh. 16 (July 11, 2011 letter); Docket No. 40, Exh. 1 (Application). Kelly received the letter. Docket No. 40, Exh. 2, p. 40 (Kelly Dep.). Kelly did not respond. Id. Sagamore called Kelly and did not reach him on July 15, 2011. Docket No. 40, Exh. 4, p. 18 (Claim Report). Sagamore called Kelly on July 20, 2011 and left a message. Docket No. 40, Exh. 4, p. 17 (Claim Report). Kelly did not respond. Id.
Sagamore sent a second reservation of rights letter to Kelly dated August 23, 2011 to the address listed on his insurance application. Docket No. 40, Exh. 17 (August 23, 2011 letter). Sagamore noted in the letter that he had not responded to correspondence and that his cooperation was needed to resolve the claim and required under the policy. Id. Kelly does not dispute Sagamore sent this letter, and he did not respond. Docket No. 40, Exh. 2, pp. 46-47 (Kelly Dep.); Docket No. 40, Exh. 4, pp. 1-15 (Claim Report). On September 7, 2011, Sagamore sent an independent adjuster to Kelly’s home to get a statement. Docket No. 40, Exh. 4, p. 11 (Claim Report). Kelly was not home, so the adjuster left a card. Id. Kelly did not respond. Id.
On September 21, 2011, Sagamore’s attorney, Mr. Babb, sent a letter via Federal Express to Kelly at the address listed on his application and at his home address. Docket No. 40, Exh. 18 (September 21, 2011 letter). The letter noted Plaintiffs’ failure and/or refusal to respond to Saga-*1249more’s inquiries and the policy’s cooperation requirement, including the requirement to submit to an examination under oath. Id. Mr. Babb informed Kelly that an examination under oath was scheduled for both Plaintiffs at September 30, 2011 and that if they failed to appear, Sagamore could decline coverage due to his failure to cooperate. Id. Mr. Babb also stated that if they could not appear on that date, to contact him to schedule the exams at a “mutually convenient time and date.” Id. Plaintiffs did not appear. Docket No. 40, Exh. 19 (September 30, 2011 Transcript); Docket No. 40, Exh. 2, p. 51 (Kelly Dep.).
In a letter dated October 19, 2011, Saga-more denied coverage of the claim on two bases: (1) Hollie was an excluded driver on the policy; (2) Kelly’s failure to appear for examination under oath and cooperate in the investigation of the claim. Docket No. 40, Exh. 23 (October 19, 2011 letter). The letter included the statement: “if you believe this decision has been made in error, please contact us and provide specific information which you believe would provide coverage.” Id. Kelly received the letter and did not respond. Docket No. 40, Exh. 2, pp. 51-53 (Kelly Dep.).
BREACH OF CONTRACT CLAIMS
To recover on a breach of contract theory, a plaintiff must prove: “1) formation of a contract; 2) breach of the contract; and 3) damages as a direct result of the breach.” Digital Design Group, Inc. v. Information Builders, Inc., 24 P.3d 834, 843 (Okla.2001). The relationship between Sagamore and Kelly is contractual in nature.4 See First Bank of Turley v. Fidelity & Deposit Ins. Co. of Md., 928 P.2d 298, 302 n. 6 (Okla.1996).
In Oklahoma, “[t]he language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” 15 Okla. Stat. § 154. When the policy language is clear and unambiguous, “the employed language is accorded its ordinary, plain meaning and enforced so as to carry out the parties’ intentions.” Bituminous Cas. Corp. v. Cowen Constr., Inc., 55 P.3d 1030, 1033 (Okla.2002). The court is to be “mindful that an insured and insurer are free to contract for that quantum of coverage which one is willing to extend and the other is willing to purchase.” Id.
The parties are bound by the terms of the policy, and the court will not rewrite it “to make for either party a better contract than the one which was executed.” Id. “Courts must not torture the policy language in order to ‘create ambiguities where none exist.’ ” Id. at 1035 (citation omitted). “The rule that policies are to be construed against the insurer has no application where the provisions are susceptible of only one reasonable construction.” Certain Underwriters at Lloyds London v. B3, Inc., 262 P.3d 397, 400 (Okla.Civ.App. Div. 1 2011).
ANALYSIS
The policy is clear and unambiguous. It excludes Hollie. It requires Kelly’s cooperation. In a letter dated October 19, 2011, Sagamore denied coverage of the claim submitted by Cuba Lawrence on Kelly’s policy based on the following: 1) Hollie was an excluded driver on the policy, and 2) Kelly failed to appear for the examination under oath and to cooperate *1250in the investigation of the claim as required under the policy. If either of these bases are valid under the policy, then Sa-gamore did not breach it.
Named Driver Exclusion
The Oklahoma Supreme Court decided Mulford v. Neal, 264 P.3d 1173 (Okla.2011) on March 15, 2011, holding that named driver exclusions issued to both parents of a minor driver are unenforceable, as they are inconsistent with the clear public policy in Oklahoma’s compulsory insurance law.5 Mulford, however, was not published until December of 2011, after Sagamore’s denial decision.6
Recognizing that until an opinion is published it has no precedential effect, on July 1, 2011, an Oklahoma Civil Appeals Court held that “the compulsory insurance statutes, as well as Oklahoma Supreme Court precedent, continue to uphold the validity of an exclusion from coverage of a named driver.” Rodriguez v. Gutierrez-Perez, 273 P.3d 69 (Okla.Civ.App.2011). Until Mulford was published, it was not controlling. At the time of the denial in October of 2011, Mulford had not been published; thus, the named driver exclusion was valid. Sagamore did not breach the contract when it denied coverage in October of 2011 based on the named driver exclusion.7
Kelly’s Failure to Cooperate
As noted above, Kelly has argued that when he spoke with his agent and Sagamore in July, he was told that there was no coverage because Hollie was excluded. For purposes of the motions, the court accepts this as true. Nevertheless, the subsequent correspondence made clear that Sagamore was investigating the claim. Kelly had an obligation under the contract to cooperate, and his failure to do so was a valid basis for denial of a claim.
Sagamore repeatedly attempted to reach Kelly with the contact information he provided on his application and wherever they could find him through their own investigation. Kelly failed to respond to any of Sagamore’s messages or letters.8 Kelly *1251failed to appear for the examination under oath. Under the terms of the policy, Sa-gamore had a valid basis to deny coverage for failure to cooperate. Sagamore did not breach the contract when it denied coverage based on Kelly’s failure to cooperate.
CONCLUSION
Accordingly, Sagamore’s motion for summary judgment [Docket No. 39] is hereby GRANTED as to the breach of contract claims. Plaintiffs’ motion for summary judgment [Docket No. 41] is DENIED as to the breach of contract claims. Plaintiffs’ breach of contract claims are dismissed. All remaining motions are hereby DENIED as MOOT.
. For clarity and consistency herein, when the court cites to the record, it uses the docket, exhibit and page numbers assigned by CM/ECF.
. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). "Con-clusory allegations that are unsubstantiated do not create an issue of fact and are insufficient to oppose summary judgment.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 (10th Cir.2003) (citation omitted). Additionally, the court "need consider only the cited materials, but it may consider other materials in the record.” Fed.RXiv.P. 56(c)(3).
. Kelly has argued that he understood the claim was denied at this juncture. It is clear from the Sagamore communications that followed, however, that the coverage decision had not yet been made. Kelly’s mistaken belief that the claim was denied does not make it so, nor does it negate his cooperation obligation under the policy.
. Hollie is not a party to the contract. Moreover, as she was specifically excluded as a driver, the court doubts that either Kelly or Sagamore intended her to benefit from the policy to the extent that she could enforce the contract as a third party beneficiary and recover on a breach of contract theory. Nevertheless, as there was no breach, the court need not address this issue.
. In this case, Sagamore was unaware that Hollie’s mother's insurance covered her. Had Kelly cooperated in the claim investigation, Sagamore may have learned this fact.
. After Mulford was published, Sagamore paid Cuba Lawrence the policy limits. Plaintiffs have argued that the court should disregard Federal Rule of Evidence 408 and look to Florida law to find that payment of the policy limits establishes the breach. The court is not convinced. Sagamore paid the policy limits to Cuba Lawrence after Mulford was published because it determined that under the newly precedential decision, he may be entitled to payment as an innocent third party. That payment does not establish a breach in October of 2011 when Sagamore did not know if Mulford would ever become precedential.
. Moreover, it is not abundantly clear that Mulford invalidates the named driver exclusions in Kelly’s policy. The Mulford court held that named driver exclusions issued to both parents of a minor driver are unenforceable as against "clear public policy in Oklahoma's compulsory insurance law.” Mulford, 264 P.3d at 1183. As is now known, Hollie was covered under a policy purchased by her mother. The Mulford court stated: "We decline to act today as a Legislature and determine under what conditions an unemanci-pated teenager with a driver’s license could be properly excluded from the parent’s motor vehicle insurance policy.” Id. (emphasis in original). It could be determined that divorced parents may negotiate which of them will carry insurance for their licensed teenager leaving the other with the ability to insure his or her vehicle without adding coverage for that teenager.
.Kelly has argued that he may not have received all of the letters at the address he provided to Sagamore, which was his father’s address and next to his own. In Oklahoma, ”[w]hen a letter is placed in the mail system bearing a correct address and sufficient postage to reach its destination, a rebuttable presumption arises that the letter did in fact *1251reach the addressee. In the absence of sufficient rebuttable evidence, the presumption prevails." Visteon Corp. v. Yazel, 91 P.3d 690, 700 (Okla.Civ.App.2004) (citation omitted)(emphasis in original). Kelly has not provided sufficient rebuttable evidence. Furthermore, it was Kelly’s duty to provide Sagamore with his correct address. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217038/ | MEMORANDUM**
Jerome Brown, a California state prisoner, appeals pro se the district court’s grant of summary judgment dismissing his 42 U.S.C. § 1983 action, in which he alleged that various prison officials violated the First Amendment by retaliating against him for filing lawsuits and administrative grievances. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo the district court’s grant of summary judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). We affirm.
Summary judgment was proper on Brown’s retaliation claims because he failed to raise a genuine issue of material fact as to whether confiscation of his contraband bags and the disciplinary report *419issued against him were unrelated to a legitimate penological interest. See Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir.1995).
We do not consider allegedly retaliatory actions that were not part of Brown’s First Amended Complaint and therefore not passed upon by the district court. See Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir.1995).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217039/ | MEMORANDUM***
Angie Sanchez appeals pro se the district court’s summary judgment in her employment discrimination action under the Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 794 (9th Cir.2001). We may affirm for any reason supported by the record. Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1062 (9th Cir.*4202001). We affirm in part, vacate in part, and remand.
Because Sanchez failed to raise a genuine issue of material fact as to whether she had an actual or perceived disability within the meaning of the ADA, we affirm the district court’s summary judgment on Sanchez’s claim of discriminatory termination under the ADA. See Thornton, 261 F.3d. at 795, 798 (noting that “a plaintiff must present specific evidence about relevant labor markets to defeat summary judgment on a claim of substantial limitation of ‘working;’ ” affirming summary judgment where there was no specific evidence that employer regarded employee as substantially limited); Thompson v. Holy Family Hosp., 121 F.3d 537, 539-40 (9th Cir.1997) (per curiam) (holding that a 25-pound lifting restriction was not substantially limiting).
In light of the California Supreme Court’s intervening decision in Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, 29 Cal.4th 1019, 1030-31, 63 P.3d 220 (2003) (holding that the 2001 amendments to the definition of disability merely clarified existing law), we vacate summary judgment on Sanchez’s FEHA claims, and remand for further proceedings, including consideration of whether to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(a).
Each party shall bear its own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217041/ | MEMORANDUM**
Hector Hugo Maldonado-Escobar appeals the district court’s denial of discovery on his claim of selective prosecution. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, United States v. Candia-Valletta, 104 F.3d 243, 246 (9th Cir.1996), and we affirm.
Maldonado-Escobar contends that the district court abused its discretion by denying his motion to compel discovery on his claim that Hispanic males have been disproportionately targeted for Section 1326 prosecution. We disagree. Because Maldonado-Escobar failed to present sufficient evidence that similarly situated non-Hispanic aliens were not prosecuted for illegal reentry, he has not made the threshold showing required to obtain discovery. See United States v. Armstrong, 517 U.S. 456, 468-69, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (requiring some evidence that the defendant was singled out for prosecution while similarly situated others were not); United States v. Turner, 104 F.3d 1180, 1184-85 (9th Cir.1997) (noting that a defendant cannot establish a discriminatory effect by presenting evidence that a law was enforced exclusively against a particular ethnic group).
We reject Maldonado-Escobar’s contention that the district court erred by imposing an “insuperable” burden on him to establish a similarly situated comparison group. See Armstrong, 517 U.S. at 470.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217064/ | MEMORANDUM**
Charles Anthony Greene appeals pro se the district court’s judgment dismissing his action alleging that the Bureau of Indian Affairs (“BIA”) -wrongfully failed to intervene when the Choctaw Nation of Oklahoma denied Greene tribal membership. We have jurisdiction under 28 U.S.C. § 1291. After de novo review, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), we affirm.
The district court properly dismissed Greene’s action because only the Choctaw Nation may grant him tribal membership, not the BIA. See Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (“Indian tribes retain their inherent power to determine tribal membership[.]”).
Greene’s remaining contentions lack merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224310/ | *1271MEMORANDUM DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS
TED STEWART, District Judge.
This matter is before the Court on Defendant’s Motion to Dismiss for Failure to State a Claim and Lack of Personal Jurisdiction. For the reasons set forth below, the Court will deny Defendant’s Motion.
I. BACKGROUND
Plaintiff SelectHealth, Inc. is a health insurance provider in the Intermountain West and is a Utah corporation.1 Defendant James E. Risinger is a resident of the state of Texas.
In December 2011, Plaintiff contacted Defendant about acquiring the domain name www.selecthealth.com, which Defendant owned. After the parties entered negotiations to purchase the domain, Defendant copied Plaintiff’s website information from www.selecthealth.org and pasted it to his own website, www.selecthealth. com. Defendant also attached a registration survey to his website where visitors could register for health services. Defendant’s website, displaying content from Plaintiffs website, received over 1,200 emails and 637 registrations, of which 622 registrations provided addresses in the state of Utah. Defendant then relayed this information to Plaintiff, including the specific references to the Utah registrants, allegedly in an attempt to improve negotiations with Plaintiff, and drive up the price of the www.selecthealth.com domain name.
Plaintiff alleges that Defendant’s actions have caused confusion and as a result Plaintiff has suffered damages. Plaintiff filed suit in the District of Utah and Defendant disputes personal jurisdiction.
II. PERSONAL JURISDICTION STANDARD
Plaintiff carries the burden of establishing personal jurisdiction over Defendant.2 “‘To obtain personal jurisdiction over a nonresident defendant in a diversity action, a plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment.’ ”3 “When the evidence presented on the motion to dismiss consists of affidavits and other written materials, the plaintiff need only make a prima facie showing.”4 “The allegations in the complaint must be taken as true to the extent they are uncontroverted by the defendant’s affidavits. If the parties present conflicting affidavits, all factual disputes are resolved in the plaintiffs favor....”5
“It is frequently helpful to undertake the due process analysis first, because any set of circumstances that satisfies due process will also satisfy the long-arm statute.”6 To satisfy the constitutional requirement of due process there must *1272be “minimum contacts” between the defendant and the forum state.7
The “minimum contacts” standard may be met by a finding of either general jurisdiction or specific jurisdiction. Only specific jurisdiction is at issue here. When the “defendant has purposely directed his activities at residents of the forum,” courts in that state may exercise specific jurisdiction over cases that “arise out of or relate to those activities.”8 In order for the Court to find specific jurisdiction, there must be “some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.”9
If the Court finds that a defendant had adequate minimum contacts with the forum state, the Court must also then determine whether personal jurisdiction is reasonable in light of the circumstances surrounding the case or, in other words, that exercising jurisdiction would not offend traditional notions of “fair play and substantial justice.”10 Courts consider the following factors to decide whether exercise of jurisdiction is reasonable: (1) the burden on the defendant, (2) the forum state’s interest in resolving the dispute, (3) the plaintiffs interest in receiving convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive policies.11
III. DISCUSSION
“The minimum contacts test examines the number and nature of a defendant’s contacts with the forum.”12 Plaintiff does not contend that the Court has general jurisdiction over Defendants. Therefore, the Court will focus its analysis on specific jurisdiction. Plaintiff asserts that the Court has jurisdiction because (1) Defendant purposely directed his activities at residents of Utah and (2) Plaintiffs injuries arise out of Defendant’s forum-related activities.
A. PURPOSEFUL DIRECTION
The Tenth Circuit has instructed that purposeful direction can be found when there is an intentional act that was expressly aimed at the forum state with knowledge that the brunt of the injury from the act would be felt in the forum state.13 Plaintiff offers four reasons why the Court should find that Defendant purposely directed his actions toward Utah residents: (1) Defendant was on notice that Plaintiff was a Utah-based company; (2) Defendant duplicated Plaintiffs website; (3) Defendant used information obtained from the duplicated website to attempt to extract a higher salés price for www.selecthealth.com; and (4) Defendant entered into negotiations with Plaintiff, a *1273Utah-based company, to sell www. selecthealth.com.
1. Notice
Plaintiff alleges that it federally registered SELECTHEALTH and other related marks in 2007, four years before Plaintiff and Defendant entered into negotiations. Therefore, Plaintiff asserts that Defendant was on notice that any actions he took related to the SELEC-THEALTH mark would have effects in Utah and subject him to suit there.
Defendant argues that Plaintiffs registration of SELECTHEALTH in 2007 did not put Defendant on notice because under Webstat.com v. Web Tracking Services, LLC,14 Defendant had no duty to continue to check the trademark registry database after it had registered the domain name.15 However, evidence in the pleadings demonstrates that Defendant was on notice that Plaintiff was a Utah company and that his actions would be felt in the forum state.
In the email that Defendant drafted and sent to Plaintiff on September 5, 2012, Defendant purposely informed Plaintiff that 622 survey registrants originated from Utah.16 This suggests that Defendant knew Utah registrants would be of greater significance to Plaintiff because Plaintiff was a Utah based company. In addition, the web content that Defendant copied and pasted to his website reveals Defendant knew his actions would be felt in Utah because several images contain corresponding quotes given by health care customers living in Ogden, Salt Lake City, and American Fork, Utah.17
The Court does not hold that Defendant had an obligation to check the trademark registry after he registered his domain name. However, based on the facts of this case, Plaintiff was sufficiently put on notice that the SELECTHEALTH trademark was owned by a Utah company and that Defendant’s actions in copying the content and pasting it to www.selecthealth. com would be felt in the forum state of Utah.
2. Duplication of Plaintiff’s Website
Plaintiff alleges that Defendant copied content from www.selecthealth.org and posted it on his own domain to increase Utah-based web traffic. Plaintiff claims it “never gave permission, implicitly or explicitly, for [Defendant] to copy [Plaintiffs] webpage.”18 Plaintiff asserts that this act alone subjects Defendant to Utah’s jurisdiction for three reasons. First, listing a large Utah-based company with substantial connections to Utah on Defendant’s website shows that Defendant’s actions were expressly aimed at Utah. Second, misappropriating a Utah mark ensured that confusion would be felt in Utah by Utah residents. Finally, targeting a large Utah company is sufficient to subject Defendant to Utah’s jurisdiction.
Defendant relies on Shrader v. Bidding-er19 to argue that Defendant is not subject to jurisdiction in Utah because the alleged copied material was not purposely directed at Utah, but to a “nation-wide or worldwide audience ... with no inherent interest in or tie to the forum state.”20 Howev*1274er, Shrader is easily distinguished from this case. The defendant in Shrader posted defamatory remarks about the plaintiff on a website that had no specific ties to the forum state of Oklahoma. Nor was the posted content directed to an audience residing in Oklahoma. The Shrader court dismissed the case for lack of personal jurisdiction because the defendant directed his defamatory posting to a nationwide audience and not specifically toward the forum state of Oklahoma or an Oklahoma audience.
In this case, Defendant copied web content from a Utah-based company and attached it to his own website to help him “survey the demographics of visitors to the domain name.”21 Consequently, the copied content garnered information from several hundred Utah residents. The Court finds that Defendant purposely targeted residents of the forum state of Utah and not a general nationwide audience.
3. Attracting Utah Residents
Plaintiff alleges that Defendant used information obtained from the duplicated website to extract a higher sales price for the www.selecthealth.com domain name. Plaintiff also alleges that Defendant’s effort in copying content from www. selecthealth.org was an attempt by Defendant to attract Utah residents to his website, thus providing him with statistical information that would assist him in extracting a higher purchase price from Plaintiff.
Plaintiff alleges that over the course of two months, Defendant received over 1,200 emails through the copied website and 637 website visitors registered their personal information, 622 of whom provided addresses in the state of Utah. Plaintiff argues that these statistics show Defendant successfully directed his actions to Utah.
Defendant contends that “maintenance of a website does not subject the owner or operator to personal jurisdiction, even for actions relating to the site, simply because it can be accessed by residents of the forum state.”22 Although Defendant’s statement of the law is true, website owners and operators are subject to personal jurisdiction in the forum state if their actions are expressly aimed at residents of the forum state.23 In this case, Defendant expressly aimed the contents of his website at Utah residents because he used copied website content from a Utah-based company to “survey the demographics of visitors to the domain name.”24
i'h Negotiations With Utah-Based Plaintiff
Plaintiff alleges that Defendant purposely caused confusion by copying the website trademark material, and did so to drive up the price of his domain name. Plaintiff also alleges that Defendant offered to include the information he obtained from the 622 Utah registrants as part of the deal if Plaintiff would pay his demanded price. Thus, Plaintiff asserts that Defendant attempted to use his Utah-directed actions to negotiate with a Utah company, thus purposely directing his actions to the forum state of Utah.
Defendant argues that Plaintiff reached out to Texas when Plaintiff contacted Defendant to negotiate the purchase of www. selecthealth.com. Therefore, Plaintiffs so*1275licitation aimed at Texas cannot create specific personal jurisdiction in Utah.
Defendant is correct that Plaintiffs Texas-aimed solicitations do not necessarily create personal jurisdiction in Utah. However, Defendant’s subsequent actions do constitute purposeful direction under the minimum contacts standard. Defendant responded to Plaintiff’s solicitation by copying Plaintiff’s website content and using it to allegedly extract a higher sales price from Plaintiff. As a result, Defendant’s actions are alleged to have caused Plaintiff harm and potentially misled Utah consumers.
Based on the foregoing, the Court agrees with Plaintiff that Defendant purposely directed his activities to the state of Utah.
B. ARISE OUT OF
Having determined that Defendant purposefully directed his activities at Utah, due process next requires inquiry into whether Plaintiffs injuries arise out of Defendant’s contacts with Utah.25 There is no dispute that, at the very least, Plaintiffs copyright infringement claims arise out of Defendant’s contacts with the forum. Plaintiff alleges that Defendant misappropriated its copyrighted material, trade names, trade dress, and trademarks and displayed this information on his website.
Defendant argues that Plaintiff failed to establish any real injury arising out of Defendant’s display of the copied website material because he did not sell or otherwise provide Plaintiffs products or services to Utah consumers. Indeed, Defendant claims that he did not contact any of the registrants collected from the copied content. Defendant also argues Plaintiff failed to establish that it has lost customers, failed to make sales, suffered damage to its reputation, or suffered any other damages as a result of the copied content.
Plaintiff has alleged that it has been harmed by Defendant’s actions. Without any evidence to the contrary, at this stage in the litigation the Court must accept Plaintiffs allegations as true. As a result, the Court finds that Plaintiffs copyright claims arise out of Plaintiffs contacts.
C. FAIR PLAY AND SUBSTANTIAL JUSTICE
When Defendant is shown to have had adequate minimum contacts with the forum state, the Court must also determine whether exercising jurisdiction would not offend traditional notions of fair play and substantial justice. The Court considers the following five factors: (1) the burden on the defendant; (2) the forum state’s interest in resolving the dispute; (8) the plaintiffs interest in receiving convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive policies.
Defendant argues that the burden to litigate this case in Utah would offend traditional notions of fair play and substantial justice. However, Defendant has failed to identify any specific burden placed on him. Further, the burden on the defendant, while always a primary concern, will be considered in light of the other relevant factors.26 In this case, Utah has a considerable interest in resolving this dispute because Plaintiff is a Utah-based company engaged in supplying *1276health-care insurance to Utah residents. Moreover, Plaintiff has a significant interest in receiving convenient and effective relief in Utah because Plaintiff operates in the state of Utah and does not engage in business affairs in the state of Texas. Finally, the interstate judicial system’s interest and the shared interest of Utah and Texas are well-served by resolving the dispute in Utah. Therefore, the exercise of jurisdiction over Defendant in this forum will not offend traditional notions of fair play and substantial justice.
IV. CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction (Docket No. 13) is DENIED.
. Plaintiff is a subsidiary company of Inter-mountain Health Care, also a Utah corporation.
. Kuenzle v. HTM Sport-Und Freizeitgeräte AG, 102 F.3d 453, 456 (10th Cir.1996).
. Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1295 (10th Cir.1999) (quoting Far W. Capital, Inc. v. Towne, 46 F.3d 1071, 1074 (10th Cir.1995)).
. Bell Helicopter Textron, Inc. v. Heliqwest Int’l., Ltd., 385 F.3d 1291, 1295 (10th Cir.2004).
. Kennedy v. Freeman, 919 F.2d 126, 128 (10th Cir.1990).
. Sys. Designs, Inc. v. New Customware Co., 248 F.Supp.2d 1093, 1097 (D.Utah 2003).
. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
. Burger King v. Rudzewicz, 471 U.S. 462, 472-73, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958) (citation omitted).
. Burger King, 471 U.S. at 476, 105 S.Ct. 2174.
. Bell Helicopter, 385 F.3d at 1296.
. Hartman v. DynCorp Int’l, LLC, No. 2:12-CV-364 TS, 2012 WL 4480553, at *2 (D.Utah Sept. 29, 2012).
. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir.2008).
. No. 2:03-CV-977 PGC (D.Utah July 15, 2004) (unpublished).
. Id. at *13.
. Docket No. 19 Ex. C.
. Id. Ex. B.
. Docket No. 18, at 13.
. 633 F.3d 1235 (10th Cir.2011).
. Id. at 1240.
. Docket No. 21, at 12.
. Shrader, 633 F.3d at 1241; Soma Med., 196 F.3d at 1297-98; Hartman, 2012 WL 4480553.
. Calder v. Jones, 465 U.S. 783, 789, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984).
. Docket No. 21, at 12.
. Dudnikov, 514 F.3d at 1078.
. World-Wide Volkswagen Corp., 444 U.S. at 291, 100 S.Ct. 559. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217042/ | MEMORANDUM**
Jerry Joe Fields appeals the 84-month sentence imposed following his guilty plea conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review de novo the district court’s interpretation of the Sentencing Guidelines, and for clear error its factual findings at sentencing. United States v. Seesing, 234 F.3d 456, 459 (9th Cir.2000). We affirm.
Fields contends that the district court improperly applied a four-level enhancement to his sentence pursuant to U.S.S.G. § 2K2.1(b)(5), for possessing a firearm in connection with another felony offense. The district court did not clearly err in finding that Fields used the firearm to attempt to obtain a listed chemical he knew would be used to manufacture methamphetamine, a separate felony offense under 21 U.S.C. §§ 846 and 841(c)(2). See United States v. Polanco, 93 F.3d 555, 564-66 (9th Cir.1996). Therefore, the enhancement was proper.
Fields’ contention that the district court engaged in impermissible double-counting lacks merit. See United States v. Turnipseed, 159 F.3d 383, 386 (9th Cir.1998).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217043/ | MEMORANDUM**
Alfredo Gaspar-Lupercio appeals the district court’s denial of discovery on his claim of selective prosecution. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, United States v. Candia-Veleta, 104 F.3d 243, 246 (9th Cir.1996), and we affirm.
Gaspar-Lupercio contends that the district court abused its discretion by denying his motion to compel discovery on his claim that Hispanic males have been disproportionately targeted for Section 1326 prosecution. We disagree. Because Gas-par-Lupercio failed to present sufficient evidence that similarly situated non-Hispanic aliens were not prosecuted for illegal reentry, he has not made the threshold showing required to obtain discovery. See United States v. Armstrong, 517 U.S. 456, 468-69, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (requiring some evidence that the defendant was singled out for prosecution while similarly situated others were not); United States v. Turner, 104 F.3d 1180, 1184-85 (9th Cir.1997) (noting that a defendant cannot establish a discriminatory effect by presenting evidence that a law was enforced exclusively against a particular ethnic group).
We reject Gaspar-Lupercio’s contention that the district court erred by imposing an “insuperable” burden on him to establish a similarly situated comparison group. See Armstrong, 517 U.S. at 470.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217044/ | MEMORANDUM**
Macedonio Carrillo-Sanchez appeals from his sentence, imposed following his guilty plea conviction for possession of cocaine with intent to distribute, and importation of cocaine, in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and (b)(2)(B)(ii).
Carrillo-Sanchez contends that the district court erred in not granting a downward departure based on his minor role in the scheme. A district court’s discretionary decision not to depart from the guidelines is not reviewable on appeal. United States v. Morales, 972 F.2d 1007, 1011 (9th Cir.1992), cert. denied, 507 U.S. 1012, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993). Here, the record does not suggest that the district judge thought that he was without authority to depart; rather, it is clear that he believed that it would not be appropriate to do so under the circumstances.
To the extent that Carrillo-Sanchez contends that the district court erred by not granting him a minor role adjustment under the Guidelines, we conclude that given the circumstances, the district court’s denial of such an adjustment was not clearly erroneous. See United States v. Pena-Gutierrez, 222 F.3d 1080, 1091 (9th Cir.), (reviewing for clear error a district court’s determination that a defendant does not qualify for a minor role adjustment), cert. denied, 531 U.S. 1057, 121 S.Ct. 670, 148 L.Ed.2d 570 (2000); United States v. Hernandez-Franco, 189 F.3d 1151, 1160 (9th Cir.1999) (affirming denial of minor role adjustment for defendant who appeared to be merely the driver in the smuggling operation); see also United States v. Rexford, 903 F.2d 1280, 1282 (9th Cir.1990) (stating that “a district court is not compelled to determine whether a defendant was or was not the least culpable participant in determining whether that defendant’s role was ‘minor’ ”).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217045/ | MEMORANDUM **
Anita McClellan appeals her 200-month sentence imposed after her guilty plea conviction for second-degree murder in violation of 18 U.S.C. §§ 1111 and 1153. We lack jurisdiction and dismiss. See United States v. Vences, 169 F.3d 611, 612 (9th Cir.1999).
McClellan contends her waiver of the right to appeal did not foreclose an appeal contending that the district court’s upward departure was unreasonable. We review de novo the waiver of a statutory right to appeal, United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996), and conclude that McClellan’s contention is unpersuasive. McClellan’s plea agreement contained a waiver of her right to appeal “if the sentence imposed is consistent with the terms of this agreement.” The agreement specifically memorialized McClellan’s understanding that the agreement was not binding on the court, the right of both parties to make any recommendations to the court, and the court’s authority to depart upward from the calculated guideline range. The sentence McClellan received, which reflected an upward departure for the unusual brutality of her crime, was consistent with the plea agreement.
To the extent that McClellan also contends the waiver was not valid because the plea colloquy required by Federal Rule of Criminal Procedure 11 was inadequate, her contention fails because the district court addressed the waiver of appeal in the colloquy.
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217209/ | PER CURIAM.
Warren Boardley appeals the district court’s order denying his “motion to append presentence report.” Boardley sought the correction of certain alleged inaccuracies in his 1989 presentence report. Under former Fed.R.Crim.P. 32(c)(3)(D), motions to correct errors in a presentence report must be made prior to the imposition of sentence. United States v. Warner, 23 F.3d 287, 290 (10th Cir.1994); United States v. Engs, 884 F.2d 894, 895-97 (5th Cir.1989). Boardley’s motion was filed more than twelve years after imposition of sentence, and the district court was without jurisdiction to consider the motion. We dismiss Boardley’s appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217050/ | MEMORANDUM **
Dwayne Smith appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison officials used excessive force and acted with deliberate indifference to his serious medical needs in connection with transferring Smith to a new prison cell. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals under 28 U.S.C. § 1915(e), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we affirm.
The district court properly dismissed Smith’s action because he conceded in his complaint, his motion for a stay, and his objections to the magistrate judge’s findings and recommendations that he had not *429exhausted all available prison grievance procedures as required by 42 U.S.C. § 1997e(a). See Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.2003) (a “prisoner’s concession to nonexhaustion is a valid ground for dismissal”). Smith’s contention on appeal that he exhausted his administrative remedies after filing this action is unavailing because prisoners must exhaust prior to commencing suit. See McKinney v. Carey, 311 F.3d 1198, 1199-1200 (9th Cir.2002) (per curiam).
We construe the district court’s dismissal to be without prejudice. See Wyatt, 315 F.3d at 1120.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217051/ | MEMORANDUM **
Maryann Guzman Cayanan Jose, a federal prisoner, challenges the district court’s refusal to conduct an evidentiary hearing before denying her 28 U.S.C. § 2255 motion.1 Jose challenges her 240-month sentence for criminal conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846. We have jurisdiction pursuant to 28 U.S.C. § 2253.2 We review for an abuse of discretion the district court’s refusal to conduct an evidentiary hearing, United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir.2001), and we reverse and remand.
Jose contends that the district court abused its discretion by failing to conduct an evidentiary hearing to consider: whether the government breached the plea agreement by failing to move for a substantial assistance downward departure pursuant to United States Sentencing Guidelines § 5K1.1; and whether her trial counsel was ineffective by faffing to object to this alleged breach, and by failing to file a direct appeal on her behalf. The government concedes that an evidentiary hearing was required. See United States v. Mikaelian, 168 F.3d 380, 385 (9th Cir.1999) (stating that a defendant’s objection to the government’s refusal to move for a departure pursuant to § 5K1.1 on the grounds that it acted in bad faith raises a factual dispute which must be resolved by the *430district court). Based upon the government’s concession of error, we reverse and remand for further proceedings, but express no opinion as to the appropriate outcome.
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. The clerk is directed to conform the docket for this case to the caption set forth above.
. Because the appeal waiver contained in the plea agreement specifically allows Jose to appeal the sentence imposed, we have jurisdiction to consider this matter. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217052/ | MEMORANDUM ***
California state prisoner P.F. Lazor appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). The district court dismissed Lazor’s petition because it found that it was his second petition and he had not received our authorization before filing it in the district court. See 28 U.S.C. § 2244(b)(3). We review the dismissal de novo, any findings of fact for clear error, and the decision not to hold an evidentiary hearing for abuse of discretion. Karis v. Calderon, 283 F.3d 1117, 1126 (9th Cir.2002). We affirm.
Lazor contends that the instant petition is in fact his first federal petition because the petition he filed earlier was dismissed for failure to exhaust and a paralegal subsequently amended and refiled the petition without his knowledge. The district court, after reviewing Lazor’s affidavits and the record, found that Lazor was at least “complicit” in the further prosecution of his first petition, and we cannot say that this finding was clearly erroneous. In addition, the district court did not abuse its discretion when it made this decision without holding an evidentiary hearing. See Williams v. Woodford, 306 F.3d 665, 688-89 (9th Cir.2002) (stating that a district court need not hold an evidentiary hearing in a habeas case, even if credibility is at issue, when the evidence already in the record “fully present[s] the relevant facts” and live testimony “would not alter the court’s view of the record”).
Thus, the district court properly dismissed Lazor’s petition as an unauthorized successive petition. See 28 U.S.C. § 2244(b)(3); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.2001) (per curiam) *431(stating that district courts lack jurisdiction to consider unauthorized successive petitions).1
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. We deny Lazor's alternative request for authorization to file a successive petition. See 28 U.S.C. § 2244(b)(2)(B). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217053/ | MEMORANDUM**
Defendants Cathy Jo Jones and Kathy Milnes appeal the order denying their motion for summary judgment based on qualified immunity, and plaintiff Theodore Chester Kulas cross-appeals the judgment entered following a directed verdict in his 42 U.S.C. § 1983 action. We have jurisdiction under Behrens v. Pelletier, 516 U.S. 299, 312, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) and 28 U.S.C. § 1291. We review de novo the grant of summary judgment and directed verdict. Bank of the West v. Valley Nat. Bank of Arizona, 41 F.3d 471, 477. We affirm.
The district court properly granted summary judgment for the state defendants and directed verdict for the city defendants because Kulas had no constitutionally-protected property or liberty interest in access to the Tucson Police Department’s audiotapes and videotapes, see, e.g., Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1178 (9th Cir.1998), and he failed to show that a state law conversion claim, see Howland v. State of Arizona, 169 Ariz. 293, 818 P.2d 1169, 1172-73 (1991), was not an adequate remedy regarding all of his alleged property, including his suitcase. See Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984).
Kulas’ remaining claims lack merit.
Because Kulas failed to establish a constitutional violation, we do not reach Jones and Milnes’ issue of qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
Kulas’ motion to supplement the record and his motion to file exhibits are *432GRANTED. The Clerk shall file the motions received September 5, 2002 and September 24, 2002. Kulas’ motion for sanctions is DENIED.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217070/ | MEMORANDUM**
Paul B. Palmer, Jr., and Angela Palmer, husband and wife, appeal pro se the district court’s judgment dismissing their action to recover collected taxes and to void a judgment of outstanding taxes. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001), and we affirm.
The district court properly concluded that res judicata bars this action because the Palmers litigated this claim in a prior *451action against the Internal Revenue Service that resulted in a final judgment on the merits. See Palmer v. IRS, 116 F.3d 1309 (9th Cir.1997); Rein v. Providian Financial Corp., 270 F.3d 895, 898-99 (9th Cir.2001).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217055/ | MEMORANDUM**
Brothers Christopher and Timothy Apolinar appeal pro se the district court’s judgment dismissing their action for lack of subject matter jurisdiction and failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, we review de novo, Barnett v. Centoni 31 F.3d 813, 816 (9th Cir.1994) (per curiam), and we affirm.
The district court properly concluded that it lacked subject matter jurisdiction over all claims in which the Apolinars sought to reverse or enjoin actions by the state court or state court employees, or claimed civil rights violations as a result of state court proceedings. See Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029-30 (9th Cir.2001) (discussing Rooker-Feldman doctrine).
The district court properly concluded that the conclusory allegations in the complaint failed to state actionable claims under 42 U.S.C. §§ 1983 and 1985. See Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir.1997). The district court’s August 15, 2001 order denying the Apolinars’ motion for a temporary restraining order did not grant these claims.
Because the district court properly dismissed the complaint, it properly denied as moot plaintiffs’ motion for a preliminary injunction.
*434We reject the Apolinars’ remaining contentions.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217057/ | MEMORANDUM**
California state prisoner Jeffrey Holloway appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action against prison officials alleging excessive force, unconstitutional conditions of confinement, and due process violations. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, Whitmire v. Arizona, 298 F.3d 1134, 1136 (9th Cir.2002), and we affirm in part, reverse in part, and remand.
Holloway alleged that correctional officers attempted to slam his head into a water-filled hole and beat him repeatedly as other correctional officers watched and smiled, even though Holloway did not resist or threaten the correctional officers. Holloway alleged that his resulting injuries included contusions, abrasions and numerous lumps on his head. These allegations are sufficient to state a claim. See Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (prison officials use excessive force in violation of the Eighth Amendment when they act maliciously for the purpose of causing harm whether or not significant injury is evident). Thus, the district court erred by dismissing Holloway’s excessive force claim on the ground that he suffered only de minimis injury. See id.; Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002).
Holloway alleged that while in administrative segregation, defendants knowingly deprived him of clothing, a mattress, additional blankets, toilet paper and the ability to shower for four days while vents *437blew cold air into the cell night and day. These allegations are sufficient to state a claim. See Wilson v. Seiter, 501 U.S. 294, 304, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (a low cell temperature at night combined with a failure to issue blankets may establish an Eighth Amendment violation). Thus, the district court erred by dismissing Holloway’s conditions of confinement claim on the ground that the deprivations he suffered were not objectively, sufficiently, serious. See id.
The district court properly dismissed Holloway’s substantive due process claim because Holloway failed to allege that his detention in administrative segregation constituted a deprivation of liberty that shocks the conscience or interferes with rights implicit in the concept of ordered liberty. See Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.1998).
Accordingly, we reverse the dismissal of Holloway’s Eighth Amendment claims and remand for further proceedings as to those claims.
On remand, the district court should decide anew whether to exercise supplemental jurisdiction over Holloway’s state law claims, see Executive Software N. Am. Inc. v. United States District Court, 24 F.3d 1545, 1552 (9th Cir.1994), and should address Holloway’s civil conspiracy claim, see Woodrum v. Woodward County, Okl., 866 F.2d 1121, 1126 (9th Cir.1989).
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217235/ | BOWNES, Senior Circuit Judge.
Plaintiffs-appellants Susan and Dennis Ford (“the Fords”) commenced a civil action seeking the full amount available under the underinsured motorist provision of the automobile policy issued to them by defendant-appellee Nationwide Mutual Fire Insurance Company (“Nationwide”). Susan Ford was seriously injured in a collision with a pickup truck driven by Kevin Lawrence (“Lawrence”).1 Lawrence’s insurance company paid the full liability limit of his insurance policy, $15,000, leaving the Fords with claims against their own policy for $235,000 (the full amount of the Fords underinsured provision in their policy of $250,000 with Nationwide less the $15,000 paid by Lawrence’s insurance company).
The action was filed in the superior court in Cumberland County, Maine, and removed by Nationwide to the United States District Court for the District of Maine. The jury returned a verdict that both drivers had been negligent, and that the negligence of Susan Ford had been greater than the negligence of Lawrence. Under Maine law this meant that Nationwide prevailed and the plaintiffs got nothing.
I. The Facts
Susan Ford and her two sisters had a 6:00 a.m. flight from Las Vegas, Nevada to Phoenix, Arizona op March 6, 2000. The sisters decided to return their rental car on the way to the airport. To that end, they hired a taxi to drive with them to the rental car agency and then drive all three to the airport. The hired cab was driven by Alvin Reekie (“Reekie”). One of the sisters rode in the taxi; Susan Ford and the other sister rode in the rental car, which was driven by plaintiff Susan Ford. The two drivers became lost and could not find the rental agency and they pulled over to the side of Tropicana Boulevard, a six-lane highway. Reekie radioed his dispatcher to get directions to the rental car agency. After getting directions, he told Susan Ford and her sister to follow him.
Although there is some conflict between the parties about what happened next, there can be no question that the rental car was hit broadside by a pickup truck driven by Lawrence as Susan Ford attempted to turn across the highway. Before the collision, Lawrence attempted to avoid the car and slammed on his brakes, leaving skid marks of 43 feet. Susan Ford and her sister were seriously injured. Lawrence submitted to a blood-alcohol test two hours after the accident which revealed a blood-alcohol content of .115%, which exceeded the proscribed limit. He was subsequently charged with driving under the influence of alcohol. This was part of the evidence that was submitted to the jury.
II. The Issues
We consider the issues in the order set forth in appellants’ brief.
A. The Admissibility of John Meserve’s Expert Testimony
The plaintiffs contend that the district court improperly admitted the testimony of Nationwide’s accident reconstruc*9tion expert John Meserve (“Meserve”). Although the plaintiffs do not attack Me-serve’s reasoning or methodology, they emphatically argue that his testimony lacked a proper foundation. Plaintiffs contend that Meserve’s testimony should have been excluded because it was impossible to determine: (1) the path and starting position of the rental car when it began to turn across Tropieana Boulevard; (2) the speed of the rental vehicle when first seen by Lawrence; (3) the speed of Lawrence’s truck when he first saw the rental vehicle and the speed of Lawrence’s truck between this point and the beginning of the skid marks; and (4) the position of Lawrence’s truck at the moment Lawrence saw the taxi and rental car.
The admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), provides guidance to a district court for determining the admissibility of expert testimony. See Seahorse Marine Supplies v. P.R. Sun Oil Co., 295 F.3d 68, 80 (1st Cir.2002). Under Daubert, the district court functions as a gatekeeper and is assigned “the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at 597, 113 S.Ct. 2786. While the district court has “considerable leeway” in determining reliability, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), credibility determinations and the weight of the testimony are the jury’s responsibility.
Because the exact inquiry undertaken by the district court will vary from case to case, the district court need not follow any particular procedure in making its determination. See United States v. Diaz, 300 F.3d 66, 73 (1st Cir.2002). A district court’s rulings regarding the reliability of an expert’s opinion will only be reversed where there is a “meaningful error in judgment.” Ruiz-Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 83 (1st Cir.1998). Accordingly, our review is for abuse of discretion. See Seahorse, 295 F.3d at 81.
1. The Path and Starting Position of the Rental Car
Contrary to the arguments raised by the plaintiffs, Meserve’s determination of the starting position of the rental vehicle was not based upon a “wholly speculative assumption,” but upon the physical evidence. Meserve examined the final resting position of the rental and Lawrence vehicles after the collision. Meserve then performed forty timing tests at the accident site to determine how long it would take a vehicle to travel from the curb to the point of impact. Based on the results of this testing, Meserve concluded that the rental vehicle must have moved in the path of an arc to have collided with the Lawrence vehicle. Consequently, Meserve used the path of the arc as his foundation to determine the starting position of the rental vehicle. Although the gist of plaintiffs’ argument is that this evidence was “shaky,” their challenges to Meserve’s opinion were properly directed toward its *10weight and not its admissibility. “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786. Plaintiffs vigorously cross examined Meserve on his conclusions. The district court did not abuse its discretion in admitting Meserve’s testimony on this issue.
2. The Speed of the Rental Vehicle When First Seen by Lawrence
To determine the speed of the rental vehicle when Lawrence first saw it, Me-serve first used the “crush data” analysis. This involves an analysis of the damage sustained by a vehicle as a result of being struck by another motor vehicle. The information about the damage to the rental car, its location and extent was furnished by plaintiffs to defendant. Meserve then conducted a further analysis called “conservation of momentum” to determine the speed at which both vehicles were traveling at the time of impact. The data used in the “conservation of momentum” analysis was: the angles of the two vehicles at impact; the deflection after impact; the rotation of the rental car; the distance both vehicles traveled after the collision; and the weight of each vehicle. This analysis resulted in a speed at impact which was in the upper range produced by the “crush data” analysis.
Based on his assumptions and computations, Meserve’s expert opinion was that Lawrence would have had 1.5 seconds in which to see the rental car and react. Based on all of this data, Meserve concluded that the speed of the rental vehicle was approximately 10 miles an hour when Lawrence first saw it.
The Fords countered that the data they provided Meserve concluded that the rental vehicle was moving between 5-10 miles per hour. Meserve disagreed with this conclusion explaining that, in his opinion, there was no credible evidence to suggest that the rental car was traveling at a speed of less than 10 miles per hour. He further observed that a slower speed was inconsistent with his “conservation of momentum” analysis. Again, plaintiffs’ argument goes to the weight of the evidence, not its admissibility. We are therefore satisfied that the district court did not abuse its discretion in allowing this opinion.
3. The Speed of Lawrence’s Truck Just Prior to the Collision
Meserve estimated that Lawrence was traveling slightly faster than 45 miles per hour when he first saw the rental vehicle. This estimate was based upon the speed of Lawrence’s truck when it began to skid and Lawrence’s deposition testimony. At his deposition, Lawrence testified that his range of speed was between 45 to 55 miles per hour when he first saw the rental vehicle. Contrary to the Fords’ suggestion, it was not improper for Meserve to rely in part on Lawrence’s deposition testimony to reach his conclusion. See e.g., Mitchell v. United States, 141 F.3d 8, 16 (1st Cir.1998); see also Clark v. Chrysler, 310 F.3d 461, 471 (6th Cir.2002) (expert’s opinion reliable where his testimony in the case was based, inter alia, on the depositions in the case); Miles v. General Motors Corp., 262 F.3d 720, 724 (8th Cir.2001) (same). Meserve determined that Lawrence’s speed was approximately 45 miles per hour between the time he perceived the Ford vehicle and before he began to skid. To reach this conclusion, Meserve relied on his knowledge of physics and compared the Fords’ crush data with the length of the skid marks. We rule that the crush data and the length of the skid marks provided a reliable basis *11for Meserve to form an opinion on Lawrence’s speed. See Quintana-Ruiz v. Hyundai Motor Corp., 303 F.3d 62, 65 (1st Cir.2002) (accident reconstruction expert determined vehicle’s speed before driver applied brakes based on the damage sustained by the car and the length of the skid marks).
4. Lawrence’s Location at the Moment He Saw the Taxi and Rental Car
Meserve calculated Lawrence’s location at the moment he saw the taxi and rental car using an equation called “back engineering.” The speed Meserve used in this calculation was 45 miles per hour. The Fords attack Meserve’s use of 45 miles an hour in this equation for the same reasons as stated above. As discussed, we are satisfied that the facts Meserve used to determine the speed were reliable. Accordingly, we are satisfied that the calculation in question here was based upon reliable data. Consequently, the district court did not abuse its discretion in allowing this testimony.
We close our discussion of the expert testimony by noting that plaintiffs had retained an accident reconstruction expert but, after the production of his report and on the eve of his scheduled deposition, plaintiffs withdrew their expert as a trial witness.
B. Excluded Portions of Alvin Reekie’s Deposition Testimony
1. The “Stipulation ”
Prior to trial, Nationwide agreed to concede damages in toto and pay the policy limits in the event that plaintiffs won on the issue of liability. The district court ruled, over the Fords’ objection, that evidence relating to damages was unnecessary, and therefore need not be tried. The district court therefore excluded portions of Reekie’s testimony that related to the severity of Susan Ford’s injuries. On appeal, the Fords maintain that the district court abused its discretion when it forced them to accept this, in the Fords’ parlance, “stipulation” because they claimed the severity of the damages was probative on the issue of liability. We review the district court’s evidentiary rulings for abuse of discretion. See Walton v. Nalco Chem., 272 F.3d 13, 24 (1st Cir.2001).
Rule 16 of the Federal Rules of Civil Procedure provides that a trial court has the authority to narrow the issues for trial. See Rogan v. Menino, 175 F.3d 75, 80 (1st Cir.1999) (“To be sure, Rule 16 permits a court to dispose of ... issues that do not warrant a full-dress trial”). Here, we are satisfied that the district court did not abuse its discretion. As the district court observed, “this was not a stipulation that required agreement; it was an outright concession.” Accordingly, we agree that it was unnecessary to try the issue of damages. In any event, the jury did hear some evidence on the issue of damages that was in fact probative of liability: Ford’s sister testified that she heard a “big crash” and that she was in hysterics; Lawrence testified that Susan Ford and her sister, Shirley Pole, who was in the rental car, were injured and that they were being attended to by emergency personnel; and Reekie testified that he thought the “girls could have been killed” and that he was “concerned about the girls” and “shook up.” The district court did not abuse its discretion in limiting the damages issue.
2. Alvin Reekie’s Testimony
On appeal, the Fords maintain that the district court abused its discretion when it accepted Nationwide’s concession and accordingly redacted portions of Reekie’s testimony. The Fords argue that the exclusion of this testimony enabled Nationwide to impeach the credibility of Reekie *12yet deprived them of an opportunity to fully rehabilitate him. The record shows that Reekie neglected to tell the police at the scene that Lawrence had been driving with his headlights off in the pre-dawn darkness. Reekie, however, testified at his deposition that the truck’s headlights were off at the time of the accident. Reekie’s deposition was taken 19 months after the accident. Nationwide undertook to impeach Reekie’s credibility by suggesting that his failure to tell the police about the headlights at the time of the accident was really an indication that Lawrence had the headlights on just prior to the collision. The plaintiffs wanted to argue that the taxi driver failed to mention the pick-up truck’s headlights because he was greatly distracted by the life-threatening injuries to Susan Ford and her sister. For this reason, plaintiffs argued that the extent of the injuries to Susan Ford and her sister should have been allowed in evidence. We quote the findings and rulings by the district court on this issue:
In fact, before the trial was over the jury was well aware that this was a very serious accident. They heard Susan Ford’s sister, Paula Koveleski, testify that she turned to look after she heard a “big crash,” that she was in hysterics at the accident scene and that she thought her sisters were dying. David Moody, one of the police officers who investigated the accident, testified (by deposition) that there was extensive damage on the left side of Susan Ford’s vehicle and that the accident involved injuries. Kevin Lawrence agreed that it was “a pretty serious accident,” and testified that both of his air bags deployed in the collision and that he had to kick his door open before he could exit his truck. He also testified that Susan Ford and Shirley Pole were injured and that they “were being attended to by emergency personnel.” In addition, the jury heard the stipulation that, because of her injuries, Susan Ford was unable to recall the accident.
Furthermore, the jury was not forced to rely on this evidence when assessing the cab driver’s testimony. The cab driver, himself, testified about the severity of the accident and its effect on his mental state. They heard him testify (by deposition) that he thought the “girls could have been killed,” that his passenger, Paula Koveleski, was “hysterical,” and that he was upset and nervous. Several times he testified either that he did not recall certain details or that he did not report them to police because he was “more concerned about the girls,” “shook up,” or because of “the pressure [he] was under.”
Thus, the jury heard enough evidence for the plaintiffs’ lawyer to pursue his theory of why the cab driver earlier failed to tell the police that Kevin Lawrence’s headlights were off. The jury simply did not find it persuasive. (The plaintiffs’ lawyer himself challenged the cab driver’s credibility on another part of the evidence, namely, how he made the change of direction on Tropicana.)
(citations to the record omitted). As we have already explained, under the Federal Rules of Evidence the standard of review for the admission or exclusion of evidence is abuse of discretion. See Miller v. Town of Hull, Mass., 878 F.2d 523, 529 (1st Cir.1989). We cannot find that the district court abused its discretion in excluding the full panoply of the injuries to Susan Ford and her sister.
Appellants make a rather involved argument that the abuse of discretion rule as to the trial judge’s exclusion or omission of evidence under Federal Rule of Evidence 403 is overridden by common law practice. This contention is plainly incorrect; the *13Federal Rules of Evidence govern. On appeal, the appellants also refer to Federal Rule of Evidence 613(b) which states in pertinent part:
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.
•Appellants did not raise this Rule at trial, so the argument is waived. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir.1999). The Rule does not, in any event, help appellants.
What is at issue here is Reekie’s failure to tell police during their investigation immediately after the accident that Lawrence’s headlights were not on. Reekie testified inter alia by deposition taken 19 months after the accident as follows:
So I turned in the side street, came back out. And I just made a U turn, but as I was going west on Tropicana this pickup truck come flying by. Swear to God he did not have his headlights on. And he was going at a high rate of speed. And the poor girls, they just made a U turn to follow me; smacked right into them.
On the cross examination part of Reekie’s deposition the following question was asked of him relative to his failure to inform the police that the truck’s lights were not on just prior to the accident: ‘Well, Mr. Reekie there is no mention in your statement, there is no mention of the accident report.” Reekie interrupted and stated:
I was still trying to cut the girls out of the car. I was really upset. Not as mad but I felt bad for the girls. It took them an hour or so to cut them girls out of the car, for crying out loud.
The underlined sentences were redacted by the district court before the deposition answer was read to the jury.
As the district court pointed out in its ruling on the admission of damages, there was ample evidence for the jury to realize that this was a serious accident and the plaintiff Susan Ford had been gravely injured. We rule that the redaction was not an abuse of discretion. Obviously the district court felt the jury should decide the issue of liability and not be swayed by the injuries suffered by Susan Ford and her sister.
The judgment below is affirmed.
. Dennis Ford seeks consequential damages. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217236/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL *15REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OP THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 12th day of March, two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
In August 1998, Defendant-Appellant Lawrence Benedict was indicted on two counts of shipping child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(1), (a)(2) and (b)(1), and conspiracy. A co-defendant, Mikel Bolander, pleaded guilty in August 1999. In due course the case was set for trial. Not long before trial was scheduled to begin, health problems forced Defendant’s counsel to withdraw, and so new counsel were retained and the trial was re-scheduled.
Two weeks before the new trial date, Defendant was allowed to inspect some of the material seized from his home. As he was about to leave the room where the materials were stored, guards allegedly discovered that he had taken two computer diskettes and put them in his pocket. Defendant was arrested for attempted theft of materials seized under a search warrant.
In the days following this arrest, Defendant and the government negotiated a plea agreement. Pursuant to that agreement, Defendant entered a plea of guilty to one count of the child pornography indictment, and the government dismissed the attempted theft charge and the other counts in the indictment. Prior to sentencing, Defendant retained a new attorney and a new computer forensics expert, and made a motion to withdraw his guilty plea. The district court granted a hearing on the motion, took testimony, inter alia, from Defendant’s prior lawyers, and, in relation to the motion, heard additional arguments on Defendant’s claim that his prior lawyers had rendered him ineffective assistance. The court then denied the motion, and subsequently denied a motion for reconsideration. The court sentenced Defendant principally to 46 months’ incarceration, which he is presently serving.
Defendant appeals the district court’s denial of his motion to withdraw his guilty plea, and its denial of his motion for reconsideration of that decision. Defendant claims that, in denying the motions, the district court abused its discretion because (1) Defendant had made a substantial showing of actual innocence, (2) there was no undue delay in bringing the motion to withdraw the plea, (3) Defendant’s admissions of guilt at the plea allocution were “ambiguous at best,” and (4) Defendant’s trial counsel had misrepresented his actual exposure were he to proceed to trial.
The Federal Rules of Criminal Procedure provide that a defendant may withdraw a guilty plea prior to sentencing upon showing a “fair and just reason.” Fed. R.Crim.P. 11(d)(2)(B) (2003). “Although this standard implies that motions to withdraw prior to sentence should be liberally granted, a defendant who seeks to withdraw his plea bears the burden of satisfying the trial judge that there are valid grounds for withdrawal....” United States v. Gonzalez, 970 F.2d 1095, 1100 (2d *16Cir.1992) (internal quotations marks and citations omitted). We review a district court’s denial of Defendant’s motion for leave to withdraw a guilty plea “for abuse of discretion; its findings of fact are reviewed for clear error; and whether it applied the correct legal principles is a matter of law to be reviewed de novo.” United States v. Gregory, 245 F.3d 160, 164 (2d Cir.2001).
In its decision and order denying Defendant’s motion to withdraw his guilty plea, the district court made several findings of fact. The court determined (1) that Defendant’s lawyers told him, before the plea hearing, that “his admissions concerning guilt should only be made if they were true,” that they explained the plea agreement to Defendant in detail, and that they advised Defendant that neither the government nor the court would entertain an Alford plea; (2) that Defendant’s lawyers believed that a trial was not in Defendant’s best interest, given the number of visual depictions of child pornography that the government had obtained, the government’s “compelling” proof against Defendant, and Defendant’s theft of the computer disks; (3) that Defendant’s testimony at the hearing concerning the circumstances surrounding the guilty plea was “false and perjurious,” and, in particular, that Defendant’s claim that he had not read the plea agreement was “a total fabrication”; and (4) that, at the plea hearing, Defendant showed “no confusion, ambiguity, or hesitation of any kind ... when he answered, under oath, all of the questions posed to him by the Court concerning his acceptance and understanding of the plea agreement.” Based on our review of the record, we cannot conclude that these findings are clearly erroneous.
Defendant objects to the district court’s failure to hold a hearing on his claim of actual innocence, in light of “newly discovered technical evidence” that, he says, raised doubts about the government’s case. But the court concluded that this claim simply challenged the strength of the government’s case and therefore that no hearing was necessary because, under our cases, such a claim would not provide a basis for withdrawing the guilty plea. “The fact that a defendant has a change of heart prompted by his reevaluation of either the Government’s case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea.” Gonzalez, 970 F.2d at 1100 (citing United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.1985); United States v. Michaelson, 552 F.2d 472, 476 (2d Cir.1977)). This was so, the district court found, in particular because Defendant’s claims of innocence directly contradicted his “consistently and affirmatively stated ... understanding concerning the plea agreement and his acceptance of it.” Cf. United States v. Maher, 108 F.3d 1513, 1529 (2d Cir.1997) (“The district court may require an evidentiary hearing if the defendant has presented some significant questions concerning the voluntariness or general validity of the plea, but it need not hold such a hearing if the movant’s allegations merely contradict his earlier statements made under oath at his plea allocution.” (internal quotation marks and citation omitted)).
The district court also rejected Defendant’s claims that he received ineffective assistance of counsel, finding that the claims were “nothing more than after-the-fact criticisms of reasoned strategic judgments made by trial counsel.” As noted above, the court heard testimony from Defendant and from his trial counsel and “credited] defense counsel’s testimony,” while determining Defendant’s testimony “to be one of the most blatant examples of false testimony [it] had ever heard.” We cannot conclude that these findings were *17clearly erroneous, nor can we hold, based on those findings, that the district court abused its discretion in denying Defendant’s motion.
We have considered all of Defendant’s remaining claims and find them meritless. We therefore AFFIRM the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217237/ | Summary Order
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 27th day of March, two thousand three.
UPON DUE CONSIDERATION of this appeal from the United States District Court for the Eastern District of New York (Gleeson, John, /.), it is hereby
ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED.
The Petitioner, Alexander McCarthy, appeals from the judgment of the District Court denying his petition for habeas corpus. McCarthy’s claim is grounded in his allegation that the New York state trial court violated his Sixth Amendment right to a public trial when it ordered the courtroom partially closed during the testimony of an undercover officer. He also claims that the state court similarly violated the Sixth Amendment when it refused to allow his mother to enter the courtroom after the undercover officer’s testimony had commenced, despite its own earlier determination that, with certain accommodations, her presence did not threaten the effectiveness or safety of the testifying officer. Because we conclude that the state court’s decisions were not contrary to or unreasonable applications of federal law, as established by the United States Supreme Court, we must affirm.
*19At the outset, we reject McCarthy’s argument that we can avoid applying the highly deferential standard of legal and factual review mandated by the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §§ 2254(d), (e) (2000). McCarthy argues that such deferential review is only required “with respect to any claim that was adjudicated on the merits in State court proceedings.” Id. § 2254(d). He points to language in the Appellate Division’s rejection of his Sixth Amendment claim on direct appeal as evidence of the fact that his claim was not, in fact, decided on its merits. But that argument can hardly help McCarthy; if his claims were not decided on the merits, then they must have been procedurally barred. See Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir.2002). In that case, we could not now consider them at all, unless he were to show cause and prejudice, see Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which he has not attempted to do. Indeed, since the time McCarthy’s brief was filed, we have rejected this same argument by another petitioner who relied on identical Appellate Division language. See Ryan v. Miller, 303 F.3d 231, 245-46 (2d Cir.2002).*
Therefore, our review of the state court’s decision is governed by AEDPA. First, we must presume that the state court’s factual findings are correct, and can overturn them only if the petitioner demonstrates clear and convincing evidence of their incorrectness. Yung v. Walker, 296 F.3d 129, 134 (2d Cir.2002). We may grant the writ only if the state court’s 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,” id. § 2254(d)(2). “An unreasonable application of federal law is____[an] increment of incorrectness beyond error,” Yung, 296 F.3d at 135 (citing Williams v. Taylor, 529 U.S. 362, 409-12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)) (internal quotations omitted), and can include an “unreasonable refusal ‘to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed,”’ id. (quoting Kennaugh v. Miller, 289 F.3d 36, 45 & n. 2 (2d Cir.2002)).
The state trial court’s initial decision partly to close its courtroom was not unreasonable. A court may only limit the Sixth Amendment right to public trial where “the party seeking to close the hearing ... advance[s] an overriding interest that is likely to be prejudiced” absent closure, and “the closure [is] no broader than necessary to protect the interest.” Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). In addition, the court must engage in express deliberation and fact-finding before ordering the closure, considering “reasonable alternatives to closing the proceeding” that are proposed by counsel, see id.; Sevencan v. Herbert, 316 F.3d 76, 85 (2d Cir.2002); Ayala v. Speckard, 131 F.3d 62, 71-72 (2d Cir.1997) (en banc), cert. denied, 524 U.S. 958, 118 S.Ct. 2380, 141 L.Ed.2d 747 *20(1998), and making findings “adequate to support the closure,” Waller, 467 U.S. at 48, 104 S.Ct. 2210.
Here, the state trial court heard evidence in support of the State’s motion to close the courtroom during the testimony of its undercover officer, known to us only as “UC-2499.” Asked, “Would you be returning to the vicinity of East 21 and Cortel you?” the officer replied, “I assume, I will. I would be.” UC-2499 also stated that he routinely took steps to protect his identity when entering court, had one or two open undercover cases, and had been threatened with violence in the past while working undercover. Based on this evidence, the trial court expressly found, “[the officer] expects to return to the immediate vicinity of Cortelyou Road and East 21 Street, which is exactly the location of this buy---- Now, if it were Brooklyn South alone, I would agree with [McCarthy], but, I believe, the testimony is to the effect that he would expect to return to that very neighborhood, and possibly, specifically, that location.” The court also not only discussed, but actually agreed in significant part with, the more limited closure suggested by McCarthy, i.e., that his mother and girlfriend remain in the courtroom seated at a location where they would be able to hear but not see the undercover officer as he testified.2
Based on these facts, we believe that the court’s initial decision to close the courtroom was entirely correct. We read no equivocation in the officer’s statement that he “would be” returning to the intersection where he arrested McCarthy. If any was implied by his tone or manner, the trial court certainly could have seen and accounted for it. Therefore, we cannot say that its determination of the facts was unreasonable. Turning to the reasonableness of the court’s legal determination, we have repeatedly held that closures under circumstances similar to those disclosed by the testimony of UC-2499 satisfied the first prong of the Waller test. See, e.g., Brown v. Artuz, 283 F.3d 492, 501-02 (2d Cir.2002); Nieblas v. Smith, 204 F.3d 29, 33 (2d Cir.1999); Ayala, 131 F.3d at 72. While it is true that we have said “the [S]tate’s obligation to show an overriding interest cannot be met by a proffer of mere speculation,” English v. Artuz, 164 F.3d 105, 109 (2d Cir.1998), the trial court reasonably found that the officer’s testimony was not merely speculative. The closure at its outset was no wider than necessary; once the court determined that a small number of spectators could remain without jeopardizing the secrecy of UC-2499’s identity, it allowed those persons to stay. And, as we have noted, the court made express findings on both of these factors.
While it is somewhat less clear whether the trial court should have refused to admit McCarthy’s mother when she belatedly arrived in the midst of the proceedings, we cannot say, ultimately, that its decision involved an unreasonable application of Waller. Again, the trial court initially determined that McCarthy’s mother and girlfriend should be allowed in the court, because otherwise the closure would not have been tailored to the narrowest extent necessary to protect the State’s overriding interest in secrecy. In so ruling, the court made clear its expectation that the women would be seated in the appointed courtroom location-out of the sightline of both the judge and witness-before the officer took the stand and that they would remain there throughout his testimony. In a number of exchanges with the court before the officer entered the *21courtroom, defense counsel undeniably suggested that both women were so seated. Apparently, that was not the case, but it was not until a sidebar conference several minutes into the undercover officer’s testimony that defense counsel alerted the court to the fact that McCarthy’s mother was outside the courtroom seeking to gain admittance. At that point, the court could not have admitted her without either risking unmasking UC-2499 or interrupting the course of his testimony. In tailoring a closure, a court need not consider alternatives that would threaten other overriding interests. Cf. Ayala, 131 F.3d at 71-72 (“[W]e do not believe that the Supreme Court wanted trial judges selecting the alternative of limited closure to consider further alternatives that themselves pose substantial risks to a fair trial for the defendant.”). “[P]reventing jurors from being distracted during the testimony of a critical trial witness qualifies as an ‘overriding interest’ justifying a restriction on courtroom access.” Williams v. Artuz, 237 F.3d 147, 152-53 (2d Cir.) (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210), cert. denied, 534 U.S. 924, 122 S.Ct. 279, 151 L.Ed.2d 205 (2001).
Thus, in order to conclude that the trial court’s closure was not narrowly tailored, we would have to hold, in effeet, that there was no significant danger that a recess would have distracted the jurors. The trial judge found that the “circumstances” and “logistics” of clearing the courtroom made taking a recess a relatively complicated affair. We certainly are not in a position to gainsay that determination. See 28 U.S.C. § 2254(e). A court could reasonably infer from this premise that taking a recess would have unduly distracted the jury. If so, then it could also reasonably have concluded that the court’s partial closure was still narrowly tailored, despite the fact that McCarthy’s mother was not admitted. While we may or may not have reached the same balance had we been in the trial court’s position, in light of our precedents construing what is “clearly established” under the Supreme Court’s Sixth Amendment precedents, we cannot say that the trial court’s decision was an unreasonable application of the Waller principles.
Finally, McCarthy’s brief can be read to argue that his mother should have simply been permitted to enter, because, even if she had seen UC-2499, she was no threat to his safety or effectiveness. We have not spoken with perfect consistency on the showing the State must make in excluding family members under a Sixth Amendment analysis. Compare Sevencan, 316 F.3d at 85-86, with id. at 92 (Pooler, J., concurring) (arguing that the majority’s opinion “conflicts with Yung”). However, even under the more demanding elaborations of Waller we have suggested, the trial court here was justified in concluding that McCarthy’s mother represented a threat to UC-2499’s effectiveness. For example, in Vidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994), cert. denied, 513 U.S. 1102, 115 S.Ct. 778, 130 L.Ed.2d 672 (1995), we rejected the State’s claim that an undercover witness’s safety might be threatened if the defendant’s parents learned the witness’s identity. Critical to our analysis was our observation that the parents “did not frequent the vicinity [where the officer was operating],” id. at 68, and therefore that “there was little chance that the parents would have encountered [the officer] during an undercover operation,” id. at 69. Similarly, in Yung, we implied that the State probably could make an adequate showing if it could show a “likelihood of encounter” with the family. 296 F.3d at 136 n. 1. In this case, McCarthy’s mother lived two and a half blocks from the site of the arrest, where, again, UC-2499 expected to return. While there is certainly no evidence McCarthy’s mother would have attempted deliberately to harm UC-2499, the possibility that she would recognize *22him on the street and disclose his identity as a police officer to others, perhaps inadvertently, was inherent in her very proximity. That would, at the least, limit his effectiveness. The state court nevertheless tried to accommodate McCarthy’s Sixth Amendment interests by permitting his mother and girlfriend to remain in the courtroom during the undercover’s testimony, provided they were seated in a special location before the witness took the stand. McCarthy having agreed to this arrangement, he cannot now fault the trial court for his mother’s failure to abide by its terms.
Therefore, we cannot say the state trial court’s decision was at any point contrary to, or an unreasonable application of, the Supreme Court’s Sixth Amendment jurisprudence. Accordingly, for the reasons stated above, the judgment of the District Court is hereby Affirmed.
At oral argument, McCarthy argued that our decision in Miranda v. Bennett, 322 F.3d 171 (2d Cir.2003), qualified the holding of Ryan. We disagree. It is plain from the language of Miranda that we held, as in Ryan and Jenkins, that there are two alternative dispositions of a petitioner’s claims in state court: "either without merit or procedurally barred.” Miranda, 322 F.3d at 177-78. Therefore, if "a given claim [is] properly preserved for appellate review, we will conclude that it fell into the “without merit” part of the disjunct,” id., thereby subjecting it to AEDPA deferential review.
. The trial court rejected McCarthy’s suggestion that his girlfriend’s son, too, could be allowed to stay in the courtroom. McCarthy’s petition does not challenge the exclusion of the child. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217238/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 28th day of March, Two Thousand and Three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the decision of said district court be and it hereby is AFFIRMED.
Plaintiff-appellant Feliberto Rivera, Jr. appeals from a decision and order entered on November 23, 2001 in the United States District Court for the Northern District of New York which, inter alia, denied his motion for a new trial. Rivera had sought civil damages for injuries resulting from several incidents in which excessive force was allegedly used against him while he was a prisoner at Coxsackie Correctional Institution. The jury found that defendant Horton used excessive force but that it was not the proximate cause of appellant’s injuries. The jury also found that defendants Chase and Spath used excessive force against Rivera in two incidents and thereby proximately caused injury, but awarded only nominal damages of one dollar against each and declined to award punitive damages. Rivera argues that the verdict should be set aside and a new trial ordered because it is clear that Horton’s actions were the proximate cause of injuries, and that the jury failed to award sufficient compensation because it inappropriately considered his past criminal conviction.
A denial of a motion for a new trial based on a “weight-of-the-evidence” contention is not reviewable, but we may “review the ruling to the extent that it rejected the related contention that the undisputed evidence entitled [the plaintiff] to a compensatory award as a matter of law.” Haywood v. Koehler, 78 F.3d 101, 104 (2d Cir.1996). In doing so, we review for abuse of discretion. See Amato v. City of Saratoga Springs, New York, 170 F.3d 311, 314 (2d Cir.1999).
We have explained that “a finding of excessive force does not, as a matter of law, entitle the victim to an award of compensatory damages.... Of course, if it is clear from the undisputed evidence that a plaintiffs injuries were caused by a defendant’s use of excessive force, the jury’s failure to award some compensatory damages will be set aside and a new trial ordered.” Haywood, 78 F.3d at 104. Here, the jury could have reasonably concluded that Horton’s excessive force was not the proximate cause of appellant’s injury, but that instead Rivera’s injuries resulted from Horton’s earlier justifiable use of force in restraining Rivera. Similarly, the jury could have reasonably concluded that although Spath and Chase used excessive force that proximately caused Rivera’s injuries, Rivera was only entitled to nominal damages. Since there was no testimony as to the extent or severity of Rivera’s injuries from the incidents in which the jury found Spath and Chase used excessive force, the jury could reasonably have con-*24eluded that Rivera did not suffer a compensable injury. Thus, the district court did not abuse its discretion in denying the motion for a new trial.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217241/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 2nd day of April, Two Thousand and Three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Order of the district court is AFFIRMED.
Plaintiff-appellant Dr. Fernando Commodari appeals from a final judgment entered March 22, 2002 in the United States District Court for the Eastern District of New York (David G. Trager, Judge), dismissing Commodari’s “hybrid” Labor Management Relations Act § 301/duty of fair representation action and employment discrimination action pursuant to 42 U.S.C. §§ 1981 and 1983 and Titles VI and VII of the Civil Rights Act of 1964, against both Defendants, the Long Island University (“LIU”) and the Long Island University Faculty Federation (the “Union”). The district court also denied Commodari’s motion for injunctive relief.
In a Revised Memorandum and Order dated March 31, 2000, Commodari v. Long Island Univ., et al., 89 F.Supp.2d 353 (E.D.N.Y.2000) (“Commodari I”), the district court granted both Defendants’ summary judgment motions on Commodari’s § 301/duty of fair representation claim, the Union’s motion for summary judgment on Commodari’s discrimination claims, and LIU’s motion to dismiss on Commodari’s *30§ 1988 and Title VI claims. The district court also determined that, with the exception of a single employment decision taken in November 1998, all employment decisions forming the basis of Commodari’s employment discrimination claim against LIU were untimely. It dismissed the Title VII claim to the extent that it was based on these predicate acts. Remaining after Commodari I were Commodari’s limited Title VII employment discrimination claim and his § 1981 action, both asserted against LIU.
In a subsequent unpublished Memorandum and Order dated March 20, 2002, Commodari v. Long Island Univ., et al., 99 CV 2581 (E.D.N.Y. March 20, 2002) (“Commodari II”), the district court granted LIU’s motion for summary judgment on the remainder of Commodari’s claims. We find no error in the district court’s dismissal of Commodari’s claims.
Turning first to the denial of injunctive relief, we review for an abuse of discretion. See New York City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65 (2d Cir.2000). The district court did not abuse its discretion when it concluded Commodari failed to establish a likelihood of success on the merits.
Reviewing de novo the district court’s grant of summary judgment, Singer v. Fulton County Sheriff, 63 F.3d 110, 114 (2d Cir.1995), we view the evidence in the light most favorable to Commodari and draw all inferences in his favor, see Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996). For substantially the reasons set forth by the district court in Commodari I, we find that Commodari failed to adduce sufficient evidence in support of his § 301/ fair representation claim against both LIU and the Union to create a genuine issue of material fact for purposes of defeating summary judgment. We, like the district court, find it utterly implausible that Commodari’s termination marked a breach by LIU of the collective bargaining agreement and find no evidence that the Union acted in bad faith or in an arbitrary or discriminatory manner in violation of its duty of fair representation, as necessary to survive summary judgment on such a “hybrid” claim. See DelCostello v. International Bhd. of Teamsters, 462 U.S. 151, 163-64, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); see also Air Line Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991).
Regarding the remaining employment discrimination claims against the Union, we find Commodari adduced no evidence beyond mere eonclusory allegations to establish a prima facie case under § 1981 and Title VII, see Fed.R.Civ.P. 56(e), no state action by the Union, a private actor, to sustain his § 1983 action, see Ciambriello v. County of Nassau et al., 292 F.3d 307, 323, 324 (2d Cir.2002), and no evidence that the Union received federal financial aid for purposes of sustaining his Title VI claim, see Soberal-Perez v. Heckler, 717 F.2d 36, 38 (2d Cir.1983), cert. denied, 466 U.S. 929, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984). Accordingly, summary judgment was properly granted.
We review de novo the district court’s dismissal of Commodari’s claims against LIU in Commodari I for failure to state a claim, “taking all factual allegations in the complaint as true and construing all reasonable inferences in favor of the plaintiff.” Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir.2000). We, too, find dismissal of Commodari’s § 1983 and Title VI claims proper as Commodari failed to allege any facts establishing a nexus between his termination by LIU and any state action to sustain the former, see generally American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, *31148 L.Ed.2d 130 (1999) (§ 1983 action does not reach purely private conduct), or any nexus between his termination and a federally funded LIU program or activity to sustain the latter, see Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2d Cir.1981).
In addition to properly ruling that several predicate employment decisions underlying Commodari’s Title VII claim were untimely under 42 U.S.C. § 2000e-5(e)(l) (1994), the district court also correctly ruled in Commodari II that Commodari failed to adduce sufficient evidence to withstand summary judgment on his § 1981 and Title VII claims. Specifically, he failed to allege facts or adduce evidence establishing a prima facie case of intentional discrimination or retaliation or that LIU’s justifications were mere subterfuge. Summary judgment was properly granted.1
Finally, we turn to Commodari’s motion for sanctions. Commodari moved this Court in October 2002 to impose sanctions against LIU and the Union. Commodari alleges LIU’s counsel engaged in improper ex parte communications with a court law clerk in the Staff Attorney’s Office when it inquired about filing its appellate brief and appendix. Commodari also maintains that counsel for the Union has engaged in unethical communications with Commodari amounting to “scare tactics” in an attempt to force him to forego his lawsuit. We find Commodari’s claim to be wholly frivolous and deny his request for sanctions.
For the reasons stated above, the district court’s judgment dismissing Plaintiffs amended complaint is hereby AFFIRMED. Commodari’s request for sanctions is DENIED.
. Commodari also challenges on appeal the district court’s discovery rulings. These claims are without merit. Having determined that all substantive claims asserted by Commodari were properly dismissed, we see no need to examine the district court’s discovery rulings in any depth. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217242/ | OPINION OF THE COURT
PER CURIAM:
Mary Ingram appeals her conviction and sentencing on several grounds. She alleges insufficiency of the evidence as to her convictions for conspiracy to defraud the United States and to commit substantive offenses against the United States, 18 U.S.C. § 371, wire fraud, 18 U.S.C. § 1343, money laundering, 18 U.S.C. § 1957, and tax evasion, 26 U.S.C. § 7201. She also alleges (1) constructive amendment of the indictment as to the wire fraud conviction and (2) error in the jury instructions as to the element of willfulness in regard to her conviction under 26 U.S.C. § 7201. Finally, she alleges that the District Court erred by refusing to grant a two-level minor role reduction under U.S.S.G. § 3B1.2. We affirm the judgment of the District Court.
When reviewing the sufficiency of the evidence to sustain a conviction, we must determine whether any rational jury could have concluded that the essential elements of the offense were present beyond a reasonable doubt, viewing the evidence in the light most favorable to the government. See United States v. Veksler, 62 F.3d 544, 551 (3d Cir.1995). The defendant alleges insufficiency of the evidence in two regards. First, the defendant alleges that the government failed to prove that Petro*33Plus was the relevant taxpayer. Contrary to the defendant’s assertion that insufficiency of proof as to this fact would be fatal as to each of the counts of conviction, we find that proof of this fact affects only her convictions for willfully attempting, 26 U.S.C. § 7201, and conspiring, 18 U.S.C. § 371, to evade federal taxes. In an appeal brought by one of Ingram’s codefendants, Enright, this Court rejected an identical claim, finding that the record showed that the government had provided overwhelming evidence at trial that PetroPlus was the relevant taxpayer. See United States v. Enright, 46 Fed.Appx. 66, 68 (3d Cir.2002). We agree, as the record before us supports that conclusion. The defendant next alleges that the evidence was insufficient to establish that she acted knowingly in her participation either in the conspiracy to evade a federal tax or in the related offense of wilfully attempting tax evasion. After thoroughly reviewing the record, we hold that the evidence was sufficient to support the jury’s verdicts on each of these charges.
The defendant also contends that removal of the word “PetroPlus” from the superseding indictment constituted a constructive amendment and was therefore a per se violation of the Grand Jury Clause of the Fifth Amendment. See United States v. Somers, 496 F.2d 723, 743 (3d Cir.1974). Constructive amendment occurs when the presentation of evidence and jury instructions modify essential terms of the charged offense in such a way that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the original indictment. See United States v. Bryan, 483 F.2d 88, 96-97 (3d Cir.1973). As the variance alleged by the defendant did not modify essential charging terms of the indictment, there was no constructive amendment here. The wire fraud statute punishes a participant in a scheme to defraud in which the participant acted with specific intent to defraud and used wire communications in furtherance of the fraudulent scheme. See 18 U.S.C. § 1343. Wire fraud is a crime “distinct from [its] underlying predicate acts and purposes and involve[s] additional harms.” United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991). The identity of the victim or co-perpetrators is not an essential element of the crime. See United States v. Trapito, 130 F.3d 547, 552 (2d Cir.1997). As the names of specific relevant victims or co-perpetrators are mere surplusage, we hold that the removal of the name PetroPlus from the indictment did not constitute a constructive amendment.
In regard to the alleged error in the jury instructions, we review the instructions as a whole, and in light of the evidence presented, determine whether the jury instructions fairly and adequately submitted the issues in the case to the jury. See United States v. Schneider, 14 F.3d 876, 878 (3d Cir.1994). In order to establish a violation of 26 U.S.C. § 7201, the government must prove that the defendant acted willfully. See United States v. Voigt, 89 F.3d 1050, 1089 (3d Cir.1996). Voluntary and intentional violation of a known duty constitutes “willfulness” for purposes of 26 U.S.C. § 7201, see United States v. Moses, 148 F.3d 277, 283 (3d Cir.1998), and the District Court instructed the jury accordingly. The defendant alleges error in the District Court’s instruction that “it is not required that you[, the jury,] find a particular defendant knew who was the proper taxpayer,” claiming that the instruction caused the element of wilfulness to be improperly submitted to the jury. This Court previously considered this alleged error in an appeal brought by one of Ingram’s coconspirators, Enright, and determined that the jury in*34struetions as a whole were acceptable. United States v. Enright, 46 Fed.Appx. 66, 70 (3d Cir.2002). In Enright’s appeal, we stated that “the government did not need to prove that Enright (or any of his coconspirators) knew the identity of the taxpayer in order to establish willfulness. The belief that someone other than PetroPlus owed the taxes did not constitute a defense to the crimes charged in the superseding indictment.” Id. We agree. As the evasion statute, 26 U.S.C. § 7201, prohibits a willful evasion of “any tax” by “any person,” including the tax of another, committed in “any manner,” see United States v. Townsend, 31 F.3d 262, 267 (5th Cir.1994), the government need not allege or prove that the defendant knew the identity of the relevant taxpayer in order to sustain a conviction for willful tax evasion. We therefore reject the Defendant’s request for reversal of her conviction under 26 U.S.C. § 7201.
Finally, the defendant alleges that the District Court erred by declining to grant her request for a downward adjustment under U.S.S.G. § 3B1.2. We exercise plenary review over the District Court’s application of the sentencing guidelines. See United States v. Brown, 250 F.3d 811, 818 (3d Cir.2001). We will only disturb the District Court’s determination as to the degree of the defendant’s participation, a factual matter, where the District Court’s conclusion was clearly erroneous. See United States v. Perez, 280 F.3d 318, 351 (3d Cir.2002). A defendant requesting a downward adjustment under U.S.S.G. § 3B1.2 must establish by a preponderance of the evidence that she played only a minor or minimal role in the offense committed. See United States v. Holman, 168 F.3d 655, 660 (3d Cir.1999). While the guidelines provide limited guidance as to how a District Court should determine whether a particular defendant played a minor role, we have recommended several factors for consideration. These factors include the: (1) nature of the defendant’s relationship to the other participants, (2) importance of the defendant’s actions to the success of the venture, and (3) defendant’s awareness of the nature and scope of the criminal enterprise. See United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.1991). The District Court did not recite the exact language of Headley but engaged in an equivalent analysis, concluding that the defendant was not a minor participant. Having reviewed the record, we conclude that the District Court’s refusal to downward depart was not clearly erroneous, and we affirm.
Based on the foregoing, we affirm the judgment of the District Court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217062/ | MEMORANDUM**
Federal prisoner Dyan Jones-Heim appeals pro se the district court’s order denying her motion for reconsideration pursuant to Fed.R.Civ.P. 60(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Sch. Dist. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993), and we reverse and remand.
The district court denied the Rule 60(b) motion because Jones-Heim’s claim that she lost good-time credits was barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), unta she proved that her conviction or sentence had been invalidated. This court has since held that a section 1983 action may be maintained where a habeas petition would be dismissed as moot because a prisoner has completed his sentence. See Nonnette v. Small, 316 F.3d 872, 876 (9th Cir.2002) (citing Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). That is the situation here. Jones-Heim has been released from prison and any habeas action she files would be dismissed as moot. Id. The intervening decision in Nonnette therefore appears to justify reconsideration pursuant to Fed. R. Civ. P 60(b)(6).
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217063/ | MEMORANDUM**
California state prisoner Raymond D. Jackson, Sr. appeals pro se the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that prison officials were deliberately indifferent to his medical needs. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s grant of summary judgment, Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.2002), and we affirm.
The district court properly granted defendants summary judgment because Jackson failed to show the existence of a genuine issue of material fact that prison officials’ withholding of his therapeutic diets caused him any injury. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir.2000) (“In a constitutional tort, as in any other, a plaintiff must allege that the defendant’s actions caused him some injury”).
The district court did not abuse its discretion in granting defendants summary judgment before ruling on Jackson’s pending discovery motions because Jackson failed to show that the evidence he sought existed and would preclude summary judgment. See Chance v. Pac-Tel Teletrac Inc., 242 F.3d 1151, 1161 (9th Cir.2001).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217067/ | MEMORANDUM**
Mario Chavez-Andrades appeals his 168-month sentence imposed following his guilty plea conviction to conspiracy to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Chavez-Andrade’s counsel has filed a brief stating that there are no arguable issues for review, and a motion to withdraw as counsel of record. No pro se supplemental brief or answering brief has been filed.
Our examination of the briefs and independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no issues warranting review. Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217069/ | *450MEMORANDUM**
Ricardo Bautista-Ramos appeals the seventy-seven month sentence imposed following his guilty plea conviction for illegal reentry by a previously deported alien in violation of 8 U.S.C. § 1826. We dismiss for lack of jurisdiction.
Bautista-Ramos contends he is entitled to a “horizontal” departure under U.S.S.G. § 4A1.3 because his criminal history category overstated the seriousness of his criminal conduct and the district court failed to consider mitigating facts underlying his prior convictions.
A district court’s discretionary refusal to depart from a prescribed sentencing guideline range is unreviewable on appeal unless the district court rested its decision on an erroneous belief that it lacked the authority to depart. United States v. Rivera-Sanchez, 222 F.3d 1057, 1064 (9th Cir.2000). Because the district court recognized its authority to depart, we lack jurisdiction to review Bautista-Ramos’s sentence. See id.
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217243/ | OPINION OF THE COURT
McKEE, Circuit Judge.
The Carteret Board of Education (the “Board”) appeals the district court’s grant of a new trial to Saad Radwan following a jury verdict that was partially in Radwan’s favor on various claims of discrimination. For the reasons that follow, we will reverse the district court’s order for a new trial.
Since we write only for the parties and the district court we need not detail the factual or procedural history of this appeal. However, it is helpful to briefly state the procedural context of the Board’s appeal in order to explain our decision to reverse the district court’s order.
I.
After filing claims of discrimination with the New Jersey Division on Civil Rights, Radwan filed the instant complaint against *36the Board in the District Court of New Jersey alleging illegal discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et. seq. (“NJLAD”); and the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq.; as well as illegal discrimination on the basis of workers’ compensation claims in violation of N.J.S.A. 84:15-39.1.
On April 2, 2001, the jury returned a verdict that was partially in Radwan’s favor. However, the jury ruled in favor of the Board on Radwan’s claim for punitive damages under the NJLAD. The jury also decided that Radwan had proven punitive damages under Title VII by a preponderance of the evidence, and awarded him $175,000 in punitive damages on that claim. For reasons that are not apparent on this record, the district court never entered judgment on that verdict.
Thereafter, on April 3, 2001, the Board submitted a proposed form of judgment to the district court molding the damage award to zero dollars based upon the Board’s claim that Title VII did not allow punitive damages against a government agency or political subdivision. See 42 U.S.C. § 1981a(b)(l). On April 12, 2001, the Board filed a motion for judgment notwithstanding the verdict (“judgment n.o.v.”) asking the court to set aside Rad-wan’s punitive damage award.1 On May 21, 2001, the district court denied the Board’s motion for judgment n.o.v., and ordered a new trial. The court also set aside Radwan’s punitive damage award as it was based on an erroneous charge of law regarding the restriction on Title VII and punitive damage awards against government agencies or political subdivisions. The Board now appeals that order.
II.
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). 28 U.S.C. § 1291 provides circuit courts of appeals with jurisdiction “of appeals from all final decisions of the district courts of the United States” and with jurisdiction of appeals from a discrete class of interlocutory decisions not relevant to this appeal.
The district court here ordered a new trial sua sponte pursuant to Federal Rule of Civil Procedure 59(d). That Rule provides:
No later than 10 days after entry of judgment the court, on its own, may order a new trial for any reason that would justify granting one on a party’s motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. When granting a new trial on its own initiative or for a reason not stated in a motion, the court shall specify the grounds in its order.
F.R.C.P. 59(d)(2002).
However, an order granting a new trial is interlocutory, and is thus not an appeal-able final order within the meaning of § 1291. See Stradley v. Cortez, 518 F.2d 488, 491 (3d Cir.1975); and Blancha v. Raymark Ind., 972 F.2d 507, 511-12 (3d Cir.1992)(stating that an order granting new trial is purely interlocutory and there*37fore not an appealable final order under Section 1291). Such an order only becomes reviewable following entry of a final order at the conclusion of the ensuing retrial. Blancha, 972 F.2d at 512. At that point, if it appears that the district court erred in granting a new trial, we will reverse the order granting a new trial and reinstate the original verdict. Id.
However, the Board argues that we should exercise jurisdiction under the limited exception which arises when the trial court’s power to grant a new trial is challenged on appeal. Stradley, 518 F.2d at 491. Under this narrow exception, an order that would otherwise be interlocutory is treated as an appealable final order. Id.; see also Demeretz v. Daniels Motor Freight, Inc., 307 F.2d 469, 471 (3d Cir.1962). This exception is based upon Phillips v. Negley, wherein the Supreme Court ruled that an order granting a new trial is itself reviewable as a final judgment when the challenge goes to the judicial power of the trial court to take that action. 117 U.S. 665, 671-74, 6 S.Ct. 901, 29 L.Ed. 1013 (1886). In making its argument, the Board points out that the district court’s order for a new trial was entered on May 21, 2001, 49 days after the jury returned its verdict and well beyond the 10 day time restriction of F.R.C.P. 59(d). As noted above, Fed.R.Civ.P. 59(d) requires that a court enter an order for a new trial “[n]o later than 10 days after entry of judgment....” Accordingly, the Board’s appeal essentially raises a question of the district court’s authority to act beyond the time limit imposed by Rule 59(d), and therefore fits within this narrow jurisdictional exception.
The Board claims that the order granting a new trial is a nullity because it was not entered within 10 days of judgment. However, as noted above, the district court never entered a judgment before ordering a new trial. Absent a judgment, the 10 day time restriction of Rule 59(d) is inapplicable, and we therefore conclude that the order for a new trial was not untimely as the Board suggests.
However, the Board raises a second issue that requires us to review the merits of the order for a new trial. The Board claims that the evidence was not sufficient to support a claim for compensatory damages, and the district court therefore erred in allowing plaintiff a new trial to prove such damages. Inasmuch as this matter is properly before us under the principles set forth in Stradley, we will review the merits of the underlying order. In doing so, we recognize the importance of avoiding the costs of unnecessary piecemeal review as well as the undesirability of denying justice by delaying it. Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).
A district court may order a new trial if it is required to prevent injustice or to correct a verdict that was contrary to the weight of the evidence. American Bearing Company, Inc. v. Litton Industries, Inc., 729 F.2d 943, 948 (3d Cir.1984). The decision to grant or deny a new trial is left almost entirely to the discretion of the district court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); Blancha, 972 F.2d at 512. Therefore we will reverse an order for a new trial only where we conclude that the district court abused its discretion. Blancha, 972 F.2d at 512.
Here, the district court explained that it was granting a new trial because the verdict was against the weight of the evidence. However, a district court should grant a new trial based upon a verdict being against the weight of the evidence only “where a miscarriage of justice would result if the verdict were to stand.” Wil*38liamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir.1991). The purpose of this rule is to ensure that the district court does not replace the jury verdict with one based upon its own interpretation of the facts. Olefins Trading, Inc. v. Han Yang Chem. Corp., 9 F.3d 282, 290 (3d Cir.1993). “Such an action effects a denigration of the jury system and to the extent that new trials 'are granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of the facts.” Lind v. Schenley Industries Inc., 278 F.2d 79, 90 (3d Cir.1960) (en banc).
Here, it is apparent from the record that the order for a new trial was based on the district court’s dissatisfaction with what it saw as the jury’s failure to dutifully consider the evidence and award Radwan some measure of compensable damages. In proceedings on May 21, 2001, the court stated:
It appears to me that with regard to compensatory damages, that the jury ignored obvious evidence that the plaintiff was entitled to damages for emotional distress, whether minimal or substantial. He testified as to emotional distress and self feelings of dejection, despondency. As I say, although it was not supported by medical testimony, it was competent and I think the jury acted unreasonably or should have acted reasonably to conclude that within a reasonable time period of the alleged occurrences of these events he would be entitled to such compensatory damages. I stress I do not take any issue as to whether he is entitled to substantial, minimal or anything in between, but he is, according to the evidence, from my review, entitled to a reasonable assessment which he did not get from this jury.
However, notwithstanding the district court’s concerns, it is clear that the evidence supported the jury’s refusal to award compensatory damages to Radwan. Radwan’s claim for compensatory damages was unsupported by medical testimony or medical records. His complaints amounted to feeling “bad” and having trouble sleeping and eating while employed by the Board. In explaining his sleeping and eating problems, he testified that he would stay up at night, drinking a significant amount of coffee and would skip a meal but ate a lot of donuts. Furthermore, Radwan’s complaints about emotional injury arose in a limited time period when he was going through a separation and divorce from his wife of 11 years and mother of his three children. In addition, Radwan claimed to have seriously injured his back in 1996. The jury obviously concluded that Radwan did not meet his burden of proving that his “injuries” resulted from the defendant’s actions as opposed to Rad-wan’s own personal problems or preexisting physical injury.
Accordingly, it was not necessary to grant a new trial to avert an injustice. In attempting to do so, the district court replaced the jury’s view of the evidence with his own, and entered an order for a new trial which we now agree must be reversed.
II.
For all the reasons set forth herein, we will reverse the district court’s order for a new trial.
. The court had not responded to the Board's request that the court mold the judgment to zero dollars. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224313/ | ORDER PURSUANT TO 28 U.S.C. § 1292(b)
MADELINE HUGHES HAIKALA, District Judge.
This lawsuit began as a fairly straightforward state court ejectment action between WGB, LLC and Philip and Jennie Bowling. After some motion practice, the Bowlings filed a “counterclaim” against three new parties: U.S. Bank National Association, as trustee for loan asset-backed certificates, series 2007-SP2, Litton Loan Servicing, LP, and Ocwen Loan Servicing, LLC. (Doc. 1-1, pp. 110-114). The new defendants removed the entire action to federal court on the basis of federal question jurisdiction, relying on claims that the Bowlings asserted against the new defendants under four federal statutes. (Doc. 1, p. 2).
The Bowlings ask the Court to remand this entire action to the Birmingham Division of the Circuit Court of Jefferson County, Alabama. (Doc. 9, p. 1). They argue that U.S. Bank, Litton, and Ocwen do not have statutory authority to remove the action under 28 U.S.C. § 1441(a). According to the Bowlings, only original defendants may exercise the statutory power of removal under § 1441. (Doc. 9). WGB argues that the Court should remand the entire action pursuant to § 1441(c) because the Bowlings’ claims against the new defendants are not separate and independent from WGB’s ejectment claim against the Bowlings, and WGB’s ejectment claim is nonremoveable.
Neither remand argument persuades the Court. Binding precedent in this circuit undermines the Bowlings’ argument, and Congress’s recent deletion of the phrase “separate and independent” from § 1441(c) derails WGB’s position. Therefore, as discussed in greater detail below, the Court severs WGB’s ejectment action against the Bowlings from the Bowlings’ federal and state law claims against the new defendants and remands WGB’s ejectment action to the Circuit Court of Jefferson County, Alabama (Birmingham Division). The Court retains jurisdiction over the Bowlings’ claims against the new defendants and certifies this order for interlocutory appellate review.
I. REMAND STANDARD
A remand motion compels a federal district court to determine whether it may exercise jurisdiction over an action that a plaintiff initiated in state court. 28 U.S.C. § 1447. “In removal cases, the burden is on the party who sought removal to demonstrate that federal jurisdiction exists.” Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir.2005) (citation omitted). “Because removal jurisdiction raises significant federalism concerns,” a district court must resolve all doubts about jurisdiction in favor of remand to state court. City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir.2012) (citations omitted); see also Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.1999) (“[F]ederal courts are directed to construe removal statutes strictly ... [A]ll doubts about jurisdiction should be resolved in favor of remand to state court.”). Therefore, in this case, the removing parties— *1291U.S. Bank, Litton, and Ocwen — bear the burden of persuading the Court that they properly removed this action to federal court.
II. PROCEDURAL BACKGROUND
On November 19, 2012, WGB, LLC sued Philip F. Bowling and Jennie Bowling in the Circuit Court of Jefferson County, Alabama, Birmingham Division. (Doc. 1, p. 2).1 Pursuant to Alabama Code § 6-6-280, WGB seeks possession of property that it allegedly bought in a mortgage foreclosure sale. (Doc. 1-1, p. 7). WGB also requests damages for injuries it purportedly sustained as a consequence of the Bowlings’ alleged unlawful detention of the property at issue. (Doc. 1-1, p. 8). On January 6, 2013, the Bowlings filed a motion to dismiss the state court complaint. (Doc. 1-1, pp. 30-34). On March 13, 2013, the state circuit court found that the Bowl-ings’ motion to dismiss was moot. (Doc. 1-1, p. 51).
Six months later, on September 9, 2013, the Bowlings filed an “Answer and Counterclaim.” (Doc. 1-1, p. 110). In their “counterclaim,” the Bowlings asserted claims against three new parties: U.S. Bank National Association, Litton Loan Servicing, LP, and Ocwen Loan Servicing, LLC. (Doc. 1-1, p. 114). The “counterclaim” consists of eleven state law counts and four federal law counts. With respect to the federal law claims, the Bowlings contend that the new defendants violated the Truth in Lending Act (“TILA”) and Regulation Z, 12 C.F.R. § 226.1 et seq.; the Real Estate Settlement Procedures Act (“RESPA”); the Fair Credit Reporting Act (“FCRA”); and the Fair Debt Collection Practices Act (“FDCPA”). (Doc. 1-1, pp. 116-129). Each count pertains to the servicing of the mortgage on the Bowlings’ property and the foreclosure sale relating to that property. (Doc. 1-1, pp. 115-16; see also Doc. 1-1, pp. 30-34).2 The Bowlings state that, “any recovery that might be available to [WGB] must be offset by any recovery the Defendants might be entitled [to] as a result of their counterclaim.” (Doc. 1-1, pp. 155-156). The Bowlings assert that they are entitled to the following relief: (a) actual damages; (b) compensatory and punitive damages; (c) “That the foreclosure sale be set aside, the foreclosure deed be declared void, and the Plaintiffs ejectment action be denied or dismissed;” and (d) attorney fees and costs. (Doc. 1-1, pp. 129-30).
U.S. Bank, Litton and Ocwen contend that they were served with the “Answer and Counterclaim” on September 13, 2013. (Doc. 1, p. 2). On October 10, 2013, the new defendants removed the entire action to federal court on the basis of federal question jurisdiction. (Doc. 1, pp. 1, 3). The Bowlings filed their motion to remand on November 6, 2013. (Doc. 9). The new defendants filed a brief in opposition to the motion to remand. (Doc. 10). Initially, WGB did not weigh in on the jurisdictional issue.
After studying the record and the briefs relating to the Bowlings’ remand motion, the Court issued an order in which it provided some initial jurisdictional analysis and noted that the Bowlings and the new defendants had overlooked an important issue in their jurisdictional analysis, namely Congress’s recent amendment to § 1441(c) in the Federal Courts Jurisdic*1292tion & Venue Clarification Act of 2011. (Doc. 17). The Court gave the parties an opportunity to file supplemental briefs addressing the impact of the amendment on the Bowlings’ remand motion. (Doc. 17, pp. 15-16). WGB joined the jurisdictional discussion at this stage and aligned with the Bowlings on the remand issue. (Doc. 23). After WGB and the new defendants filed supplemental briefs (Docs. 22-23), the Court heard argument from all of the parties.
On this record, the Court decides the Bowlings’ motion to remand.
III. ANALYSIS
A. Removal by newly added defendants.
A defendant’s “ ‘right of removal is statutory.’ ” Ware v. Fleetboston Financial Corp., 180 Fed.Appx. 59, 61 (11th Cir.2006) (quoting Edwards v. E.I. Du Pont De Nemours & Co., 183 F.2d 165 (5th Cir.1950)). The removal statute, 28 U.S.C. § 1441, begins with a general provision,- § 1441(a). Section 1441(a) states:
Generally. — Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a).3
The Bowlings assert that “third party and counter defendants cannot remove” under § 1441(a). (Doc. 9, p. 3). Citing Moore’s Federal Practice, the Bowlings argue, “[a]s used in Section 1441(a) of the general removal statute, the word ‘defendant’ is defined as the original plaintiffs defendant.” (Doc. 9, pp. 3-4). Under the Bowlings’ theory, the Court effectively must insert the word “original” before the words “defendant” and “defendants” in § 1441(a) and must remand this entire action to state court because the Bowlings could not have removed WGB’s state court ejectment action to federal court.4 The Court rejects the Bowlings’ argument because their analysis of § 1441 is structurally unsound.
The Bowlings regard § 1441(a) as the operative mechanism in § 1441 and suggest that § 1441(a) limits the operation of subsections § 1441(b) through § 1441(f). Under settled rules of statutory construction, this interpretation of § 1441 is backwards. The principle of ejusdem generis provides that “ ‘[gjeneral language of a statutory provision, although broad enough *1293to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment. Specific terms prevail over the general in the same or another statute which otherwise might be controlling.’” In re Read, 692 F.3d 1185, 1191 (11th Cir.2012) (quoting D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208, 52 S.Ct. 322, 76 L.Ed. 704 (1932) (internal citations omitted)); see also Medberry v. Crosby, 351 F.3d 1049, 1060 (11th Cir.2003) (“[I]n answering the issue presented in the COA, we turn to the canon of statutory construction that the more specific takes precedence over the more general.”). Under this principle, the five subsections that follow § 1441(a) refine the application of the general provision for particular situations. For example, § 1441(b)(2) addresses removal by resident defendants. Section 1441(a) generally allows defendants to remove an action when the parties are completely diverse, and more than $75,000 is in controversy; however, § 1441(b)(2) states that, “[a] civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Therefore, under § 1441(b)(2), the presence of a resident defendant defeats removal of an action which otherwise would be removable under § 1441(a) on the basis of diversity jurisdiction.
Like § 1441(b)(2), § 1441(c) refines § 1441(a), and § 1441(c) provides a vehicle for newly added defendants to remove an action that satisfies § 1441(c)’s criteria. Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 133 (5th Cir.1980). Section 1441(c) applies to removal of “a civil action” that “includes [ ] a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and [ ] a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremova-ble by statute.” 28 U.S.C. § 1441(c)(1)(A)-(B). When an action includes claims that are removable under § 1331 and nonre-movable claims, § 1441(c) provides that “the entire action may be removed if the action would have been removable without the inclusion of the” nonremovable claim. 28 U.S.C. § 1441(c)(1)(B). Thus, under § 1441(c), when an original state court defendant files claims against new defendants, and one or more of those claims supplies a basis for federal question jurisdiction, the new defendants may remove the entire action to federal court even though the action contains claims that otherwise would be nonremovable.
Though decided under an earlier version of § 1441(c), Carl Heck, a case that is binding in this circuit, supports the Court’s conclusion.5 The plaintiff in Carl Heck sued the Lafourche Parish Police Jury in state court for breach of contract. 622 F.2d at 134. Lafourche, in turn, filed a third party claim against its insurer based on Lafourche’s contention that the insurer was contractually bound to defend La-fourche and hold it harmless. Id. at 134-135. The newly added defendant, the insurer, removed the entire action to federal court on the basis of diversity jurisdiction. The district court denied Lafourche’s motion to remand the entire action to state court. Instead, the district court severed and remanded to state court the original *1294plaintiffs claim against Lafourche and retained jurisdiction over Lafourche’s insurance claim. Id. at 135. The district court based its decision on the language then contained in § 1441(c):
Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.
Id. at 135.
In affirming the district court’s decision under § 1441(c), the Fifth Circuit Court of Appeals acknowledged that “the decisions are in conflict as to a third party defendant’s right to remove a controversy under section 1441(c);” however, the Court found that the cases that “have permitted removal on the basis of a third party claim where a separate and independent controversy is stated” present “the more rational view” of the right of newly added parties to remove under section 1441(c). Carl Heck, 622 F.2d at 135. The Court of Appeals observed, “the language of [section 1441] does not require only those causes of action joined by the original plaintiff to form the basis of removal. If the third party complaint states a separate and independent claim which if sued upon alone could have been brought properly in federal court, there should be no bar to removal.” Id. at 136.
Nearly two decades after it decided Carl Heck, the Fifth Circuit held in Bd. of Regents of Univ. of Tex. System v. Walker, 142 F.3d 813 (5th Cir.1998), cert. denied 525 U.S. 1102, 119 S.Ct. 865, 142 L.Ed.2d 768 (1999), that a newly added counter-defendant could remove an action to federal court under § 1441(c) when the new defendant would have been able to remove the § 1983 claim against him had he been sued alone. Id. at 816. The Walker decision is not binding in this circuit because the Fifth Circuit issued the opinion after September 30, 1981, but the Court finds the Fifth Circuit’s reasoning persuasive. Although subsequent revisions of § 1441(c) now prohibit a removal like the one in Carl Heck because Congress has excluded from the operation of § 1441(c) cases in which original federal jurisdiction is based upon diversity jurisdiction under 28 U.S.C. § 1332, the Fifth Circuit’s rationale for permitting a newly added defendant to remove a civil action to federal court under § 1441(c) remains valid and binding in the Eleventh Circuit.
WGB acknowledges this point; the Bowlings disagree. The Bowlings argue that the United States Supreme Court’s decision in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002), dealt a fatal blow to Carl Heck. (Doe. 9, pp. 4-5). The procedural posture of Holmes Group distinguishes it from Carl Heck, leaving the rationale of Carl Heck undisturbed in cases such as the one before the Court.
Holmes Group filed an action in federal court in which the company asked the district court to declare that Holmes Group’s products did not infringe on Vor-nado Air’s trade dress. Vornado Air, the original defendant, filed a compulsory counterclaim against Holmes Group for patent infringement. Holmes Group, 535 U.S. at 828, 122 S.Ct. 1889. The district court found in favor of Holmes Group. On appeal, the Federal Circuit vacated the district court’s decision and remanded the case, instructing the district court to consider a new decision that post-dated the district court’s judgment. Id. at 829, 122 S.Ct. 1889. The Supreme Court “granted *1295certiorari to consider whether the Federal Circuit properly asserted jurisdiction over the appeal,” a question that turned on the district court’s ability to exercise jurisdiction over the declaratory judgment action. Id.
The Supreme Court began its jurisdictional analysis with a summary of the well-pleaded complaint rule. The Court explained, “[a]s ‘appropriately adapted to § 1388(a),’ ” the jurisdictional statute at issue in Holmes Group, “the well-pleaded-complaint rule provides that whether a case ‘arises under’ patent law ‘must be determined from what necessarily appears in the plaintiffs statement of his own claim in the bill or declaration,’ ” and that complaint, “must ‘establis[h] either that federal patent law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal patent law....’” Holmes Group, 535 U.S. at 828, 122 S.Ct. 1889 (quoting Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 809, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)). Because it was undisputed that the plaintiffs complaint did not contain a claim arising under federal patent law, the Supreme Court held that the district court did not have jurisdiction over the case.
The Supreme Court rejected the notion that Vornado Air’s patent law counterclaim could provide a basis for federal jurisdiction: “a counterclaim — which appears as part of the defendant’s answer, not as part of the plaintiffs complaint — cannot serve as the basis for ‘arising under’ jurisdiction.” Holmes Group, 535 U.S. at 831, 122 S.Ct. 1889. To hold otherwise, the Supreme Court opined, would “contravene the [following] longstanding policies underlying our precedents”:
First, since the plaintiff is “the master of the complaint,” the well-pleaded-complaint rule enables him, “by eschewing claims based on federal law, ... to have the cause heard in state court.” Caterpillar Inc. [v. Williams ], supra, [482 U.S. 386] at 398-399, 107 S.Ct. 2425 [96 L.Ed.2d 318 (1987) ]. The rule proposed by respondent, in contrast, would leave acceptance or rejection of a state forum to the master of the counterclaim. It would allow a defendant to remove a case brought in state court under state law, thereby defeating a plaintiffs choice of forum, simply by raising a federal counterclaim. Second, conferring this power upon the defendant would radically expand the class of removable cases, contrary to the “[d]ue regard for the rightful independence of state governments” that our cases addressing removal require. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (internal quotation marks omitted). And finally, allowing responsive pleadings by the defendant to establish “arising under” jurisdiction would undermine the clarity and ease of administration of the well-pleaded-complaint doctrine, which serves as a “quick rule of thumb” for resolving jurisdictional conflicts. See Franchise Tax Bd., supra, at 11, 103 S.Ct. 2841.
535 U.S. at 831-32, 122 S.Ct. 1889. Thus, the Supreme Court found that original jurisdiction cannot be based on a federal claim that appears in an original defendant’s counterclaim against an original plaintiff. By extension, under § 1441(a), an original defendant may not remove an action based on a federal claim that appears in the original defendant’s counterclaim against the original plaintiff. Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Calif., 463 U.S. 1, 10 n. 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) (“The well-pleaded complaint rule applies to the original ju*1296risdiction of the district courts as well as to their removal jurisdiction.”).
Holmes Group neither explicitly nor implicitly overruled Carl Heck because Carl Heck did not involve removal by an original defendant. The district and appellate courts in Carl Heck examined the question that the Bowlings’ remand motion presents to this Court: when an original defendant adds new defendants to an action, may the new defendants exercise the statutory right of removal, even though the original plaintiffs claims against the original defendant are not removable? Section 1441(c)(1)(B) supplies the answer: the new defendants may remove the entire action “if the action would have been removable without the inclusion of the” non-removable claim. Applying § 1441(c)(1)(B) to the pending action, if the Court disregards the nonremovable claim — WGB’s ejectment claim against the Bowlings — the balance of the action is removable. Indeed, all parties concede that if the Bowlings had opted to sue U.S. Bank, Litton and Ocwen in a separate state court action and had pursued the fifteen counts that the Bowlings currently assert against the new defendants, U.S. Bank, Litton and Ocwen could have removed that action to federal court, invoking the Court’s original jurisdiction over the Bowlings’ federal law claims and asking the Court to exercise supplemental jurisdiction over the Bowlings’ state law claims. 28 U.S.C. §§ 1381,1367.6
Because the new defendants could remove the Bowlings’ claims against them in the absence of WGB’s ejectment claim, the new defendants may remove the entire action pursuant to the plain language of § 1441(c)(1)(B). Section 1441(c)(2) dictates that upon removal, the Court “shall sever from the action all” nonremovable claims “and shall remand the severed claims to the State court from which the action was removed.” 28 U.S.C. § 1441(c)(2) (emphasis added); see F.D.I.C. ex rel. Colonial Bank v. Banc of America Funding Corp., 2013 WL 3968017, *2 (M.D.Ala. Aug. 1, 2013) (“If § 1441(c) does anything clearly, it is to require the severance and remand of non-removable claims.”).7 Therefore, the Court severs WGB’s claims against the Bowlings from the Bowlings’ claims against the new defendants, and the Court remands WGB’s claims against the Bowl-ings to state court. The Court retains jurisdiction over the Bowlings’ federal and state law claims against the new defendants.
B. Congress’s deletion of the phrase “separate and independent” from § 1441(c).
WGB urges the Court to remand the entire action, not just the ejectment action. The company reasons that because the Court must remand WGB’s claims against *1297the Bowlings, the Court also should remand the Bowlings’ claims against the new defendants because “the claims asserted against the New Defendants are not completely disassociated with WGB’s ejectment action against the Bowlings.” (Doe. 23, p. 6). In support of its position, WGB argues that “the ‘separate-and-independent requirement’ of section 1441(c) survived” Congress’s recent revision of the statute. (Doc. 23, p. 5). The Bowlings agree, asserting that their claims against the new defendants “do not meet the ‘separate and independent’ requirement necessary for a removal under § 1441(c).” (Doc. 9, pp. 12-13). The Court disagrees.
Here is the rub: when it revised § 1441(c) in the Federal Courts Jurisdiction & Venue Clarification Act of 2011, Congress deleted the phrase “separate and independent” from § 1441(c). On January 5, 2012, § 1441(c) began, “Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed_” Ariail Drug Co., Inc. v. Recomm Intern. Display, Inc., 122 F.3d 930, 934 n. 7 (11th Cir.1997). On January 6, 2012, the day that the Clarification Act went into effect, § 1441(c) provided (and still provides):
Joinder of Federal law and State law claims. — (1) If a civil action includes—
(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B). (2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).
28 U.S.C. § 1441(c). The phrase “separate and independent” disappeared from § 1441(c) when Congress revised the statute. As the United States Supreme Court held in another context, “[g]iven this clear language, it would be improper to conclude that what Congress omitted from the statute is nevertheless within its scope.” University of Texas Southwestern Medical Center v. Nassar, — U.S.-, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013). Under settled rules of statutory construction, the Court finds that Congress’s elimination of the phrase “separate and independent” from § 1441(c) was not a hollow exercise.
The Court in F.D.I.C. v. Banc of America Securities, LLC, reached the same conclusion. 2012 WL 2904310 (D.Nev. July 16, 2012). Noting that the FDIC “spill[ed] much ink analyzing the previous version of the removal statute,” the court held that “Congress’s amendment of the previous iteration of [§ 1441(c) ], and choice to remove the ‘separate and independent’ language that the previous version [of the statute] employed” rendered the FDIC’s arguments moot. Id. at *2. The court recognized that “ ‘[w]hen Congress acts to amend a statute, [courts] presume it intends its amendment to have real and substantial effect.’ ” Id. (quoting Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995)).
The FDIC court acknowledged the parties’ concerns about “the curious outcome *1298of th[e] court’s interpretation of § 1441(c)” that potentially could leave state claims in federal court and related federal claims in state court. Nevertheless, the court found untenable the FDIC’s proposed remedy that would require the court to read into the current version of § 1441(c) the former’s version’s “separate and independent” requirement. The court observed, “[t]he FDIC’s argument fails to explain how this court can apply such a construction in light of Congress’s clear choice to remove the ‘separate and independent’ requirement from the text of the amended version of § 1441(c).” 2012 WL 2904310 at *3. The court added:
[w]hile the court agrees that the application of § 1441(c) has resulted in the bizarre result of remanding a federal claim while retaining jurisdiction over a state law claim, it appears even more bizarre to this court to interpret the removal statute as requiring something which it clearly does not require, and that Congress saw fit to affirmatively remove from the plain text of the statute.
Id.
8
Mirroring the arguments in FDIC, WGB and the Bowlings express concern about the inefficiency and impracticality of the simultaneous litigation of WGB’s ejectment action in state court and the Bowlings’ federal and state law claims in federal court. All parties recognize that the Bowl-ings’ claims against the new defendants are intertwined with WGB’s ejectment action because the Bowlings’ claims against the new defendants are designed to defeat WGB’s ejectment action by undoing the foreclosure on the Bowlings’ home. (See, e.g., Doc. 9, p. 12; Doc. 1-1, p. 130). In theory, the state court ejectment proceedings and the federal court wrongful foreclosure proceedings regarding the Bowl-ings’ property potentially could proceed concurrently; however, on a party’s motion, the state court could, for example, stay WGB’s state court proceedings against the Bowlings until the Bowlings resolve their claims in federal court. Thus, though some amount of inefficiency may be unavoidable, the courts have available to them tools that they may use to allocate responsibility for resolving the matters pertaining to the foreclosure at issue without wasting time or resources.
More importantly, Congress seems to have decided that it is willing to sacrifice efficiency in exchange for preserving a defendant’s statutory right to remove a case to federal court. House Report 112-10 concerning the Clarification Act states:
*1299Section 108(a)(4) of the bill would amend subsection 1441(c) to clarify the right of access to Federal court upon removal for the adjudication of separate Federal law claims that are joined with unrelated state law claims. Subsection 1441(c) presently authorizes a defendant to remove the entire case whenever a “separate and independent” Federal question claim is joined with one or more non-removable claims. That subsection also states that, following removal, the district court may either retain the whole case or remand all matters in which state law predominates.
Some Federal district courts have declared the provision unconstitutional or raised constitutional concerns because, on its face, subsection 1441(c) purports to give courts authority to decide state law claims for which the Federal courts do not have original jurisdiction. Other courts have chosen simply to remand the entire case to state court, thereby defeating access to Federal court ...
This section of the bill is intended to make changes to better serve the purpose for which the statute was originally designed, namely to provide a Federal forum for the resolution of Federal claims that fall within the original jurisdiction of the Federal courts. The amendment to subsection 1441(c) would permit the removal of the case but require that a district court remand unrelated state law matters. This sever-and-remand approach is intended to cure any constitutional problems while preserving the defendant’s right to remove claims arising under Federal law.
2011 WL 484052, *11-12 (citations omitted).9 In discussing its goal of “preserving the defendant’s right to remove claims arising under Federal law,” Congress did not distinguish between original defendants and subsequently added defendants.
Through its revision of § 1441(c), Congress endeavored not only to preserve a defendant’s right to remove federal law claims but also to protect well-established limits on federal jurisdiction. Congress accomplished the latter purpose by making remand of nonremovable state court claims mandatory. In doing so, Congress coincidentally addressed the policy concerns that animated the Supreme Court’s decision in Holmes Group. Mandatory remand of nonremovable claims preserves the original plaintiffs choice of forum in a case such as this. Mandatory remand of nonremovable claims also assures that a defendant’s removal under § 1441(c) does not expand the class of removable cases. Holmes Group, 535 U.S. at 831-32, 122 S.Ct. 1889.
Thus, though simultaneous litigation of WGB’s ejectment action in state court and the Bowlings’ federal and state law claims against their lender and the mortgage servicing companies in federal court may prove somewhat inefficient, this Court joins the FDIC court in concluding that the Court would violate well-settled rules of statutory construction if it were to ignore Congress’s elimination of the “separate and independent” requirement from § 1441(c) for the sake of convenience and expediency. Therefore, the Court rejects WGB’s request that the Court remand this entire lawsuit to state court. (Doc. 23, p. 8).
IV. CONCLUSION
Accordingly, this Court SEVERS WGB’s ejectment action against the Bowl-*1300mgs’ from the Bowlings’ claims against the newly added defendants. The Court REMANDS WGB’s ejectment action to the Circuit Court of Jefferson County, Alabama, Birmingham Division. The Court RETAINS jurisdiction over the Bowlings’ federal and state law claims against the new defendants.
Pursuant to 28 U.S.C. § 1292(b), the Court finds that this order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order [would] materially advance the ultimate termination of the [federal] litigation” if the Eleventh Circuit Court of Appeals were to disagree with this Court’s interpretation of the current iteration of § 1441(c).10 In addition, though this Court believes that the Clarification Act bolsters the Carl Heck decision, the Court recognizes that debate remains concerning the continued viability of that binding precedent.11 Therefore, the Court concludes that the conditions for interlocutory appeal are met. Fed. R.App. P. 5.12
. The state circuit court case number is CV-2012-903803.
. The Bowlings mention WGB in the fact section of the counterclaim (Doc. 1-1, p. 115); however, the substance of the fifteen counts in the Bowlings’ counterclaim seems to be directed solely to the new defendants.
. In the vast majority of cases, original jurisdiction lies in federal court either under 28 U.S.C. § 1331 because the action involves a question of federal law or under 28 U.S.C. § 1332 because the parties are completely diverse and more than $75,000 is at issue. Section 1331 provides:
The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
28 U.S.C. § 1331. Section 1332(a)(1) provides, in part:
(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
28 U.S.C. § 1332.
. The Bowlings could not remove WGB’s ejectment action because the action does not contain a claim arising under the United States Constitution or federal law, and even if the Bowlings could have satisfied the requirements for diversity jurisdiction under § 1332(a)(1), § 1441(b)(2) would have precluded removal because the Bowlings are citizens of Alabama. 28 U.S.C. § 1441(b)(2); Doc. 1-1, p. 114.
. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (‘‘[T]he decisions of the United States Court of Appeals for the Fifth Circuit (the ‘former Fifth’ or the 'old Fifth’), as the court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent on the Eleventh Circuit.”).
. Section 1367 provides:
(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.
28 U.S.C. § 1367(a).
. The "shall” language in § 1441(c)(2) is new. Remand of nonremovable claims was discretionary under earlier versions of § 1441(c)(2). Congress's revisions to § 1441(c) became effective on January 6, 2012. See Federal Courts Jurisdiction & Venue Clarification Act of 2011, Pub.L. No. 112-63, 125 Stat. 758. WGB filed this action in state court in November 2012.
. Though it is dicta, the Court in Lamar v. Home Depot, 907 F.Supp.2d 1311 (S.D.Ala.2012), found that Congress's omission of the "separate and independent” phrase from the amended version of § 1441(c) has consequences. The Court explained:
As it existed at the time Reed was decided, Section 1441(c) provided as follows: "Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.”
[Ujnder the former version of Section 1441(c) [a federal court could retain a federal claim despite remand of a state law claim] only if the federal claim was separate and independent from the state claim. Under the recently revised version of Section 1441(c), removal of an action is allowed any time the case contains both a claim under Section 1331 and a claim made non-removable by statute (or that is not within the federal courts' original or supplemental jurisdiction), with the non-removable claim to be severed and remanded.
Id. at 1314-15, nn. 5-6 (referring to Reed v. Heil Co., 206 F.3d 1055 (11th Cir.2000)).
. The Court acknowledges that the House Report uses the word "separate,” but the Court does not believe that inclusion of this word in the legislative history trumps Congress’s deletion of the phrase "separate and independent” from the statute.
. See, e.g., F.D.I.C. ex rel. Colonial Bank v. Banc of America Funding Corp., 2013 WL 3968017, *2 (M.D.Ala. Aug. 1, 2013) (finding that "the separate-and-independent requirement [of § 1441(c)] survived the recent amendment [of § 1441(c) ] intact.”).
. Compare Karp v. Am. Law Enforcement Network, LLC, 2011 WL 6963254, at *2 (S.D.Ala. Nov. 18, 2011) (the "position staked out by the Fifth Circuit in Carl Heck is in the minority (and has been roundly criticized)”), adopted by 2012 WL 38161 (S.D.Ala. Jan. 6, 2012); Moss Land & Mineral Corp. v. Fid. & Cas. Co. of New York, 2003 WL 21360803, at *3 (N.D.Ala. June 6, 2003) (“In this court’s opinion [§ 1441(c)’s 1990 amendment] wiped out Carl Heck. In fact, Carl Heck may have been a cause, if not the precipitating reason, for the Congressional tightening of the removal loophole that had been created by the Fifth Circuit in Carl Heck.”); Alfa Mut. Ins. Co. v. Nicholson, 2014 WL 903126 at *3, n. 4 (M.D.Ala. March 7, 2014) (“Compare Deutsche Bank Nat. Trust Co. v. Baxter, [969 F.Supp.2d 1337, 1343-44] 2013 WL 5229994, at *5-7 [*5-6] (N.D.Ala. Sept. 18, 2013) (recognizing that, under Carl Heck’s binding precedent, removal by a third-party defendant is permissible in this Circuit, but declining to follow the Fifth Circuit’s non-binding decision in State of Tex. by and through Bd. of Regents of Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 916 [816] (5th Cir.1998), which extended Carl Heck holding to include counter defendants, finding "it unlikely that the Eleventh Circuit would extend Carl Heck to include counterclaim defendants” and that this was "espe-daily true where, as here, the underlying claims have not been severed”), and Citibank (S. Dakota), N.A. v. Duncan, 2:09-cv-868-WKW, 2010 WL 379869, at *2 (M.D.Ala. Jan. 25, 2010) (“Although Carl Heck is binding authority as to removals by third-party defendants, Walker is not.... The Eleventh Circuit has yet to decide whether § 1441(c) encompasses removals by counter-defendants, and given the divisiveness among other courts as to the underlying conclusion reached in Carl Heck, the court is persuaded that the better course is to remand, rather than to guess what this circuit might hold if presented with the unsettled issue of whether Carl Heck should be extended to removals by counter-defendants.”), with Mace Sec. Intern., Inc. v. Odierna, No. 08-cv-60778, 2008 WL 3851839, at *4 (S.D.Fla. Aug. 14, 2008) (finding the Fifth Circuit’s decision in Walker to be persuasive and extending Carl Heck to include counterclaim defendant removals), and North Star Capital Acquisitions, LLC v. Krig, 2007 WL 3522425, at *1 n. 3 (M.D.Fla. Nov. 15, 2007) ("Unlike Carl Heck, Walker is not binding in the Eleventh Circuit. However, the Walker holding to allow removal by counterclaim defendants is simply a natural extension of the Carl Heck rule by which this Court is bound.”). In short, the law in this Circuit is not clear on whether removal is proper by counterclaim defendants ...").
.In finding that this order satisfies the conditions for interlocutory appeal, the Court does not mean to suggest that it has doubts about jurisdiction that would require it to *1301remand the entire action to state court. The Court has studied the remand issues in this case thoroughly and is convinced of its disposition of those issues. Nevertheless, the Court acknowledges that remand decisions in cases such as this run the gamut. Because remand orders ordinarily are not appealable, the Court’s decision in this case presents an opportunity for the Eleventh Circuit Court of Appeals to provide direction to the district courts in the Circuit if the Court of Appeals wishes to entertain an interlocutory appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224315/ | MEMORANDUM OPINION
KARON OWEN BOWDRE, Chief Judge.
This case, asserting sexual harassment under Title VII and invasion of privacy under Alabama law, comes before the court on the “Defendant’s Motion to Dismiss” filed on January 29, 2013 (doc. 4), the same day the Defendant removed this case from the Circuit Court of Jefferson County to this court based on federal question jurisdiction (doc. 1). For the following reasons, the court finds that the Defendant’s motion to dismiss is due to be DENIED in part, and GRANTED in part. The court will DENY the motion as to the Title VII claim but GRANT it as to the invasion of privacy claim and will DISMISS that claim WITHOUT PREJUDICE.
Procedural History
The Plaintiff Lesia Ann Rose originally brought this action under Title VII, 42 U.S.C. § 1983, and Alabama law on invasion of privacy. SMI Steel LLC d/b/a/ CMC Steel Alabama (“CMC”) filed its motion to dismiss under Rule 12(b)(6), arguing that Rose failed to state a claim upon which relief can be granted. In its motion, CMC requested that this court “dismiss all of Plaintiffs claims with prejudice.” (Doc. 4, at 2). However, CMC’s Brief in Support of Its Motion to Dismiss did not address Plaintiffs Title VII claim. (See Doc. 5).
On April 10, 2014, during the Scheduling Conference, CMC indicated through counsel that it did not intend to include the Title VTI claim in its motion to dismiss. On April 14, 2014, after the Scheduling Conference, Rose filed an Amended Complaint (doc. 16), naming SMI Steel, LLC d/b/a CMC Steel Alabama as the proper Defendant and dropping the § 1983 claim.
Given the Amended Complaint deleting the § 1983, the court finds CMC’s motion to dismiss as to the § 1983 claim is MOOT. Because CMC neither intended to challenge Rose’s Title VII claim and did not address it in its brief, the court finds that CMC abandoned that claim and will DENY the motion to dismiss as to the Title VII claim. The court, however, will address CMC’s motion to dismiss as to the remaining invasion of privacy claim.
I. FACTS
On April 14, 2014, Rose filed an Amended Complaint in this action against CMC, alleging claims under Title VII of the Civil Rights Act of 1964 and under Alabama law for invasion of privacy, demanding appropriate declaratory relief, compensatory, and punitive damages. (Doc. 16).
According to the Amended Complaint, on or about February 22, 2012, Rose applied for a position with CMC. Curtis Hammond, an employee of CMC, informed Rose that, in light of her experience and education, he would be able to obtain a position for her with the company. Rose followed-up with Hammond several times regarding the status of her application.
Rose alleged that at some point around March 2012, Hammond began to send inappropriate sexual text messages to Rose and made inappropriate comments to her on the telephone, alluding to Rose’s hiring being conditioned upon her having sexual relations with Hammond. One of the text messages Hammond sent to Rose allegedly stated, “Need lovin u want that job.” After Rose refused to engage in sexual relations with Hammond, she was not hired by CMC.
Rose contends that, on or about May 21, 2012, she sent a letter to CMC detailing *1320the alleged sexual harassment that Hammond committed. Rose claims that after receiving this notice of the alleged sexual harassment, CMC refused to give her a second interview or to hire her.
II. STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. Generally, the Federal Rules of Civil Procedure require only that the complaint provide “‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide the grounds of her entitlement, but Rule 8 generally does not require “detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99). It does, however, “demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Pleadings that contain nothing more than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards nor do pleadings suffice that are based merely upon “labels or conclusions” or “naked assertions” without supporting factual allegations. Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955.
The Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting and explaining its decision in Twombly, 550 U.S. at 570, 127 S.Ct. 1955). To be plausible on its face, the claim must contain enough facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Although “[t]he plausibility standard is not akin to a ‘probability requirement,’ ” the complaint must demonstrate “more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
The Supreme Court has recently identified “two working principles” for the district court to use in applying the facial plausibility standard. The first principle is that, in evaluating motions to dismiss, the court must assume the veracity of well-pleaded factual allegations; however, the court does not have to accept as true legal conclusions even when “couched as [ ] factual allegation^]” or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The second principle is that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679, 129 S.Ct. 1937. Thus, under prong one, the court determines the factual allegations that are well-pleaded and assumes their veracity, and then proceeds, under prong two, to determine the claim’s plausibility given the well-pleaded facts. That task is “context-specific” and, to survive the motion, the allegations must permit the court based on its “judicial experience and common sense ... to infer more than the mere possibility of misconduct.” Id. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claim must be dismissed. Id.
*1321
III. DISCUSSION
Invasion of Privacy
Rose’s Amended Complaint contains one sentence regarding invasion of privacy: “Hammond also invaded Plaintiffs privacy by the behavior chronicled in the preceding counts.” (Doc. 16). CMC argues that Rose inadequately pled the invasion of privacy claim because her “threadbare recitals are wholly insufficient to survive a motion to dismiss.” (Doc. 4, at 4). In her objections to the motion to dismiss, Rose maintains that “[ujnwanted solicitation for sexual intercourse is clearly an intrusion upon the most ‘private’ of affairs.” (Doc. 8, at 3).
This court notes that the Amended Complaint failed to specify the type of invasion of privacy upon which Rose bases her claim. A court in this district has held that a plaintiff insufficiently pled a claim for invasion of privacy based on sexual harassment where the plaintiff failed to allege specifically the type of invasion of privacy she was asserting under Alabama law. Watts v. Jay Hanuman, Inc., No. 1:11-cv-4346-VEH, 2012 WL 1424881, *1, *5 (N.D.Ala. Apr. 20, 2012). As Rose failed, in this case, to plead the type of invasion of privacy upon which she bases her claim, CMC is forced to guess and fashion its answer upon such speculation. CMC should not have this burden.
Although she failed to plead the type of invasion of privacy she asserts against CMC, Rose’s “Objections to Defendant’s Motion to Dismiss” seemed to clarify that she intended to bring her claim based on the “intrusion of the plaintiffs physical solitude or seclusion.” (Doc. 8, at 3). The Supreme Court of Alabama has defined the wrongful intrusion aspect of invasion of privacy by adopting the definition from the Restatement (Second) of Torts. Phillips v. Smalley Maint. Serv., Inc., 435 So.2d 705, 708 (Ala.1983). It states: “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or [her] private affairs or concerns, is subject to liability to the other for invasion of [her] privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement (Second) of Torts, § 652B (1977). Alabama law further defines the tort of invasion of privacy as “‘the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.’ ” Austin v. Mac-Lean Fogg Co., No. 2:12-cv-04057-AKK, 999 F.Supp.2d 1254, 1263, 2014 WL 769451, *6 (N.D.Ala. February 25, 2014) (quoting McIsaac v. WZEW-FM Corp., 495 So.2d 649, 651 (Ala.1986)).
Regarding specifically when claims of sexual harassment may constitute invasion of privacy, the Alabama Supreme Court has noted that “[e]ven the dire afront of inviting an unwilling woman to illicit intercourse has been held by most courts to be no such outrage as to lead to liability” for invasion of privacy. McIsaac, 495 So.2d at 651 (citations omitted). The law in Alabama provides that, “[w]hile asking a co-employee for a date and making sexual propositions usually do not constitute an invasion of privacy, extensive inquiries into one’s sex life or looking up one’s skirt may constitute an invasion of privacy.” Ex parte Atmore Cmty. Hosp., 719 So.2d 1190, 1191 (Ala.1998) (citing Busby v. Truswal Sys. Corp., 551 So.2d 322, 323 (Ala.1989) (emphasis added); Restatement (Second) of Torts § 652B cmt. c, ex. 7). For sexual harassment to actionable as invasion of privacy, “Alabama courts have generally required invasion of privacy claims to allege both ongoing, persistent verbal harassment and unwanted physical *1322contact.” Austin, 999 F.Supp.2d at 1263, 2014 WL 769451, *6 (citations omitted).
The facts regarding the invasion of Rose’s privacy, when viewed in the light most favorable to her, include that Mr. Hammond, a “decision-maker” for CMC, allegedly invaded her privacy by behavior that began about March 2012; specifically, “Hammond began to send inappropriate sexual text messages and make inappropriate comments on the telephone alluding to Plaintiffs hiring being conditioned upon her having sexual relations with him to which the Plaintiff refused to engage in said relations. He texted, ‘Need lovin u want that job.’ ” (Doc. 1, at 11).
This court finds that Rose’s Amended Complaint fails to plead sufficiently that the intrusion into her private affairs was to such a degree as to outrage or cause mental suffering to a reasonable person. See Austin, 999 F.Supp.2d at 1263, 2014 WL 769451, *6. Other than quoting one text message purportedly soliciting “lovin” from the Plaintiff, the Amended Complaint does not state the' frequency or content of Hammond’s phone calls or inappropriate text messages. While unwanted solicitation of sexual relations certainly may be offensive, the Alabama courts have found that such solicitation alone is not so highly offensive ais to constitute the tort of invasion of privacy." Moreover, the Amended Complaint states no specific consequences that Rose suffered as a result of the phone calls and texts, and does not assert even generally that Rose has suffered any physical, mental, or actual damages as a result of the invasion in privacy, except that she was not hired. The content of one text message and mere allegations of other texts or phone calls with no specific facts regarding the frequency or content of them or regarding their impact on Rose do not support a claim of a highly offensive intrusion in this case.
Having reviewed the various cases and examples cited by both parties of circumstances that would constitute an intrusion that would be highly offensive to a reasonable person, this court finds that the facts pled in the Amended Complaint do not rise to that level as a matter of law. Thus, the Defendant’s motion to dismiss as to the invasion of privacy claim is due to be GRANTED and that claim DISMISSED WITHOUT PREJUDICE.
IV. CONCLUSION
For the reasons stated above, the court FINDS that the motion to dismiss is due to be DENIED as to the Plaintiff’s Title VII claim and GRANTED as to the invasion of privacy claim and that claim DISMISSED WITHOUT PREJUDICE. The case will proceed with the Title VII claim. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217071/ | MEMORANDUM**
Richard Orrin Jones appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that the defendants conspired “to throw” a civil suit that challenged the constitutionality of Measure 7 on the Oregon ballot in 2000. We have jurisdiction under 28 U.S.C. § 1291. After de novo review, Nelsen v. King County, 895 F.2d 1248, 1249 (9th Cir.1990), we affirm.
The district court properly dismissed Jones’s action for lack of standing because Jones failed to allege a “distinct and palpable” injury. See Rubin v. City of Santa Monica, 308 F.3d 1008, 1020 (9th Cir.2002) (plaintiff seeking to have certain information included in a ballot designation for a municipal election lacked standing “as a voter and a citizen”). Furthermore, Jones failed to allege that he suffered a sufficiently concrete injury. Cf. Sea Ranch Ass’n v. Calif. Coastal Zone Conservation Comm’ns, 537 F.2d 1058, 1063 (9th Cir.1976) (holding that where the “constitutional question ... turns on the application of a land use restriction to specific parcels of property, no case or controversy is presented absent some indication that the plaintiffs’ rights have been subjected to a real and immediate threat[ ]”).
Similarly, the district court properly denied leave to amend because it was clear that Jones could not amend his complaint to allege standing. See, e.g., Cato v. United States, 70 F.3d 1103, 1109-10 (9th Cir.1995).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217072/ | MEMORANDUM**
Scott A. Wood appeals pro se the district court’s judgment dismissing, for lack of subject matter jurisdiction, Wood’s action alleging that the County violated his constitutional rights by denying him a building permit. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Brady v. United States, 211 F.3d 499, 502 (9th Cir.2000), and we affirm.
The district court properly dismissed Wood’s claim that Thurston County violated his right to be free from an uncompensated regulatory taking and his rights to due process and equal protection, because Wood failed to seek compensation through state remedies, and failed to establish that state remedies would be inadequate. See Austin v. City and County of Honolulu, 840 F.2d 678, 680 (9th Cir.1988) (takings claims are not ripe for federal court review until the plaintiff establishes that the state failed to remedy the alleged violation); Traweek v. City and County of San Francisco, 920 F.2d 589, 593-94 (9th Cir.1990) (ripeness requirement that applies to takings claims also applies to claims for denial of substantive due process, equal protection, and procedural due process).
We do not consider issues Wood raised for the first time in his reply brief. See Medical Lab. Mgmt. Consultants v. Am. Broad. Cos., 306 F.3d 806, n. 8 (9th Cir.2002).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217073/ | MEMORANDUM**
Scott A. Wood appeals pro se the district court’s judgment dismissing for failure to state a claim his 42 U.S.C. § 1983 action alleging that Thurston County Local Rule 80(4), which provides that “oral decisions of the court which are transcribed for any purpose shall be submitted to the judge for correction prior to delivery of the transcript” is unconstitutional, both facially and as applied. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.2000), and we affirm.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217074/ | MEMORANDUM**
Roger W. Knight appeals pro se the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging Fourth and Fourteenth Amendment violations arising out of the impoundment of his vehicle. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002), and may affirm on any ground supported by the record, Flamingo Indus. (USA) Ltd. v. U.S. Postal Serv., 302 F.3d 985, 997 (9th Cir.2002). We affirm.
*454The district court properly granted summary judgment on Knight’s Fourth Amendment claim because the defendants had no Fourth Amendment obligation to offer Knight an opportunity to avoid impoundment of his vehicle. See United States v. Penn, 233 F.3d 1111, 1116 (9th Cir.2000) (discussing with approval United States v. Skillern, 947 F.2d 1268, 1275-76 (5th Cir.1991)).
The district court properly granted summary judgment on Knight’s Fourteenth Amendment claim because the post-deprivation procedures provided under state law satisfied due process. See Wash. Rev. Code § 46.55.120(2)(b); Gilbert v. Homar, 520 U.S. 924, 930-31, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997). Knight’s contention that Seattle Municipal Code section 11.56.105(A) was facially unconstitutional because it did not allow the arresting officer to exercise discretion in impounding a vehicle is not supported by the plain text of the provision. See All Around Underground, Inc. v. State (In re Impoundment of Chevrolet Truck), 148 Wash.2d 145, 60 P.3d 53, 61 (2002) (en banc) (holding that identical language in state statute gave arresting officer discretion).
Because there was no constitutional violation, the district court properly denied injunctive relief.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217075/ | MEMORANDUM**
Barton Anthony Stromski appeals pro se the district court’s order denying his Fed. R.Crim.P. 41(e) motion for the return of property he contends was seized pursuant to a defective warrant. We dismiss Stromski’s appeal for lack of jurisdiction.
This Court may review denial of a Rule 41(e) motion only “if the motion is solely for the return of property and is in no way tied to a criminal prosecution in esse against the movant.” Andersen v. United States, 298 F.3d 804, 807 (9th Cir.2002) (quoting DiBella v. United States, 369 U.S. 121, 131-32, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962)). The indictment issued against Stromski after he filed this appeal effectively deprives this Court of jurisdiction. *455See Bridges v. United States (In re 3021 6th Ave. N., Billings, MT), 237 F.3d 1039, 1041 (9th Cir.2001) (“[E]ven where appellate jurisdiction over this type of order exists at the time of filing, that jurisdiction is lost and the appeal must be dismissed whenever an indictment is returned.”).
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217076/ | MEMORANDUM**
Enrique Ibarra Lopez appeals his guilty-plea conviction and sentence for importing marijuana, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
Lopez claims that the government breached the plea agreement by failing to object to the presentence report, by failing to object at sentencing, and by misprinting a recommended guideline provision. Because Lopez failed to raise his claim below, we review for plain error. See United States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir.2000).
The government did not breach the plea agreement by failing to object to the presentence report, because the report accurately summarized the government’s recommendations. Lopez’s contention that the government’s silence during sentencing constituted breach is equally unavailing, because the record demonstrates that the district court considered but rejected the government’s recommendations.
Lopez is correct in noting that the government’s sentencing summary chart misprinted a relevant guideline provision. This does not amount to “a highly prejudicial error affecting substantial rights,” however. See Maldonado, 215 F.3d at 1051. The district court was aware of the proper guideline provisions, notwithstanding the misprint, and simply declined to follow the recommendation of the plea agreement.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217077/ | MEMORANDUM**
David Lozano Santiago appeals from his guilty plea conviction and sentence for being an illegal alien found in the United States following deportation in violation of 8 U.S.C. § 1326. Santiago’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, (1967), stating there are no arguable issues for review and seeking to withdraw as counsel of record. Santiago has not filed a pro se supplemental brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no issues for review. Counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217078/ | MEMORANDUM**
Ismael Nunez-Martinez appeals from his conditional guilty plea conviction and *457sentence for importation of cocaine, in violation of 21 U.S.C. §§ 952, 960.
Nunez-Martinez’s contention that 21 U.S.C. § 960 is facially unconstitutional following Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that United States v. Harris, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), overrules United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002), and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002), is foreclosed by United States v. Hernandez, 314 F.3d 430, 438 (9th Cir.2002). Nunez-Martinez’s contention that the indictment was defective because it did not allege that Nunez-Martinez had the mens rea as to the drug type and quantity is foreclosed by United States v. Carranza, 289 F.3d 634 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002). Nunez-Martinez’s conviction is
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217079/ | MEMORANDUM**
Antonio Benavidez appeals his 120-month sentence following his guilty plea conviction for distribution of more than 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). We lack jurisdiction, and dismiss.
Benavidez contends that the district court failed to rule on his eligibility for a safety valve departure from the statutory minimum sentence.1 His plea agreement, *458however, waived the right to appeal a sentence within the statutory maximum, as long as the court did not depart upward. The conditions of the waiver were met, and we will enforce it. United States v. Nguyen, 285 F.3d 1179, 1182-84 (9th Cir.2000) (recognizing enforceability of knowing and voluntary waiver of appeal rights).
Benavidez’s claim of ineffective assistance of counsel may be raised by way of a section 2255 motion. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994) (discussing plea agreement waiver not extending to collateral attack alleging ineffective assistance of counsel).
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. At no time did Benavidez request the district court to rule on his eligibility for the safety valve. The defendant's letter pointing to his undisputed lack of prior convictions did not raise the safety valve issue. It is the defendant's burden to show his eligibility for the downward departure, United States v. Ajugwo, 82 F.3d 925, 930 (9th Cir.1996), and he has yet to assert that he truthfully provided the information to the government required by 18 U.S.C. § 3553(f)(5). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224316/ | MEMORANDUM OPINION
ABDUL K. KALLON, District Judge.
Ezeikiel Nevitt pursues this case against United States Steel Corporation under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Doc. 4 at 1. Nevitt alleges that U.S. Steel offered him a position at its plant, contingent on him passing a physical examination, then withdrew the offer after learning Nevitt suffered a back injury at a previous job. Id. at 2-4. Nev-itt also alleges that U.S. Steel violated the medical examination and inquiry provisions of the ADA. Id. at 7. The parties have filed cross motions for summary judgment on the failure-to-hire claim, docs. 25, 29, and U.S. Steel moves for summary judgment on the medical examination and inquiry claim as well. The motions are fully briefed and ripe for review. See docs. 25, 30, 35, 36, 37, 38. Based on a review of the evidence and the law, the court finds that, regardless of whether the evidence is viewed in a light most favorable to Nevitt or to U.S. Steel, there are questions of material fact that preclude the court from granting either party’s motion for summary judgment on the failure-to-hire claim. Therefore, those motions are due to be denied. However, Nevitt has failed to meet his evidentiary burden with regards to his medical examination and inquiry claim. Consequently, U.S. Steel’s motion for summary judgment on that claim is due to be granted.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (alteration in original). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the non-moving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324, 106 S.Ct. 2548 (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” *1326Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); see also Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (all justifiable inferences must be drawn in the non-moving party’s favor). Any factual disputes will be resolved in the non-moving party’s favor when sufficient competent evidence supports the non-moving party’s version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir.2002) (a court is not required to resolve disputes in the non-moving party’s favor when that party’s version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir.1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
II. FACTUAL ALLEGATIONS
The facts underpinning this lawsuit are largely undisputed. On or about January 1, 2011,1 Nevitt suffered a back injury while working at a Cascades Sonoco paper plant when a machine malfunctioned and a load of paper weighing approximately 200 pounds struck him in the back. Doc. 29-1 at 66-68; id., ex. 19. Following the incident, Nevitt experienced pain, numbness, radiculopathy, and episodes of weakness during which his leg would give way. Doc. 35 at 6. To treat his condition, he took narcotics and muscle relaxers, underwent physical therapy, used a TENS unit, and received two epidural steroid injections. Id. He also remained on restricted duty for almost five months. Id. According to Nevitt, by June 2011 his back pain resolved and he was “full[y] active” again at work. Doc. 29-1 at 91-92. As part of his worker’s compensation settlement, Nevitt resigned from Cascades Sonoco. Doc. 30 at 5.
On August 8, 2011, Nevitt applied for a position as a Utility Technician at U.S. Steel. Id. Following an interview, U.S. Steel extended a conditional offer to Nev-itt, contingent on him passing a pre-em-ployment fitness for duty examination, which included a physical examination and an assessment of his relevant medical history. Id. Thereafter, on August 24, 2011, Nevitt underwent a physical examination by a U.S. Steel nurse, doc. 30 at 6, which yielded normal results, doc. 25 at 2. However, during the examination, Nevitt told the nurse about the back injury he suffered at Cascades Sonoco. Id. Consequently, U.S. Steel requested that Nevitt *1327provide additional information about the injury. Id.
Nevitt provided U.S. Steel with two doctor’s notes: one from Dr. Robert Poczatek dated May 12, 2011, and one from Dr. Andrew Cordover, dated May 27, 2011. Doc. 30 at 6. Dr. Poczatek’s May 12, 2011 note indicated that Nevitt continued to report lower back pain, which Nevitt “rate[d] as high as 5-6/10.” Doc. 26-7. Although Dr. Poczatek noted that twisting and frequent forward bending aggravated the pain, he stated that Nevitt could return to “regular work duties” if allowed to take a ten minute break every two hours. Id.2 Dr. Cordover’s May 27, 2011 note also indicated that Nevitt continued to experience back pain, but that Dr. Cordover did not believe “any restrictions [were] necessary for Nevitt at [the] time.” Doc. 26-8.
Based on these two documents, U.S. Steel’s medical director, Dr. Cheryl Szabo, concluded that Nevitt’s ability to work was subject to the following restrictions: a lifting limit of twenty pounds, no repetitive back movements, and a ten-minute break every two hours. Doc. 30 at 7. Dr. Szabo testified that she discounted Dr. Cord-over’s opinion because it appeared to her that Dr. Poczatek was Nevitt’s treating physician, and that Dr. Cordover’s note was the product of a one-time visit. Doc. 26-3 at 76. She also testified, that she restricted Nevitt’s lifting and movement because Dr. Poczatek’s note indicated that twisting and bending aggravated Nevitt’s pain, and that she simply tracked Dr. Poc-zatek in imposing the break restriction. Id. at 129-30.
The utility technician position at U.S. Steel is physically demanding, and requires the ability to regularly lift at least 50 pounds,3 and frequently bend, stoop, crawl, and shovel. Id. at 9. Additionally, because the duties include monitoring furnace temperatures during a short window of time, plant management testified that they could not accommodate a required ten-minute break every two hours. Id. at 8-9. Because Dr. Szabo’s restrictions were incompatible with the requirements of the position, U.S. Steel withdrew Nev-itt’s contingent offer. Doc. 30 at 10.
III. ANALYSIS
Nevitt alleges that U.S. Steel withdrew its contingent job offer because it regarded him as disabled, and that it violated the medical examination and inquiry provisions of the ADA. Id. at 7. The court will address each allegation in turn.
A. Nevitt’s failure-to-hire claim
The purpose of the ADA is to “eliminat[e] ... discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). “ ‘[I]n this Circuit, the burden-shifting analysis of Title VII employment discrimination claims is applicable to ADA claims.’” Dulaney v. Miami-Dade Cnty., 481 Fed.Appx. 486, 489 (11th Cir.2012) (quoting Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1255 (11th Cir.2007)). “Under this burden-shifting analysis, the plaintiff must first establish a prima facie case of discrimination under the ADA by showing (1) he is disabled, (2) he is a qualified individual, and (3) he was subjected to unlawful discrimination because of *1328his disability.” Id. (citing Holly, 492 F.3d at 1255-56).
1. Disability
The ADA defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment....” 42 U.S.C. § 12102(1). An individual is “regarded as” disabled “if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment_”4 42 U.S.C. § 12102(3)(A). However, an individual will not be “regarded as” disabled based on an actual or perceived impairment that is “transitory and minor.” 42 U.S.C. § 12102(3)(B). An impairment is “transitory” if its “actual or expected duration [is] 6 months or less.” Id.
The parties are at odds regarding the proper inquiry for determining whether the ‘transitory and minor’ defense is available to U.S. Steel. Nevitt argues that the analysis centers on whether U.S. Steel perceived Nevitt’s impairment to be ‘transitory and minor.’ Doc. 35 at 8. U.S. Steel counters that the inquiry is instead whether Nevitt’s actual impairment was ‘transitory and minor.’ Doc. 38 at 5-6.
The ADA provides that either an actual or perceived impairment may give rise to a ‘regarded as’ disabled claim. 42 U.S.C. § 12102(3)(A). The court observes, however, that it is often the case that an actual impairment, insignificant though it may be, gives rise to a perceived impairment. The court has found little consistency or concrete guidance regarding the interplay between actual and perceived impairments from courts that have analyzed whether a ‘transitory and minor’ defense is available under such circumstances. Some courts have not only focused on the actual impairment, but have gone a step further and found that if a plaintiff suffers from an actual impairment lasting less than six months, he is barred from bringing a ‘regarded as’ disabled claim, regardless of how the covered entity perceived the impairment. See White v. Interstate Distrib. Co, 438 Fed.Appx. 415, 420 (6th Cir.2011) (finding that “no matter what [the plaintiff] may be able to prove about how [the defendant] perceived his physical condition ... the ADA explicitly states that the ‘regarded as’ definition ‘shall not apply to impairments that are transitory and minor .... There is no question that [the plaintiffs] impairments are transitory, as his doctor expected his restrictions to be in effect for only a month or two’ ”) (quoting 42 U.S.C. § 12102(3)(B)); Valdez v. Minn. Quarries, Inc., No. 12-CV-0801 (PJS/ TNL), 2012 WL 6112846, at *3 (D.Minn. Dec. 10, 2012) (stating that “it is clear under the statute and the implementing regulations that the Court must decide whether an impairment is ‘transitory and minor’ on an objective basis. That question turns not on perception, but on reality”); Dugay v. Complete Skycap Servs., No. CV-10-2404-PHX-GMS, 2011 WL 3159171, at *4 (D.Ariz. July 26, 2011) (finding that “the actual duration of the [plain*1329tiffs disability] was just over three months,” and consequently transitory, and that moreover, “even if [the] [p]laintiff had alleged ... that [the defendant] regarded him as disabled for a longer period, the statute provides an absolute bar to disability status for ‘regarded as’ impairments of six months or less, regardless of employer perceptions”). Others courts háve looked to defendants’ perception of plaintiffs’ impairments. See Gecewicz v. Henry Ford Macomb Hosp. Corp., 683 F.3d 316, 322-23 (6th Cir.2012) (rejecting the plaintiffs ‘regarded as’ disabled claim because there was insufficient evidence to support a claim that the defendant perceived the plaintiff as suffering from an impairment lasting longer than six months); Bailey v. Real Time Staffing Servs., Inc., 927 F.Supp.2d 490, 506 (E.D.Tenn.2012) (stating that “to establish a prima facie case of disability discrimination, the plaintiff must prove that he was perceived as having an impairment that was not transitory or minor”); Saley v. Caney Fork, LLC, 886 F.Supp.2d 837, 851-52 (M.D.Tenn.2012) (finding that “even if Plaintiffs actual impairment were ‘transitory and minor,’ he has produced sufficient evidence showing a genuine dispute of material fact as to whether his perceived impairment was transitory and minor”) (emphasis in original); Davis v. Vt. Dep’t of Corr., 868 F.Supp.2d 313, 327 (D.Vt.2012) (refusing to apply the ‘transitory and minor’ defense at the 12(b)(6) stage because “the allegations suggest that the perceived impairment, if not the actual impairment, lasted longer than six months”).
The court notes that in situations where a plaintiff claims his actual impairment caused a covered entity to regard him as disabled, it is certainly proper for courts to evaluate whether the actual impairment is ‘transitory and minor.’ See e.g., Cobb v. Florence City Bd. of Educ., CV-11-CLS-4132-NE, 2013 WL 5295777 at *10 (N.D.Ala. Sept. 18, 2013) (concluding that although the plaintiff “assert[ed] that [the defendant] regarded him as being disabled because of his knee problems ... [t]he only knee-related problem [the] plaintiff suffered while employed by the [defendant] was an orthoscopic procedure -[that , caused him to be] out of work for approximately three months,” and that consequently the impairment was ‘transitory and minor’); Selkow v. 7-Eleven, No. 8:11-cv-456-T-33EAJ, 2012 WL 2054872, at *12 (M.D.Fla. June 7, 2012) (concluding that the plaintiffs impairment was transitory because it was, by her own admission, “caused solely by her pregnancy and manifested when she was five months pregnant ... [and therefore] could not last another six months from the time the impairment began”). But assessing whether a plaintiffs actual impairment is transitory and minor when a covered entity’s perception of a plaintiffs aetual impairment differs from the actual impairment, and it is the incorrect perception of the impairment that leads the covered entity to regard the plaintiff as disabled would render the perceived impairment prong of § 12102(A) meaningless in all but the rare scenario where a perceived perception has no basis in reality. Such a result flies in the face of the EEOC’s Interpretive Guidance to the ADA, which clearly indicates the drafters of the original ADA understood that:
unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are often just as disabling as actual impairments, and ... correspondingly] desire[d] to prohibit discrimination founded on such perceptions. In passing the original ADA, Congress relied extensively on the reasoning of School Board of Nassau County v. Arline that the negative reactions of others are just as disabling as the actual impact of an impairment. *1330The AD AAA reiterates Congress’s reliance on the broad views enunciated in that decision, and Congress believe[s] that courts should continue to rely on this standard. Accordingly, the ADA Amendments Act broadened the application of the “regarded as” prong of the definition of disability.
Appendix to Part 1630 — Interpretive Guidance on Title I of the Americans with Disability Act, 29 C.F.R. pt. 1630 App. § 1630.2(Z) (emphasis added) (citations omitted) (internal quotation marks omitted).5
In advancing its argument, U.S. Steel notes that the implementing regulations indicate “[w]hether the impairment at issue is or would be ‘transitory and minor’ is to be determined objectively.” Doc. 38 at 6 (quoting 29 C.F.R. §' 1630.15(f)). The court acknowledges that this instruction injects some confusion into the assessment of perceived impairments, because while an actual injury can be objectively evaluated, see Black’s Law Dictionary (9th ed.2009) (defining ‘objective’ as “[o]f, relating to, or based on externally verifiable phenomena, as opposed to an individual’s perceptions, feelings, or intentions”), a perception is inherently subjective, see id. (defining ‘subjective’ as “[biased on an individual’s perceptions, feelings, or intentions, as opposed to externally verifiable phenomena,” and a ‘perception’ as “[a]n observation, awareness, or realization, usu[ally] based on physical sensation or experience; appreciation or cognition. The term includes both the actor’s knowledge of the actual circumstances and the actor’s erroneous but reasonable belief in the existence of nonexistent circumstances”). U.S. Steel’s filing at least implicitly argues that because the regulations demand an objective analysis, perceptions, which are inherently subjective, cannot be evaluated to determine whether they are transitory and minor. Taken to its logical extreme, U.S. Steel’s contention is basically that improper perceptions that lead to discriminatory conduct should not matter precisely because they have no basis in fact. However, when the regulation’s instruction regarding objectivity is viewed in context, it becomes clear that U.S. Steel’s reading is overly broad:
Whether the impairment at issue is or would be “transitory and minor” is to be determined objectively. A covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.
29 C.F.R. 1630.15(f). First, not only does the regulation contemplate the objective assessment of a perception, it contains explicit instructions for conducting that assessment: a covered entity must demonstrate that were the perceived impairment an actual impairment, it would be both ‘transitory and minor.’ Id. Second, the regulation’s statement regarding an objective determination is followed by a description of the specific kind of subjective determination the EEOC deems impermissible, namely that a covered entity may not avail itself of the ‘transitory and minor’ defense by merely claiming it subjectively believed an impairment was ‘transitory and minor.’ *1331When viewed alongside this example, it becomes clear that the purpose of the regulation’s language regarding objective determinations is to close a loophole that, if left unchecked, would make it virtually impossible for a plaintiff mounting a ‘regarded as’ claim to rebut a ‘transitory and minor’ defense because a defendant could raise the defense based entirely on its own supposed perception. Consequently, 29 C.F.R. § 1630.15(f) does not provide support for U.S. Steel’s contention that the court should determine whether Nevitt’s actual impairment was ‘transitory and minor’ instead of whether U.S. Steel perceived he suffered from an impairment that was ‘transitory and minor.’
Finally, the EEOC’s interpretive guidance explicitly indicates how a court should proceed when an actual impairment and a perceived impairment differ:
an employer that terminated an employee with an objectively “transitory and minor” hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have “regarded” the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not “transitory and minor.”
29 C.F.R. pt. 1630 App. § 1630.2(Z). Were the court to follow the approach advanced by U.S. Steel, the employee in this example would not be ‘regarded as’ disabled because the actual injury in question was ‘transitory and minor.’ That is not the result contemplated by the EEOC. To the contrary, the EEOC interpretive guidance clearly indicates that when a perception gives rise to a ‘regarded as’ claim, courts should determine whether the perceived impairment is ‘transitory and minor,’ even if the perception is based on an actual injury that is objectively ‘transitory and minor.’
In sum, while some courts have viewed a covered entity’s perception of an impairment as irrelevant if an actual impairment gave rise to the perception, U.S. Steel has not presented this court with any binding authority compelling it to follow suit. Moreover, the court finds that such an approach is unsupported by the regulations and contradicts the intention of the ADA and AD AAA’s drafters as well as the approach advocated by the EEOC. Consequently, the court’s next step is to determine whether U.S. Steel perceived Nevitt as suffering from an impairment that was ‘transitory and minor.’
U.S. Steel indisputably perceived that Nevitt suffered from an impairment that was not ‘transitory and minor.’ As explained above, an impairment is ‘transitory’ if its “actual or expected duration [is] 6 months or less.” 42 U.S.C. § 12102(3)(B). U.S. Steel does not dispute that at some point between August 26, 2011, when U.S. Steel requested additional medical records from Nevitt regarding his physical condition, see doc. 30 at 6, and September 15, 2011, when U.S. Steel revoked its contingent offer of employment, Dr. Szabo concluded that unless U.S. Steel placed Nevitt under significant restrictions, Nevitt would be unable to perform the duties of a utility technician without endangering himself or others, id. at 10, because of the injuries he sustained at the beginning of January 2011, id. at 7. In other words, Dr. Szabo perceived Nevitt as continuing to be impaired by his injuries well over six months after they occurred, and U.S. Steel adopted that perception when it withdrew its contingent offer based on Dr. Szabo’s findings. Id. at 10. Because Dr. Szabo and U.S. Steel perceived Nevitt as suffering from an impairment that lasted more than six months, they perceived him as suffering from an impairment that was not transitory. Consequently, the -‘transitory *1332and minor’ defense is not available to U.S. Steel, and Nevitt has established a prima facie case that U.S. Steel regarded him as disabled, and therefore a prima facie case that he was disabled for the purposes of the ADA.
Moreover, even if the court conducted the ‘transitory and minor’ analysis advocated by U.S. Steel, summary judgment would be improper because there is a genuine issue of material fact regarding whether Nevitt’s actual impairment was ‘transitory and minor.’6 Nevitt concedes that his actual impairment resolved less than six months after the accident. Doc. 35 at 11. Therefore, it is undisputed that Nevitt’s actual injury was transitory.7 A fact-finder could agree with U.S. Steel that Nevitt’s impairment was also minor because it did not cause him to miss work, by May 2011 he was no longer subject to work restrictions because of his condition, he sought no further medical treatment for his condition after Dr. Cordover examined him on May 27, 2011, and by his own account, his pain resolved by June 2011. Doc. 30 at 14; id. at n. 2. But, a fact finder could also conclude that Nevitt’s account of back pain that lasted for almost six months, id. at 14, combined with the treatment he received for his condition, which included two epidural steroid injections, prescribed narcotics and muscle relaxers, physical therapy, and the use of a TENS unit, doc. 35 at 6, indicates that his impairment was far more serious than “common ailments like the cold or flu” that the EEOC considers a proper basis for a ‘transitory and minor’ defense. 29 C.F.R. Pt. 1630 App., § 1630.2(1). As with much of the remaining matters in this case, the question largely hinges on Nevitt’s credibility, which is not a matter the court may properly evaluate at this juncture. See *1333Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir.2007) (stating that “[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment”) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Consequently, regardless of whether the court assesses if Nevitt’s actual impairment was ‘transitory and minor’ or if U.S. Steel perceived it to be ‘transitory and minor,’ U.S. Steel is not entitled to summary judgment based on its argument that Nevitt has failed to present a prima facie case that he was disabled.
2. Qualified Individual
In addition to showing that he is disabled, to establish a prima facie case of discrimination under the ADA, a plaintiff must show he is a qualified individual. Dulaney, 481 Fed.Appx. at 489 (citing Holly, 492 F.3d at 1255-56). A qualified individual is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
A disabled individual cannot be qualified for a specific job if he poses a “direct threat” to the health or safety of himself or others that cannot be eliminated by reasonable accommodations. 42 U.S.C. § 12111(3); see also Pinckney v. Potter, 186 Fed.Appx. 919, 925 (11th Cir.2006). The ADA defines a “direct threat” as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). Pertinent regulations extend “the definition of ‘direct threat’ to include threats to the worker himself.” Pinckney, 186 Fed.Appx. at 925 (citing 29 C.F.R. § 1630.2(r); Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 87, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002)) (upholding 29 C.F.R. § 1630.2(r)).
Whether Nevitt posed a ‘direct threat,’ as U.S. Steel contends, doc. 30 at 19-20, presents a question of material fact. On one hand, Nevitt contends that by June 2011, he no longer experienced back pain associated with his injury, doc. 30, ex. A at 192, (a contention U.S. Steel relies upon when arguing that Nevitt’s injury was ‘transitory and minor,’ doc. 30 at 14), that he was healthy when he applied for the position with U.S. Steel, doc. 30, ex. A at 193, and that the restrictions imposed by Dr. Szabo were unnecessary to ensure his safety, id. at 270. Additionally, the pre-employment physical examination conducted by U.S. Steel yielded normal results, and Dr. Szabo formulated her restrictions based on medical records that contained conflicting opinions regarding whether Nevitt needed to perform his former job at Cascades Sonoco under restrictions and that could be construed as stale. On the other, Nevitt’s condition had not improved between his initial injury in January 2011 and when he saw Dr. Poczatek and Dr. Cordover in May 2011, as he continued to complain of back pain, and in the absence of any documentation indicating otherwise, a fact finder could reasonably conclude his condition did not improve between May 2011 and when he applied for a position with U.S. Steel in August 2011. While Nevitt’s U.S. Steel pre-employment physical examination yielded normal results, Dr. Poczatek and Dr. Cordover also conducted physical examinations of Nevitt when determining if he should work under restrictions at Cascades Sonoco, and those examinations also yielded essentially normal results, in spite of Nevitt’s continued complaints of back pain. Doc. 26-3 at 71. Moreover, as Dr. Szabo noted during her deposition, “people *1334never come into a pre employment physical complaining of pain.” Doc. 26-3 at 148-49. Finally, although Dr. Cordover determined that Nevitt could perform his job at Cascades Sonoco without restrictions, a reasonablé fact finder could conclude that Dr. Cordover’s determination does not bear on whether Nevitt could safely perform a different job at a different plant. In sum, determining whether Nevitt posed a ‘direct threat’ hinges on an assessment of his credibility and the weighing of the evidence, which are determinations reserved to a jury. See Allen, 495 F.3d at 1315 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
Because the briefing and evidentiary submissions indicate there is a question of material fact regarding whether Nevitt was a qualified individual, granting summary judgment to either party on Nevitt’s failure-to-hire claim is improper. See Pinckney, 186 Fed.Appx. at 926 (finding summary judgment was improper when “factual questions remained as to whether [the plaintiff] was a qualified individual”) (internal quotation marks omitted). Therefore, Nevitt’s motion for partial summary judgment is denied and U.S. Steel’s motion for summary judgment as to count I of the amended complaint is denied.
B. Nevitt’s medical examination and inquiry claim
Nevitt alleges in count II that U.S. Steel violated the medical examination and inquiry section of the ADA. Specifically, Nevitt claims that U.S. Steel “refused to hire [Nevitt] because of out-dated and inapplicable medical information,” which U.S. Steel “improperly used to screen out [Nevitt]” based on criteria that “was not job-related and consistent with business necessity.” Doc. 4 at 7.
As a preliminary matter, U.S. Steel contends that it is entitled to summary judgment on Nevitt’s medical examination and inquiry claim because Nevitt failed to file an EEOC charge of such a violation. Doc. 30 at 22. Although EEOC charges are not subject to strict interpretation, “a ‘plaintiffs judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’ ” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir.2004) (quoting Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th Cir.2000)). Nev-itt’s EEOC charge reads as follows:
Around the middle of August 2011, I applied for a utility man position with [U.S. Steel]. I received three interviews and was offered the position around the end of August 2011, pending a physical exam with the company physician. During the exam, I informed Dr. Larry Anthony that I had been previously treated for a disability as defined in the Americans with Disabilities Act. Dr. Anthony instructed me to provide a physician’s release attesting to my ability to perform the essential functions of the job. I did as instructed. However, shortly after providing the doctor’s release, the recruiting department sent me an email stating that I did not meet the physical requirements for the utility man position, and, therefore, they were rescinding the job offer. I believe I was discriminated against and regarded as disabled, in violation of the Americans with Disabilities Act of 1990, as amended.
Doc. 29-1, ex. 16. In sum, Nevitt’s EEOC charge states that U.S. Steel discriminated against him after he provided U.S. Steel with medical records and underwent a physical examination. The court finds this sufficient to set forth a claim that U.S. Steel violated the ADA’s medical examination and inquiry provisions, or, at a bare *1335minimum, that in the course of investigating Nevitt’s discrimination claim, an EEOC investigation would encompass a medical examination and inquiry claim. Consequently, U.S. Steel’s argument regarding Nevitt’s EEOC charge is unconvincing.
Turning to the substance of the medical examination and inquiry claim, the ADA’s examination and inquiry provisions state that:
A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if — ...
(C) the results of such examination are used only in accordance with this subchapter.
42 U.S.C. § 12112(d)(3).8
The parties agree that the question of whether U.S. Steel improperly used Nev-itt’s medical information hinges on whether U.S. Steel “made a reasonably informed and considered decision” before withdrawing its conditional offer. See doc. 30 at 24; doc. 35 at 21 (each quoting Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir.2001)). Here, Dr. Szabo reviewed two medical reports and discounted the report prepared by Dr. Cordover because it appeared to be the result of a one-time-visit. Doc. 26-3 at 76. She relied upon the report prepared by Dr. Poczatek because it appeared he was Nevitt’s treating physician, and applied the restrictions he imposed because the report contained no indication that Dr. Poczatek intended them to be temporary. Id. Consequently, Dr. Szabo’s decision, which she based on the materials provided to her by Nevitt, is distinguishable from the examples of unreasonable decisions cited by Nevitt, which were based upon stereotypes and generalizations. See doc. 35 at -21-22 (citing Lowe, 244 F.3d at 1309 (finding that a doctor’s decision was improperly based, in part on his “assumption that all double amputees have the same limitations”); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 31 (1st Cir.2002) (fact question existed as to whether an employer “based its decision on a stereotype about one-handed persons”)). While Nevitt is correct that Dr. Szabo could have requested that Nevitt undergo further testing, he cites no authority indicating that she was required to do so in order to make a reasonably informed and considered decision. C.f. Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir.1998) (noting that “[i]n deciding whether an employer rea*1336sonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action”); see also Solorio v. Am. Airlines, Inc., No. 00-3780-CIV, 2002 WL 485284, at *6 (S.D.Fla. Feb. 28, 2002) (noting that “[a]n employer complies with the ADA when it bases its employment decision on objective, reliable evidence of the applicant’s work restrictions (i.e. the medical opinion of the applicant’s own doctor ”) (emphasis added)).
Similarly, Nevitt provides the court with no legal basis for finding that Dr. Szabo based her decision on stale information. The regulations require that a covered entity’s assessment of whether an individual poses a ‘direct threat’ “shall be based on a reasonable medical judgment that relied on the most current medical knowledge and/or the best available objective evidence.” Lowe, 244 F.3d at 1308 (quoting 29 C.F.R. 1630.2(r)). In Lowe, the Eleventh Circuit held that the defendant’s determination that the plaintiff was a ‘direct threat’ “was not based ... on particularized facts using the best available objective evidence as required by the regulations” in part because it was based on restrictions a doctor employed by the defendant formulated nine months after the doctor performed a “cursory” examination of the plaintiff and an additional eight months passed before the defendant based its decision that the plaintiff would be a ‘direct threat’ on the restrictions. Id. at 1309. The roughly three-month interval between Dr. Poczatek and Dr. Cordover’s evaluations and when Dr. Szabo imposed restrictions on Nevitt is not long enough to compel the court to make a similar determination on the medical examination and inquiry claim.
Based on the facts discussed above, Nevitt has failed to show that Dr. Szabo made an unreasonably informed and ill-considered decision. That U.S. Steel may have been wrong in concluding that Nevitt posed a direct threat as it relates to the failure to hire claim does not mean that it failed to reach a reasonably informed decision in the context of the medical examination and inquiry claim. See Solorio, 2002 WL 485284, at *6.
Because Nevitt has failed to produce evidence indicating that U.S. Steel’s decision to revoke its conditional offer was not based on a reasonably informed and considered decision, he has failed to meet his burden on the medical examination and inquiry claim. Consequently, U.S. Steel’s motion for summary judgment as to count II of the amended complaint is granted.
IV. CONCLUSION
For the reasons stated above, because there is a question of material fact regarding whether Nevitt was a qualified individual with a disability, Nevitt’s motion for partial summary judgment and U.S. Steel’s motion for summary judgment as to count I of the amended complaint are denied. However, because Nevitt fails to meet his burden as to his medical examination and inquiry claim, U.S. Steel’s motion to dismiss count II of the amended complaint is granted. The court will enter a separate order consistent with this opinion.
ORDER
In accordance with its Memorandum Opinion, doc. 39, the court hereby GRANTS IN PART Defendant United States Steel Corp.’s motion for summary judgment, doc. 28. Plaintiff Ezeikiel Nev-itt’s medical examination and inquiry claim is DISMISSED WITH PREJUDICE. As to Nevitt’s remaining failure-to-hire claim, *1337both Nevitt’s, doc. 25, and U.S. Steel’s, doc. 28, motions for summary judgment are DENIED. This case is set for a final pretrial conference on June 16, 2014, at 2:15 p.m. at the Hugo L. Black U.S. Courthouse in Birmingham, Alabama. The court directs the parties’ attention to the attached pretrial conference instructions. This case is set for trial August 4, 2014, also at the Hugo L. Black U.S. Courthouse in Birmingham, Alabama.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
PRE-TRIAL DOCKET
HON. ABDUL K. KALLON, PRESIDING
BIRMINGHAM, ALABAMA
This case is set for a pre-trial hearing pursuant to Rule 16 of the Federal Rules of Civil Procedure. A conference-type hearing will be held in chambers in the Hugo Black Federal Courthouse in Birmingham, Alabama at the time indicated.
The hearing will address all matters provided in Rule 16, including the limitation of issues requiring trial, rulings on pleading motions, and settlement possibilities.
Counsel attending the conference are expected to be well-informed about the factual and legal issues of the case, and to have authority to enter appropriate stipulations and participate in settlement discussions. Counsel appearing at the conference mil be required to proceed at trial notwithstanding the naming of others as designated trial counsel.
Promptly upon receipt of this notice, plaintiffs counsel is to initiate discussions with other counsel aimed at ascertaining which basic facts are not in dispute, at clarifying the parties’ contentions (for example, just what is denied under a “general denial”) and at negotiating workable procedures and deadlines for remaining discovery matters. At least four (k) business days in advance of the conference, plaintiffs counsel is to submit to chambers (via email at kallon chambers@alnd. uscourts.gov) a proposed Pre-trial Order in WordPerfect format, furnishing other counsel with a copy. It is anticipated that in most cases the proposed order, with only minor insertions and changes, could be adopted by the court and signed at the close of the hearing.
A sample of a proposed Pre-trial Order is available on the Chamber web site (www.alnd.uscourts.gov/Kallon/Kallonpage. htm) to illustrate the format preferred by the court and also to provide additional guidance and instructions. Each order must, of course, be tailored to fit the circumstances of the individual case.
Counsel drafting this proposed order should consider the utility this document will provide for the litigants, the jury, and the court alike. The court anticipates using the pretrial order to (1) identify and narrow the legal and factual issues remaining for trial, and (2) provide jurors with the legal and factual context of the dispute. This order should not revisit at length arguments made in previous filings with the court, nor should it serve as another venue for adversarial posturing. Pretrial orders should be simple, short, and informative.
IN ANY CASE WHERE COUNSEL HAVE ANNOUNCED SETTLEMENT TO THE COURT, A CONSENT JUDGMENT IN SATISFACTORY FORM MUST BE PRESENTED TO THE COURT PRIOR TO THE SCHEDULED TRIAL DATE; OTHERWISE, THE CASE WILL BE DISMISSED WITH PREJUDICE.
. The parties’ filings and evidentiary material contain inconsistent dates for Nevitt's injury. See doc. 25 at 2 (Nevitt’s brief in support of his partial motion for summary judgment stating that the injury occurred in "January 2011”); doc. 30 at 3 (U.S. Steel’s brief in support of its motion for summary judgment stating that the injury occurred on January 3, 2011); doc. 29-1 at 68-69 (Nevitt's deposition in which he is unable to recall the exact date of the accident); id.., ex. 2 (medical record stating the injury occurred on December 31, 2010); id., ex. 19 (proposed worker’s compensation settlement stating the injury occurred on January 3, 2011); id. (medical record stating the injury occurred on January 1, 2011). This disparity has no bearing on the court’s analysis.
. Dr. Poczatek only intended for this restriction to last for four weeks, but its limited scope was not indicated in the note Nevitt provided to U.S. Steel. Doc. 25 at 3, n. 1.
. Nevitt notes that while Dr. Szabo testified that utility technicians regularly lift objects weighing eighty to one hundred pounds, U.S. Steel managers testified that the job only requires lifting fifty pounds. Doc. 25 at 6. At any rate, fifty pounds is still significantly heavier than the twenty pound lifting restriction Dr. Szabo placed on Nevitt.
. Until recently, the ADA required a plaintiff alleging a 'regarded as' claim to prove that the perceived impairment "substantially limited a major life activity.” 42 U.S.C. § 12102(2) (2008), amended by ADA Amendments Act (ADAAA) of 2008, Pub. L. No. 110— 325, 2008 Stat. 3406 (2008) (codified as amended at 42 U.S.C. §§ 12101-12102). The ADAAA explicitly eliminated the substantial limitation requirement for ‘regarded as’ claims. See 42 U.S.C. § 12102(3)(A) (stating that an individual who is ‘regarded as' disabled is considered disabled under the ADA, "whether or not the impairment limits or is perceived to limit a major life activity”).
. “[Ajlthough administrative interpretations of an Act by its enforcing agency are not controlling, they ‘do constitute a body of experience and informed judgment to which [courts] may properly resort for guidance.’ " Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1214 (11th Cir.2010) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)).
. U.S. Steel notes that "[w]hile ‘transitory’ is defined ... at 42 U.S.C. § 12102(3) and further explained by 29 C.F.R. § 1630.15(f), neither the statute nor any regulation defines ‘minor,’ ” and that "[a] number of courts have combined ‘transitory and minor,' inferring that a transitory impairment (less than 6 months) is ipso facto a minor impairment.” Doc. 30 at 16 n. 3 (citing Cobb, 2013 WL 5295777, at * 10; Selkow, 2012 WL 2054872, at *15; Dugay, 2011 WL 3159171). The court declines to follow suit, as doing so would ignore the plain language of the statute, which states that an individual will not be "regarded as” disabled based on an impairment that is "transitory and minor,” 42 U.S.C. 12102(3)(B) (emphasis added), and the EEOC interpretive guidance, which notes that "the regulations provide an exception to coverage under the 'regarded as’ prong where the impairment on which a prohibited action is based is both transitory ... and minor,” 29 C.F.R. Pt. 1630 App., § 1630.2(7) (emphasis added). Additionally, while the court agrees with U.S. Steel that the statute and regulations do not define 'minor,' the interpretive guidance does note that absent the 'transitory and minor' defense, the 'regarded as’ prong of the ADA's definition of disability "would have covered individuals who are regarded as having common ailments like the cold or flu, and this exception responds to concerns ... regarding potential abuse of this provision and misapplication of resources on individuals with minor ailments that last only a short period of time,” id. (citation omitted), which gives some indication of what types of impairments the EEOC considers ‘minor.’
. Nevitt argues that although he concedes his injury resolved within six months, his impairment should not be treated as transitoiy because, according to Dr. Szabo, his "injury was subject to aggravation and exacerbation in the future.” Doc. 35 at 11. The cases Nevitt cites in support of this argument do not stand for the proposition that the possibility of future recurrence renders an impairment non-transitory. In Ruggles v. Va. Linen Serv., the plaintiff had been "diagnosed [with] a permanent degenerative condition.” No. 6:12-cv-00064, 2013 WL 4678408, at *6 n. 12 (W.D.Va. Aug. 30, 2013). In Cohen v. CHLN, Inc., the "[p]lantiff offer[ed] significant evidence that he was perceived to have a severe, on-going impairment.” Civil Action No. 10-00514, 2011 WL 2713737, at *8 (E.D.Pa. July 13, 2011).
. Additionally, 29 C.F.R. § 1630.14(b)(3) provides that "if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity.” The criteria U.S. Steel relied upon when it revoked Nevitt's conditional offer was job-related and consistent with business necessity. Nevitt contends that Dr. Szabo placed restrictions on him because she believed he would injure himself in the future, not because she believed he was presently unable to perform the functions of a utility technician, and that such a belief is an insufficient basis for concluding that Nevitt was a ‘direct threat.' Doc. 25 at 15-16. However, Dr. Szabo repeatedly testified that she placed restrictions on Nevitt because she did not believe he could perform the heavy labor required of a utility technician based on his injury. See Doc. 25-3 at 44, 46-47, 97, 99, 115, 139. Whether an employee can safely execute his duties is clearly job-related criteria and consistent with business necessity. C.f. Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 960 (10th Cir.2002) (upholding a jury verdict finding that "unsubstantiated speculation about future risks from a perceived injury” was not a job-related criteria). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224317/ | MEMORANDUM OPINION
KARON OWEN BOWDRE, Chief Judge.
This case involves a clinical research trial performed on premature infants with low birth weights. The purported class action suit-brought by the infant Plaintiffs, by and through their parents, alleges that the members of the University of Alabama *1339at Birmingham Institutional Review Board were negligent and lacked the informed consent of the participants, among other allegations. (Doc. 32).
This matter comes before the court on “Plaintiffs’ Motion to Compel Production of Institutional Review Board Documents Allegedly Protected by the Peer-Review Privilege.” (Doc. 45). In their motion, Plaintiffs ask the court to compel UAB to produce the documents generated by the Institutional Review Board (“IRB”) relating to “Surfactant Positive Pressure, and Oxygenation Randomized Trial” (“SUPPORT”). Defendants argue that the IRB’s documents are privileged under Alabama Code § 22-21-8. (Doc. 46). The substance of both parties’ arguments focuses on whether § 22-21-8 applies to the UAB IRB.
For the reasons discussed below, the court finds that the privilege from § 22-21-8 applies to the UAB IRB. Therefore, the court will deny the motion to compel without prejudice to Plaintiffs refiling at a later time, if necessary.
I. Alabama Code § 22-21-8 Applies to the UAB IRB
The key point of contention among the parties is whether. Alabama Code § 22-21-8 applies to the UAB IRB documents and, even if it applies, whether federal regulations preempt its use here. The application of this particular statute to an IRB is a matter of first impression in Alabama, although other state and federal courts have addressed the peer review privilege statutes of other states that have varying degrees of similarity to the Alabama version.
The function of § 22-21-8 is to render certain materials confidential and prevent those materials from being “subject to discovery or introduction in evidence in any civil action against, a health care professional or institution arising out of matters which are the subject of evaluation and review for accreditation, quality assurance or similar functions, purposes, or activities.” Ala.Code § 22-21-8 (1975). On its face, § 22-21-8 applies to “materials prepared by an employee, advisor, or consultant of a hospital, clinic, or medical staff and to materials prepared by an employee, advisor or consultant of an accrediting, quality assurance or similar agency or similar body....” Id. (emphasis added).
The Alabama Supreme Court has noted the title of the Act creating the statute— “To provide for the confidentiality of all written materials and activities concerning the accreditation, quality assurance, or similar function of any hospital, clinic, or medical staff’ — and interpreted § 22-21-8 expansively, “[gjiven the broad language used by the Legislature in the title of the Act.” Ex parte Krothapalli, 762 So.2d 886, 888-39 (Ala.2000) (holding that physician’s applications for staff privileges were protected by § 22-21-8, but that the statute would not preclude discovery of records obtained from sources other than the hospital review committee).
As such, the primary questions for this court are whether (1) the IRB’s documents were created for quality assurance purposes, (2) the IRBs documents are needed to guarantee the high quality of care for patients, and (3) the confidentiality of the reports and statements is necessary. See Ex parte Fairfield Nursing & Rehab. Ctr., L.L.C., 22 So.3d 445, 450 (Ala.2009). In support of its position that the privilege applies, UAB submitted affidavits describing the purpose, function, and practices of the UAB IRB. (Docs. 46-1, 46-2). The affidavits for Sheila Moore and Dr. Ferdinand Urthaler provide compelling evidence that the IRB’s function regarding SUPPORT involved evaluating and seek*1340ing to improve the quality of health care, as well as evaluating the qualifications, competence, and performance of providers of health care. The affidavits also address the necessity of confidentiality to the integrity of the IRB process. Thus, the IRB documents appear to fall in the protection of § 22-21-8.
Plaintiffs rely on three cases finding that IRBs are not entitled to protection under- state peer review statutes. In two of these cases, however, the underlying statute at issue, unlike the Alabama statute, made no mention of quality assurance. See P.J. v. Utah, 247 F.R.D. 664 (D.Utah 2007) (examining Utah Code Ann. § 26-25-8); Esdale v. Am. Cmty. Mut. Ins. Co., No. 94C4600, 1995 WL 263479, at *2 (N.D.Ill. May 3, 1995) (examining Texas Health and Safety Code, § 161.032 and § 5.06 of Texas Revised Civil Statutes Annotated 4495b). Furthermore, in all three of these cases that Plaintiffs cite, the courts narrowly construed the underlying peer review privileges. See Konrady v. Oesterling, 149 F.R.D. 592 (D.Minn.1993) (turning on the fact that the Minnesota Supreme Court considered the privilege to be “narrowly limited”); P.J., 247 F.R.D. at 671 (noting that caution should be used in expanding the role of the federal common law of privilege in discovery); Esdale, 1995 WL 263479, at *3 (noting that' “because evidentiary privileges operate to exclude relevant evidence and therefore to block the judicial fact finding function, they are not favored and, where recognized must be' narrowly construed.”). In Esdale, the one case where the federal court itself imposed the narrow construction rather than relying on a narrow construction from the state court, the Office of the Attorney General of Texas subsequently issued an opinion disagreeing with the Northern District of Illinois’s interpretation of Texas law in Esdale. Tex. Atty. Gen. Op. OR2001-0912 (Tex.A.G.) (“[I]n contrast to the Esdale court, this office does believe the Texas legislature intended to cover entities such as the IRB.... ”).
Here, however, Alabama courts have broadly interpreted § 22-21-8. See Krothapalli, 762 So.2d at 838-39. Thus, this case becomes more analogous to those cases finding IRBs to be protected under the peer review privilege. See KD, 715 F.Supp.2d at 593 (quoting Baltimore Sun Co. v. Univ. of Md. Medical Sys. Corp., 321 Md. 659, 584 A.2d 683, 687 (1991)) (finding the peer review' privilege applied-to the IRB, in part, because Maryland’s statute “provided ‘broad statutory protection’ ”); Pomona Valley Hosp. Med. Ctr. v. Superior Ct. of Los Angeles Cnty., 209 Cal.App.4th 687, 696, 147 Cal.Rptr.3d 376 (Cal.Ct.App.2012) (holding that “California’s protection is broader than Minnesota’s peer review statute.”); Doe v. Ill. Masonic Med. Ctr., 297 Ill.App.3d 240, 231 Ill.Dec. 411, 696 N.E.2d 707, 710 (1998) (holding that “the Illinois statute is broader than the Minnesota statute construed in Konrady ”). Given the broad scope of the Alabama privilege supported by the language of the statute, the court finds that the documents generated by the IRB are privileged under § 22-21-8 because they involve quality assurance review of the SUPPORT program.
II. Federal Law Does Not Preempt Alabama Code § 22-21-8
Plaintiffs argue that the federal statutes and regulations governing Institutional Review Boards — 42 U.S.C. § 289 and 45 C.F.R. § 46.101 et seq. — preempt the application of Alabama Code § 22-21-8. Whether these federal statutes and regulations preempt any state peer review privileges is an issue of first impression in the Eleventh Circuit. The court finds that nothing in these statutes or regulations evidences a Congressional intent to *1341preempt state peer review privileges. The federal statutes and regulations in question make no mention of civil discovery much less peer review privileges, and “congressional and regulatory silence usually defeats a claim of preemption, not the other way around.” Planned Parenthood of Ind., Inc. v. Comm’r of Indiana State Dept. Health, 699 F.3d 962, 985 (7th Cir.2012) (citing Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 178 L.Ed.2d 51 (2009) (Thomas, J., concurring in the judgment)).
Moreover, the fact that a division of HHS, the agency promulgating the regulations in question, argued under similar circumstances that Maryland’s peer review privilege protected its IRB strongly suggests that the IRB regulations were not intended to preempt Alabama’s peer review privilege. See KD v. U.S., 715 F.Supp.2d 587, 588 (D.Del.2010) (finding the National Heart Blood and Lung Institute’s IRB documents were protected under Maryland’s peer review privilege). As a result, the court finds that 45 C.F.R. § 46.101 et seq. do not preempt Alabama Code § 22-21-8.
III. Conclusion
For these reasons, the court finds that the § 22-21-8 privilege applies to the UAB IRB. However, the parties have argued in generalities about certain documents at issue without identifying the precise documents sought by Plaintiffs or withheld by Defendants. In fact, the Defendants admit that the privilege does not apply to some documents within the IRB records that can be obtained from other souróes but without precise description. In short, the court has insufficient information concerning what documents have been produced and which withheld documents Plaintiffs still seek to determine whether specific documents are within or without the protection of the privilege. This imprecision prevents the court from carefully crafting limitations to guide the parties in discovery.
The court ORDERS the parties to communicate in an attempt to agree among themselves on which documents should be covered by the privilege based on this court’s finding that the privilege generally applies to the UAB IRB. The court DENIES the motion to compel WITHOUT PREJUDICE to Plaintiffs’ refiling at a later time if the parties are unable to agree on the scope of the privilege as to particular documents.
ORDER
This matter comes before the court on “Plaintiffs’ Motion to Compel Production of Institutional Review Board Documents Allegedly Protected by the Peer-Review Privilege.” (Doc. 45). In their motion, Plaintiffs ask the court to compel UAB to produce the documents generated by the Institutional Review Board (“IRB”) relating to “Surfactant Positive Pressure, and Oxygenation Randomized Trial” (“SUPPORT”). Defendants argue that the IRB’s documents are privileged under Alabama Code § 22-21-8. (Doc. 46). The substance of both parties’ briefs focuses on whether § 22-21-8 applies to the UAB IRB. For the reasons discussed below, the court finds that the privilege from § 22-21-8 applies to the UAB IRB, but that the generalities in which the parties have argued about documents prevent the court from carefully crafting limitations to guide the parties in discovery,
The court ORDERS the parties to communicate and agree among themselves on which specific documents should be covered by the privilege based on this court’s finding that the privilege exists and generally applies to the UAB IRB. Furthermore, the court DENIES the motion to compel WITHOUT PREJUDICE to Plain*1342tiffs’ refiling at a later time if the parties are unable to agree on the scope of the privilege. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224318/ | MEMORANDUM OPINION AND ORDER
W. HAROLD ALBRITTON, Senior District Judge.
I.INTRODUCTION
This action is before the court on a Motion to Remand (Doc. # 11) filed by the Plaintiff, Mema C. Morris (“Morris”), on April 7, 2014.
The Plaintiff originally filed a Complaint in this case in the Circuit Court of Montgomery County, Alabama on February 14, 2014. The Plaintiff brings a claim for the replacement cost of household items that were allegedly damaged or not delivered in connection with her move from Dupont, Washington to Montgomery, Alabama.
On March 19, 2014, Mayflower Transit, LLC timely removed the case to this court on the basis of federal-question jurisdiction, alleging that removal was proper because the action “is a civil action against a motor carrier of household goods to recover damages for the alleged loss, damage or injury of an interstate shipment of household goods arising under 49 U.S.C. § 14706 [“the Carmack Amendment”], wherein the amount in controversy exceeds the sum of $10,000, exclusive of interest and costs.” (Doc. # 1 ¶ 7). Defendants Lincoln Moving & Storage, Inc. and APACA Van Lines, Inc. consented to removal. (Doc. # 1-3).
For reasons to be discussed, the Motion to Remand is due to be DENIED.
II.MOTION TO REMAND STANDARD
Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1994); Wymbs v. Republican State Exec. Comm., 719 F.2d 1072, 1076 (11th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct. 1600, 80 L.Ed.2d 131 (1984). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673.. Because federal court jurisdiction is limited, the Eleventh Circuit favors remand of removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095.
III.FACTS
The Complaint alleges the following facts: ■
Morris is enlisted in the United States Army and has been assigned to attend school at Maxwell Air Force Base in Montgomery, Alabama ’ since July, 2013. On June 6, 2013, Morris contracted with Defendant Lincoln Moving and Storage, Inc. to move household items from Dupont, Washington to Montgomery, Alabama. The Army “paid Lincoln Moving and Storage, Inc. with the expectation that ... they would deliver Plaintiffs household items on time and in good condition.” (Doc. # 1-4 ¶ 7). Defendant APACA Van Lines, Inc., an agent of Lincoln Moving and Storage, Inc., delivered the household items to Morris, but “Defendants failed to deliver items as specified in the contract and were two weeks late making the first delivery.” (Id. ¶ 8). Further, the Defendants “still to-date have not delivered all the items picked up from the Plaintiff[,] and. some of the items delivered were damaged.” (Id.). As a result, Morris “has *1344spent the last six months trying to resolve this matter[,] but Defendants [have] refuse[d] to adequately compensate [Morris] for the items lost or misplaced.” (Id. ¶ 9). Morris requests $30,000 as the replacement cost for the damaged and missing items.1
IV. DISCUSSION
In her Motion to Remand, Plaintiff argues that “[f]ederal question jurisdiction exists only when a federal question is presented on the face of [a] plaintiffs properly pleaded complaint.” (Doc. # 11 ¶ 2). Accordingly, “[t]he plaintiff is relying on the “well pleaded doctrine rule’ [in support of remand,] where the plaintiff is the master of the claim and reliefs] exclusively on state law for this action.” (Id. ¶ 3). In response, the Defendants argue that the Carmack Amendment is one of the few examples of complete preemption, whereby this court has federal-question jurisdiction over the claim despite the absence of a federal claim on the face of the complaint. Specifically, because the Carmack Amendment completely preempts state-law claims “arising from failures in the transportation and delivery of goods,” the Plaintiffs claim arises under federal law. (Doc. # 15 at 5).
The' court first notes that the Complaint in this case does not specifically allege a federal claim on its face. Thus, under normal circumstances, the well-pleaded complaint rule might dictate that federal-question jurisdiction would be lacking. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (“The presence or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint.”).
“There does exist, however, an ‘independent corollary’ to the well-pleaded complaint rule ... known as the ‘complete pre-emption doctrine.’ ” Id. Under that doctrine, “the pre-emptive force of a statute [can be found to be] so ‘extraordinary’ that it ‘converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Id. (quoting Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987)). The issue in this case is whether the Carmack Amendment completely preempts Morris’s claim, such that the complaint in this case is converted “ ‘into one stating a federal claim for purposes of the well-pleaded complaint rule.’ ” Id.
The, court finds that the claim in this case is completely preempted by the Car-mack Amendment, and thus the case was properly removed pursuant to this court’s federal-question jurisdiction.
In Beneficial National Bank v. Anderson, the Supreme Court stated that, for purposes of determining whether the complete preemption doctrine applies, “the proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive rather than on whether Congress intended that the cause of action be removable.” 539 U.S. 1, 9 n. 5, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).
While the Eleventh Circuit has yet to examine the Carmack Amendment in light of Anderson, two Circuit Courts of Ap*1345peals have. The Fifth Circuit analyzed Anderson in determining whether the Car-mack Amendment completely preempted state-law negligence, ’ breach of contract, and deceptive trade practices " claims “stemming from the loss or damage to [a plaintiffs] personal belongings as a result of a move from Texas to Virginia.” Hoskins v. Bekins Van Lines, 343 F.3d 769, 771 (5th Cir.2003). After determining that “the legal landscape surrounding the complete preemption doctrine has shifted” as a result of Hoskins, id. at 775, and after examining both Supreme Court and Fifth Circuit precedent that -evidenced the Car-mack Amendment’s “broad pre-emptive purpose,” id. at 776, the Hoskins court found that “Congress intended for the Carmack Amendment to provide the exclusive cause of action for loss or damages to goods arising from the interstate transportation of those goods by a common carrier,” id. at 778 (emphasis in original). Thus, the Court held “that the complete preemption doctrine . applies” and that, “[b]ecause the Carmack Amendment provides the exclusive cause of action for such claims,” the plaintiff in that case’s claims arose under federal law. Id.; see also Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 688-89 (9th Cir.2007) (“We hold that the Carmack Amendment is the exclusive cause of action for contract claims alleging delay, loss, failure to deliver or damage to property.... Because [the plaintiffs] completely preempted contract claim presents a federal question, the district court properly denied [the plaintiffs] motion to remand.”).
This court agrees with the analyses of the Fifth and Ninth Circuits and finds that Morris’s claim is completely preempted by the Carmack Amendment. This is consistent with Eleventh Circuit precedent. The pre-Anderson Eleventh Circuit case of Smith v. United Parcel Service, while not directly on-point from a procedural standpoint, held that the Carmack Amendment has a broad preemptive purpose. 296 F.3d 1244, 1247 (11th Cir.2002) (“To accomplish the goal of uniformity, the Carmack Amendment preempts state law claims arising from failures in the transportation and delivery of goods.”) (citing Adams Express Co. v. Croninger, 226 U.S. 491, 505-06, 33 S.Ct. 148, 57 L.Ed. 314 (1913)). Although evaluating the preemptive effect of the Carmack Amendment as a defense to state-law claims, rather than as a basis for federal-question jurisdiction, the Eleventh Circuit’s Smith decision is consistent with the cases analyzed by the Fifth Circuit in Hoskins and the Ninth Circuit in Hall. Thus, as was held in Hos-kins, actions “for loss or damages to goods arising from the interstate transportation of those goods by a common carrier” are completely preempted by the Carmack Amendment, and a Complaint alleging such an action would be removable under the court’s federal-question jurisdiction. 343 F.3d at 778 (emphasis omitted).-
In this case, the only allegations contained in the Complaint are that the Defendants failed to deliver some of Morris’s household items and that, of those items that were delivered, some were damaged, with an ad damnum of more than $10,000. These alleged failures by the Defendants in transporting the household items from Washington to Alabama relate to “loss or damages to goods arising from the interstate transportation of those goods by a common carrier.” Id. Because Congress intended the Carmack Amendment to act as the exclusive cause of action for such claims, Morris’s claim is completely preempted by the Carmack Amendment. Thus, this court has federal-question jurisdiction, and the case was properly removed to this court.
*1346
V. CONCLUSION
For the stated reasons, it is hereby
ORDERED that Plaintiff Morris’s Motion to Remand is DENIED.
. This satisfies the jurisdictional requirement of $10,000 in Carmack Amendment cases. 28 U.S.C. § 1445(b) ("A civil action in any State court against a carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments, arising under section 11706,or 14706, may not be removed to any district court of the United States unless the matter in controversy exceeds $10,000, exclusive of interest and costs.”). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224319/ | ORDER
MARK A. PIZZO, United States Magistrate Judge.
Defendant’s motion to compel (doc. 204) and Plaintiffs’ response (doc. 220) are before the Court. The District Judge and I have entered numerous orders in this FLSA collective action; there is no need to rehash the factual background. Defendant’s motion is denied, for the reasons stated here.
The first discovery category at issue pertains to resumes, cover letters, and job applications Plaintiffs submitted to subsequent employers, as well as “notes taken by employers during [Plaintiffs’] job interviews” (doc. 204 at 8). The motion is denied as moot as to this topic. Plaintiffs have already produced their resumes to Defendant, and Defendant deposed Plaintiffs about them (doc. 220 at 4). Additionally, the only case Defendant cites from this judicial district in support of its request is one that grants in part a motion to compel a non-party employer to produce personnel records in response to a subpoena. See Benavides v. Velocity IQ, Inc., No. 8:05-cv-1586-T-80, 2006 WL 680656, at *2-3 (M.D.Fla. Mar. 15, 2006). Defendant has not subpoenaed the information from Plaintiffs’ subsequent employers and instead seeks it from Plaintiffs themselves: But according to Plaintiffs, they have no other information to produce, a fact they apparently testified to at deposition. Consequently, without ruling on whether the requested information is discoverable, I find that the issue is moot.
Next, through interrogatories and document production requests, Defendant seeks all posts to Plaintiffs’ social media accounts from 2010 to the present that relate to “any job descriptions or similar-statements about this case or job duties and responsibilities or hours worked which Plaintiffs posted on Linked-In, Facebook or other social media sites.” (Doc. 204 at 11). This request includes all private messages Plaintiffs sent from these sites (Id. at 12). Defendant claims the information is relevant to its affirmative defense that Plaintiffs are not entitled to overtime compensation due to their exempt status, and “because [posts] are party admissions regarding plaintiffs job duties, responsibilities, and/or hours worked at Defendant— precisely the issues to be litigated in this case.” (Doc. 204 at 11). Plaintiffs also may have posted comments which contradict their testimony in the case about breaks and hours worked, according to Defendant.
I agree with Plaintiffs that this request is too broad. Generally, social media content is neither privileged nor protected by any right of privacy. Davenport v. State Farm Mut. Auto. Ins. Co., No.3:11-cv-632-J-JBT, 2012 WL 555759, at *1 (M.D.Fla. Feb. 21, 2012); Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D.Mich.2012). Nonetheless, Defendant “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Davenport, 2012 WL 555759, at *2 (quoting Tompkins, 278 F.R.D. at 388). Although discovery provisions are broadly and liberally construed, a request still must be tailored to appear “reasonably calculated to lead to the discovery of admissible evidence.” Rule 26(b)(1). Defendant has not met this threshold showing.
Defendant relies on Higgins v. Koch Development Corporation, No. 3:11-cv-81-RLY-WGH, 2013 WL 3366278, at *2 (S.D.Ind. July 5, 2013), a case in which plaintiffs sued a theme park for physical injuries they sustained on a ride. During discovery, the theme park asked for the plaintiffs’ social media postings. Id. The plaintiffs refused, and the district court *1348granted the park’s motion to compel. Id. at *3. The plaintiffs had alleged that their injuries severely impacted their abilities to enjoy life, engage in outdoor activities, and find jobs. Consequently, the plaintiffs’ posts were discoverable. Id. at *2. The court in Romano v. Steelcase, Inc., 30 Misc.3d 426, 907 N.Y.S.2d 650, 656 (N.Y.Super.2010), which Defendant also cites, reached a similar holding in a case in which the plaintiffs physical condition was in controversy.
But here, Plaintiffs’ physical condition is not at issue. Cf. Davenport, 2012 WL 555759, at *2 (granting motion to compel as to tagged Facebook photos because the plaintiffs physical condition was at issue). Whether or not an opt-in Plaintiff made a Facebook post during work hours or about work has no bearing on total hours worked or whether their job position qualifies for an exemption under the FLSA. Additionally, the burden of requiring all of the opt-in Plaintiffs to review all of their postings on potentially multiple social media sites over a period of four years and determine which posts relate to their job, hours worked, or this case, would be “an extremely onerous and time-consuming task.” Jewell v. Aaron’s, Inc., No. 1:12— cv-0563, 2013 WL 3770837, at *3 (N.D.Ga. July 19, 2013) (finding, in FLSA case, defendant-employer not entitled to discovery of social media posts, because it had not shown relevance of the information, and to produce it would be too burdensome). This is especially so when Defendant has nothing more than its “hope that there might be something of relevance” in the social media posts. Id. (citation and quotation omitted). Although some of the Plaintiffs testified to reading social media at some point during their work day, this does not, in and of itself, transform Plaintiffs’ social media posts into discoverable information. Additionally, some of the information Defendant seeks is protected from public view (for example, private Fa-cebook messages). Defendant’s speculation that the social media messages might include a party admission, without more, is not a sufficient reason to require Plaintiffs to provide Defendant open access to their communication with third parties. Salvato v. Miley, No. 5:12-cv-635-Oc-10PRL, 2013 WL 2712206, at *2 (M.D.Fla. June 11, 2013). This is my finding despite that Defendant has narrowed the scope of its request to seek only social media information relating to this case and Plaintiffs’ job.1
The final issue is Defendant’s request for records of Plaintiffs’ banking, credit and debit card transactions, telephone activity, and travel. Defendant argues the records are relevant because they will show the dates and times Plaintiffs were engaged in non-work activities. Defendant has agreed to limit its request to “portions of the records showing the dates and times of transactions and enough information showing that the transactions were not work-related.” (Doc. 204 at 12).
This discovery is too broad and hinges on the hope of finding something — anything — relevant to this litigation. Defendant relies on a case that is not on all fours with this one. In Mancuso v. Florida Metropolitan University, No. 09-61984-CIV, 2011 WL 310726, at *3-4 (S.D.Fla. Jan. 28, 2011), a FLSA case, the court granted in part and denied in part a plaintiffs motion to quash subpoenas that the employer-defendant had issued to plaintiffs bank. The court ordered the bank to produce plaintiffs un-redacted records to *1349plaintiff, and plaintiff to redact the records to show only the dates and times of transactions before producing them to defendant. Id. The parties in Mancuso agreed from the outset that the banking records were relevant (and the court did not address this); the plaintiffs only objection was to certain definitions included in the subpoenas. Id. at *1.
Defendant, again, has not met its threshold burden under Rule 26(b)(1). Plaintiffs admitted at deposition that they used debit and credit cards during vacation and non-work times. From this, Defendant deduces that any time Plaintiffs used their debit or credit cards, they weré not working. This leap of logic is insufficient support for Defendant’s broad request. Defendant is hoping to discover financial records that reveal Plaintiffs conducted personal banking during work hours.2 Even if they did, this is not the smoking gun Defendant seems to think it is; Plaintiffs may have engaged in personal banking during breaks from work. And although neither party focuses on Defendant’s request for Plaintiffs’ cell phone records, the motion is denied on this topic as well. The parties do not dispute that Defendant was the cellular provider for Plaintiffs and provided them phones to use for work purposes (doc. 220 at 5). Thus, Defendant already has access to the telephone records it seeks from Plaintiffs.
Conclusion
For the reasons stated here, Defendant’s motion to compel (doc. 204) is DENIED.
. Defendant also asks Plaintiffs to identify the social media sites they used during their employment with Defendant because it may be "necessary to subpoena these social media providers for such information.” (Doc. 204 at 12). Discovery has closed. Any subpoenas would be untimely.
. For example, Defendant contends that the financial records “may show that Plaintiffs took a lunch break, had discretion to attend to non-work activities during the day, or took vacations or other time off from work during the tines they now are claiming to have worked.” (Doc. 204 at 14) (emphasis added). This is too speculative to support the broad nature of the discovery Defendant seeks. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224320/ | ORDER GRANTING MOTION TO DISMISS
ROBIN S. ROSENBAUM, District Judge.
This matter is before the Court upon Defendants’ Motion to Dismiss [D.E. 27]. *1352The Court has reviewed the Motion, all supporting and opposing filings, and the record in this case and is otherwise fully-advised in the premises. For the reasons that follow, the Court now grants Defendants’ Motion to Dismiss.
I. BACKGROUND
Plaintiff Raymond Harris brings an action against Defendants United States of America, Department of Homeland Security, United States Citizenship and Immigration Services (“USCIS”), Janet Napoli-tano, Alejandro Mayorkas, Linda Swacina, and Eric H. Holder, Jr. ECF No. 19 at 1-2, ¶¶ 2-5. Harris seeks a declaratory judgment under 28 U.S.C. § 2201 (Count I) and review of an adverse agency action under 5 U.S.C. § 70S (Count II). Id. at 7-9, ¶¶ 34-43. In addition, Harris brings a claim for violation of his right to equal protection under the law under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments (Count III). Id. at 9-10, ¶¶ 44-48. Ultimately, Harris asks this Court to overturn USCIS’s decision denying him citizenship. Id.
Harris was born out of wedlock in Kingston, Jamaica, on June 6,1996, to Winsome Mullings and Winston Harris. ECF No. 19 at 3, ¶ 12. On August 14, 2008, when Harris was twelve years old, his father became a naturalized United States citizen. Id. at 3, ¶ 14. After filing the appropriate forms and interviewing at the United States Embassy and Consulate in Kingston, Harris was admitted to the United States as a lawful permanent resident on August 1, 2010, under the custody of his father. Id. at 4, ¶¶ 15-17. Harris then sought to become a United States citizen under the provisions of the Child Citizenship Act of 2000, 8 U.S.C. §§ 1431 et seq. (“CCA”).1 Id. at 4, ¶ 18. In furtherance of this goal, on September 26, 2011, Harris filed a form N-600, Application for Certificate of Citizenship, with the United States Department of State. Id.
The Field Office Director denied Harris’s application because, although Harris technically met the requirements under the CCA at 8 U.S.C. § 1431(a), he did not qualify as a “child” as defined by the Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq. (“INA”). Id. at 4, ¶ 20. The denial clarified that Harris purportedly had not been “legitimated” by his unmarried parents and, therefore, did not meet the definition of a “child” under the INA.2 Id. at ¶ 28.
*1353On August 23, 2012, Harris filed a form I-290B, Notice of Appeal or Motion, with a Motion to Reopen and a Motion to Reconsider. Id. at 4, ¶21. The Deputy Field Office Director issued a decision on October 16, 2012, denying Harris’s motion to reopen his N-600 application. Id. at 4, ¶22. Harris continues to reside in Bro-ward County in the custody of his father. Id. at 1, ¶ 1.'
Harris maintains that because all conditions precedent to acquiring United States citizenship through his father have occurred, his N-600 application was improperly denied. Id. at 6, ¶¶31, 32. Harris further contends that he has been denied rights and privileges claimed as a United States citizen within the meaning of 8 U.S.C. § 1503 and seeks a declaration that he is indeed a United States citizen. Id. at 7, ¶¶35, 37. In addition, Harris asserts that the denial of his N-600 application was arbitrary, capricious, and contrary to law within the meaning of the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. (“APA”), and that his equal-protection rights have been violated. Id. at 8, 10, ¶¶ 43, 47.
II. ANALYSIS
In their Motion to Dismiss, Defendants argue that this Court lacks jurisdiction over Harris’s 8 U.S.C. § 1503 claim because Harris has not exhausted his administrative remedies in that he failed to appeal his N-600 denial to USCIS’s Administrative Appeals Office (“AAO”).3 ECF No. 27 at 5-7. With regard to Harris’s declaratory-judgment claim, Defendants assert that the exhaustion requirement is jurisdictional and may not be waived. As for the equal-protection claim, Defendants contend that the doctrine of prudential exhaustion should require Harris to first pursue his claim with the AAO. Id. at 7. Finally, Defendants assert that Harris has failed to state a claim under the Administrative Procedure Act.4 Id. at 9.
A. Declaratory Judgment (Count I)
Harris’s first count seeks a declaration under the Declaratory Judgment Act, 28 *1354U.S.C. § 2201, that he is a United States citizen within the meaning of 8 U.S.C. § 1503(a). ECF No. 19 at 7-8, ¶¶ 34-41. Section 1503(a) specifically provides that a person denied a declaration of United States nationality may initiate a proceeding under the Declaratory Judgment Act for a judgment declaring him to be a national of the United States. 8 U.S.C. § 1503(a).
The Declaratory Judgment Act “does not, of itself, confer jurisdiction upon the courts; a suit brought under the Act must state some independent source of jurisdiction, such as the existence of diversity or the presentation of a federal question.” Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir.1989) (citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950)). Thus, an independent basis for jurisdiction must exist for the Court to review Harris’s claim for declaratory judgment.
Defendants contend that this Court lacks jurisdiction because Harris was required to further pursue administrative action in the form of an appeal to the AAO before he could properly bring suit in federal court. According to Defendants, only after exhaustion of the AAO process may an alien seek a declaration of citizenship in a district court. Section 1503(a) governs “[proceedings for declarations of United States nationality” and states, in relevant part,
If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28 [Declaratory Judgment Act] against the head of such department or independent agency for a judgment declaring him to be a national of the United States.... An action under this subsection may be instituted only within five years after the final administrative denial of such right or privilege and shall be filed in the district court of the United States for the district in which such person resides or claims a residence, and jurisdiction over such officials in such cases is conferred upon those courts.
8 U.S.C. § 1503(a) (emphasis added). Because such an action may be instituted only within five years of a final administrative denial, the question then becomes whether the denial of Harris’s I-290B Motion to Reopen or Reconsider the denial of his N-600 application constitutes a “final administrative denial.” The Court finds that it does not.
The Code of Federal Regulations provides that certain unfavorable decisions on applications for citizenship, petitions, and other types of cases may be appealed. See 8 C.F.R. § 103.3(a)(l)(ii). In addition to an appeal, an aggrieved party may exercise other avenues of redress, such as the filing of a motion to reopen or reconsider.5 See id. § 103.5(a)(l)(i). Harris contends that the denial of his Motion to Reopen or Reconsider amounted to a final administra*1355tive denial in his case. But contrary to Harris’s contention, the denial of a motion for reopening or reconsideration does not render the administrative decision final.
The governing regulations clearly contemplate that an appeal to the AAO may be taken upon the denial of such a motion when the original motion is itself appeal-able. See id. § 103.5(a)(6). In this regard, the regulations state, “A field office decision made as a result of a motion [to reopen or reconsider] may be applied [sic] to the AAO only if the original decision was appealable to the AAO.” Id. Harris has pointed to no reason that the original decision on his N-600 application or the decision on his Motion to Reopen or Reconsider is not appealable to the AAO. Nor is this Court aware of any such reason. Therefore, Harris’s Motion to Reopen or Reconsider cannot constitute a “final administrative denial” under § 1503(a) because the denial of the Motion is appeal-able. Cf. Russell v. INS, 1999 WL 675255 (N.D.Ill.1999) (finding that the plaintiff had failed to exhaust administrative remedies where he filed suit in federal court while his appeal was still pending before the AAO). As a result, Harris must first file an appeal with the AAO in order to exhaust his administrative remedies.
Courts have identified several “[k]ey reasons” for the exhaustion requirement: “1) to permit the exercise of agency discretion and expertise on issues requiring these characteristics; 2) to allow the full development of technical issues and a factual record prior to court review; 3) to prevent deliberate disregard and circumvention of agency procedures established by Congress; and 4) to avoid unnecessary judicial decisions by giving the agency the first opportunity to correct any error.” N.B. by D.G. v. Alachua County Sch. Bd., 84 F.3d 1376, 1378-79 (11th Cir.1996) (citing Ass’n for Retarded Citizens of Alabama v. Teague, 830 F.2d 158, 160 (11th Cir.1987)).
The requirement that a plaintiff first exhaust his administrative remedies before seeking redress in federal court may be either jurisdictional or nonjurisdic-tional. See Mahon v. U.S. Dep’t of Agric., 485 F.3d 1247, 1262 n. 13 (11th Cir.2007); Alexander v. Hawk, 159 F.3d 1321, 1325-26 (11th Cir.1998). An exhaustion requirement is jurisdictional if Congress has clearly premised federal jurisdiction on exhaustion of remedies. Federal courts enjoy only limited jurisdiction. United States v. Rojas, 429 F.3d 1317, 1320 (11th Cir.2005) (citations omitted). Under the Constitution, it is Congress that defines the jurisdiction of the lower federal courts. Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) (citation omitted). As the Supreme Court has explained, “[0]nce the lines are drawn, ‘limits upon federal jurisdiction ... must be neither disregarded nor evaded[.]’ ” Id. (citation omitted). Thus, if a statute requires exhaustion of administrative remedies in order for jurisdiction to lie, the district court is not free to ignore or excuse that requirement for any reason, as the court’s very jurisdiction depends on exhaustion. See McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) (“Where Congress specifically mandates, exhaustion is required.”) (citations omitted);
A nonjurisdictional exhaustion requirement may arise from either statutory language that is not jurisdictional but nonetheless requires exhaustion or from the court’s prudential considerations. See id.; see also Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1246-47 (D.C.Cir.2004). Unlike jurisdictional exhaustion requirements, courts may excuse failure to satisfy nonjurisdictional exhaustion requirements under certain limited circum*1356stances. McCarthy, 503 U.S. 140, 112 S.Ct. 1081.
Whether an exhaustion requirement is jurisdictional presents a question of statutory interpretation. Avocados Plus Inc., 370 F.3d at 1247 (citing McCarthy v. Madigan, 503 U.S. 140, 144, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992)). Courts “presume exhaustion is non jurisdictional unless ‘Congress states in clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative agency has come to a decision[.]’ ” Id. (citation omitted).
Arguably, the Eleventh Circuit’s predecessor court concluded that the exhaustion requirement set forth in Section 1503(a) is jurisdictional. In Garcia-Sarquiz v. Levi, 527 F.2d 1389 (5th Cir.1976) (per curiam), the former Fifth Circuit affirmed Garcia-Sarquiz v. Saxbe, 407 F.Supp. 789 (S.D.Fla.1974), aff'd sub nom. Garcia-Sarquiz v. Levi, 527 F.2d 1389 (5th Cir.1976) {per curiam), on the basis of the district court’s opinion in that case. The district court, in turn, found itself to be without subject-matter jurisdiction to issue a declaratory judgment under Section 1503(a) because the plaintiff had failed to bring his claim within five years of the final denial of a fundamental right or privilege of a National of the United States. 407 F.Supp. at 792. In reaching its decision, the court explained that Section 1503(a) “enables a person who has received a final denial of a right or privilege of a national of the United States upon the ground that he is not such a national, to bring an action for declaratory judgment declaring him to be such a national.” Id. The court then went on to note that “[t]he right to bring such a declaratory judgment action is limited by the requirement that the action must be brought within five years of the final denial of the right or privilege as a National of the United States.” Id. Because nineteen years had passed between the final denial of the plaintiffs right and his institution of court action, the court held that Section 1503(a) precluded jurisdiction.
As Garcia-Sarquiz is close but perhaps not exactly on all fours with the facts in the instant case, the Court further considers whether Section 1503(a)’s exhaustion requirement is jurisdictional. In so doing, the Court notes that other courts that have considered the issue have concluded that the requirement is jurisdictional. See, e.g., Johnson v. Whitehead, 647 F.3d 120, 125 (4th Cir.2011) (finding that plaintiffs habe-as corpus petition was jurisdictionally barred because he failed to exhaust his administrative remedies by appealing the rejection of his N-600 to the AAO); United States v. Breyer, 41 F.3d 884, 891-92 (3d Cir.1994) (“[A] federal district court does not have jurisdiction to declare citizenship absent exhaustion of an applicant’s administrative remedies.”) (citation omitted); Parham v. Clinton, 374 Fed.Appx. 503, 504-05 & 505 n. 3 (5th Cir.2010) (affirming district court’s dismissal of claim under Section 1503(a) for lack of jurisdiction where plaintiff did not exhaust administrative remedies); see also Ferretti v. Dulles, 246 F.2d 544 (2d Cir.1957) (affirming district court’s dismissal of plaintiffs claim for lack of jurisdiction where plaintiff did not exhaust her administrative remedies); Fletes-Mora v. Brownell, 231 F.2d 579 (9th Cir.1955) (affirming district court’s dismissal of plaintiffs claim for lack of jurisdiction where, among other shortcomings, the complaint made no averments of fact that the matter was filed within five years after final administrative denial of a claimed right or privilege); Dung Quoc Nguyen v. U.S. Dep’t of Homeland Sec., 2011 WL 1499216, *4 (S.D.Miss. Jan. 21, 2011) (based on plaintiffs failure to exhaust administrative remedies, court found itself without jurisdiction).
*1357This Court agrees that Section 1503(a)’s exhaustion requirement is jurisdictional. In reaching this conclusion, the Court starts its analysis by looking to the text of Section 1503(a). As the Eleventh Circuit has explained, “[w]hen we construe a statute, “we must begin, and often should end as well, with the language of the statute itself.’ ” Silva-Hernandez v. U.S. Bureau of Citizenship & Immigration Servs., 701 F.3d 356, 361 (11th Cir.2012) (citation omitted). When statutory language is unambiguous, courts must give it effect. See Owens v. Samkle Automotive Inc., 425 F.3d 1318, 1321 (11th Cir.2005) (citation omitted).
Here, Section 1503(a), by its terms, makes exhaustion of administrative remedies a jurisdictional requirement. In particular, the statute allows for the filing of an action in district court “only within five years after the final administrative denial [by a department, independent agency, or official of a department or independent agency] of [a right or privilege as a national of the United States]. 8 U.S.C. § 1503(a) (emphasis added). Moreover, the sentence following that requirement provides that “jurisdiction over such officials in such cases is conferred upon those [district] courts.” Id. (emphasis added). This second sentence confers “jurisdiction” on district courts in cases under Section 1503(a) “only” where the plaintiff has brought the action within five years after the allegedly offending agency has made a final determination regarding the plaintiffs rights.
Where a statute does not define its own terms, courts look to the “common usage of words for their meaning.” Koch Foods, Inc. v. Sec’y, U.S. Dep’t of Labor, 712 F.3d 476, 480 (11th Cir.2013) (citation omitted). To ascertain a word’s common usage, courts often consider the dictionary definitions of words. Id. (citation omitted). “Only” means “[exclusively; solely....” The American Heritage Dictionary of the English Language 1230 (4th ed.2000). Thus, by its terms, the language in Section 1503(a) clearly and unequivocally indicates congressional intent to bar district-court jurisdiction when a plaintiff fails to exhaust his administrative remedies, and exhaustion is a jurisdictional requirement. Because exhaustion is a jurisdictional requirement, a plaintiffs failure to exhaust administrative remedies deprives the Court of jurisdiction, and the court may not waive the exhaustion requirement. See Lifestar Ambulance Serv., Inc. v. United States, 365 F.3d 1293, 1296 (11th Cir.2004).
Not only does the language of Section 1503(a) demonstrate that the exhaustion requirement is jurisdictional, but comparison of the language employed in Section 1503(a) to that used in other statutes where courts have considered whether the provisions impose jurisdictional or nonju-risdictional exhaustion requirements further supports the conclusion that Section 1503(a)’s exhaustion requirement is jurisdictional.
For example, in Huang v. Secretary United States Department of Homeland Security, 468 Fed.Appx. 932 (11th Cir.2012), the Eleventh Circuit, in an unpublished opinion, considered whether 8 U.S.C. § 1421 (c)’s exhaustion requirement is jurisdictional and concluded that it is.6 See id. at 935; see also Karam v. U.S. Citizenship & Immigration Servs., 373 Fed.Appx. 956 (11th Cir.2010); see also Sundar v. INS, 328 F.3d 1320 (11th Cir.*13582003) (citing Eleventh Circuit cases holding that 8 U.S.C. § 1252(d)(l)’s provision that “[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right” is jurisdictional). Section 1421(c) provides, in pertinent part, “A person whose application for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this Title, may seek review of such denial before the United States district court....” 8 U.S.C. § 1421(c). The statute further instructs that the district court shall conduct de novo review, making its own findings of fact and conclusions of law and conducting a hearing de novo on the application, if the petitioner so requests. Id. Section 1421(d) specifies, “A person may only be naturalized as a citizen of the United States in the manner and under the conditions prescribed in this subchapter and not otherwise.” 8 U.S.C. § 1421(d). Based on Section 1421(c), the Eleventh Circuit held that the petitioner’s action was properly dismissed because she never had a hearing before an immigration officer, as required by the section before district-court jurisdiction could exist. Because, the court concluded, the exhaustion requirement was jurisdictional, “the district court was not authorized to read an exception, including one based on futility or the USCIS’s actions, into that requirement.” Huang, 468 Fed.Appx. at 935.
Section 1503(a) employs similar concepts. Like Section 1421(c)’s provision stating that a person “may seek review” of a denial of citizenship after a hearing, Section 1503(a) states that a person who has been denied a right or privilege of a national of the United States on the ground that he is not a national of the United States “may institute an action ... declaring him to be a national of the United States ...” in district court. 8 U.S.C. § 1503(a). Thus, both statutes allow for the filing of a district-court action upon fulfillment of the conditions set forth in the statute. And, like Section 1421(d)’s limitation providing that a person may be naturalized “only ... in the manner and under the conditions” of the applicable subchap-ter, which includes Section 1421(c), see 8 U.S.C. § 1421(d) (emphasis added), Section 1503(a)’s language authorizes review “only within five years after the final administrative denial of such right or privilege .... ” 8 U.S.C. § 1503(a) (emphasis added). As a result, fulfillment of the exhaustion requirements provides the exclusive key to federal court under both statutes.
Nor, as Harris asserts, does footnote 5 of Sundar v. INS, 328 F.3d 1320 (11th Cir.2003), somehow authorize this Court to read any exceptions into Section 1503(a)’s jurisdictional exhaustion requirement. In Sundar, the appellant attempted to argue that Hoang v. Comfort, 282 F.3d 1247 (10th Cir.2002), cert. granted, judgment vacated sub nom. Weber v. Phu Chan Hoang, 538 U.S. 1010, 123 S.Ct. 1963, 155 L.Ed.2d 846 (2003), and abrogated by Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), stood for the proposition that a futility exception applied to the exhaustion requirement in an alien’s habeas case. But Comfort concerned a constitutional challenge to 8 U.S.C. § 1226(c), a provision that allows for the detention of aliens but, unlike Section 1503(a), contains no statutory exhaustion requirement. Comfort, 282 F.3d at 1254. Because Section 1226(c) does not include a statutory exhaustion requirement or, for that matter, provide for judicial review at all, the Sundar Court found that Comfort was not instructive in determining whether 8 U.S.C. § 1521(d)(l)’s jurisdictional exhaustion requirement applies where an *1359alien has challenged his removal through a habeas petition.
In discussing Comfort, the Sundar Court quoted Comfort for the proposition that “[w]ith regard to immigration laws, exhaustion of remedies is statutorily required only for appeals of final orders of removal.” Sundar, 328 F.3d at 1326 n. 5 (quoting Comfort, 282 F.3d at 1254). The Comfort Court made this statement to emphasize that the statutory provision at issue in that case, § 1226(c), contained no exhaustion requirement. Neither Section 1503(a), nor, for that matter, Section 1251(d)(1) — the statute under review in Sundar — was at issue in Comfort, and the Comfort Court did not purport to opine on them. Moreover, Sundar, which, unlike Comfort, is binding on this Court, held that Section 1251(d)(l)’s exhaustion requirement was jurisdictional and could not be excused for futility or other reasons. Accordingly, neither Comfort nor Sundar suggests that this Court should ignore the word “final” in the text of § 1503(a) and find Harris’s unexhausted claim reviewable.
Because Section 1503(a)’s exhaustion requirement is jurisdictional, failure to obtain a final administrative denial deprives the Court of jurisdiction under Section 1503(a). As a result, Count I of the Amended Complaint must be dismissed.
B. Review of Adverse Agency Action (Count II)
Harris also asks this Court to review the agency action under the Administrative Procedure Act because he claims that the denial of his N-600 application was “arbitrary, capricious and contrary to law.” ECF No. 19 at 8-9, ¶¶ 42-43. The APA provides,
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction. If no special statutory review proceeding is applicable, the action for judicial review may be brought against the United States, the agency by its official title, or the appropriate officer. Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.
5 U.S.C.A. § 703. Thus, the APA does not provide an independent basis for judicial review where such judicial review is already provided for by a different statutory provision. See Hamby v. Janer, 808 F.2d 1433, 1434 n. 4 (11th Cir.1987) (citing Kansas City Power & Light Co. v. McKay, 225 F.2d 924 (D.C.Cir.)) (“section [703] does not of itself establish jurisdiction of the federal courts over an action not otherwise cognizable by them.”); see also Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198 (9th Cir.1998) (“it is well settled that the APA does not independently confer jurisdiction on the district courts. Rather, the APA prescribes standards for judicial review of an agency action, once jurisdiction is otherwise established.” (internal citations omitted)).
As discussed above, 8 U.S.C. § 1503(a) provides for the judicial review of Harris’s N-600 denial. Thus, APA review is not available in the instant matter because special statutory-review proceedings under § 1503(a) already exist. See Bowen v. Massachusetts, 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (“When Congress enacted the APA to provide a general authorization for review of agency action in the district courts, it did *1360not intend that general grant of jurisdiction to duplicate the previously established special statutory procedures relating to specific agencies.”); Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (“the APA does not afford an implied grant of subject-matter jurisdiction permitting federal judicial review of agency action.”). Harris’s APA claim is therefore dismissed.
C. Equal Protection Claim (Count III)
Harris alleges that Defendants violated his right to equal protection under the Fifth Amendment7 because of their different and less favorable treatment of children born to unwed parents and whose naturalized United States fathers were originally from Jamaica compared to similarly situated children with naturalized United States fathers originally from other countries. ECF No. 19 at 9-10, ¶¶ 44-48. Once again, Defendants respond that the Court lacks jurisdiction to consider Harris’s equal-protection challenge.
The Eleventh Circuit has noted that “[s]ome courts have indicated in dicta that constitutional challenges to the INA and INS procedures and some due process claims do not require exhaustion, because the BIA [Board of Immigration Appeals] does not have the power to adjudicate those claims.” Sundar, 328 F.3d at 1325 (citations omitted). But, the Eleventh Circuit has further observed, these same courts have applied the exhaustion requirement “with full force” where they have found that the claim falls within the purview of the administering agency and the administering agency can provide a remedy. Id. (citations omitted). In other words, courts have construed jurisdictional exhaustion requirements to apply to only those matters committed to the agency’s discretion in the first place. Therefore, the question here is whether they type of equal-protection challenge that Harris brings is one within CIS’s purview. Defendants suggest that it is and that Harris must first exhaust his administrative remedies before this Court may consider his equal-protection claim.
In support of their position, Defendants cite Amaya-Artunduaga v. United States Attorney General, 463 F.3d 1247 (11th Cir.2006). In Amayar-Artunduaga, the plaintiff charged that he was denied due process of law as a result of the procedural faults in his immigration proceedings. Id. at 1248-49, 1251. In particular, the plain*1361tiff complained that the immigration judge who presided over his hearing “color[ed] the hearing with his belief system” and treated the plaintiff with “heavy sarcasm and hostility,” to the extent that the proceedings were fundamentally unfair. Id. at 1251.
The Eleventh Circuit concluded that exhaustion was required before the plaintiff could proceed in court. Id. In reaching this conclusion, the Eleventh Circuit explained, “Although we have never specifically determined which due process claims require exhaustion, other circuits have determined that procedural due process claims, as well as procedural errors argued in due process terms, must be raised before the BIA.” Id. (citation omitted). Applying this same logic, the Eleventh Circuit found that the plaintiffs contention that he was denied a full and fair hearing before a neutral factfinder was “precisely the kind of procedural error which requires exhaustion.” Id. Put simply, an agency’s process in administering claims and applications over which it has statutory authority falls well within its purview.
In Yang v. United States Attorney General, 494 F.3d 1311 (11th Cir.2007) (per curiam), the Eleventh Circuit applied Amaya-Artunduaga to find that it lacked jurisdiction to consider an equal-protection challenge to BIA’s disparate treatment of legally married couples versus traditionally married couples because the plaintiff had failed to raise the claim first before BIA. See Yang, 494 F.3d at 1316; see also Sutariya v. U.S. Att’y Gen., 299 Fed.Appx. 949, 951 (11th Cir.2008). Although the court did not further elaborate on its reasoning, Yang forecloses Harris’s equal-protection claim because its facts are materially indistinguishable. Like the plaintiff in Yang, Harris asserts that his equal-protection rights have been violated by the administering agency’s interpretation of the Immigration and Nationality Act.8 Because Harris, like Yang, did not first exhaust his administrative remedies with respect to this contention, this Court lacks jurisdiction to hear the claim now.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED and ADJUDGED as follows:
1. Defendants’ Motion to Dismiss [ECF No. 27] is hereby GRANTED;
Plaintiffs Amended Complaint is DISMISSED WITH PREJUDICE;
All pending motions are DENIED AS MOOT: and
The Clerk of Court shall CLOSE this case.
. The CCA provides,
A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
8 U.S.C. § 1431(a).
. Section 1101(c)(1) defines "child” as follows:
an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child’s residence or domicile, or under the law of the father's residence or domicile whether in the United States or elsewhere, if such legitimation takes place before the child reaches the age of sixteen years and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.
8 U.S.C. § 1101(c)(1). Plaintiff Harris contends that he was legitimated under Jamaican law, and therefore meets the definition of a "child” under the pertinent immigration laws. Harris cites to the Jamaican Status of Children Act, enacted in 1976, which states,
2. — (1) In this Act—
“child” includes a child born out of wedlock. *13533. — (1) ... for all the purposes of the law of Jamaica the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other, and all other relationships shall be determined accordingly.
(2) The rule of construction whereby in any instrument words of relationship signify only legitimate relationship in the absence of a contrary expression of intention is hereby abolished.
Jamaican Status of Children Act §§ 2, 3 (1976).
. The INS established the Administrative Appeals Unit ("AAO”) in 1983 for the purpose of centralizing the review of administrative appeals. http://www.uscis.gov/about-us/ directorates-and-programs-appeals-office-aao/ administrative-appeals-office-aao (last visited April 30, 2014). Later, the INS created the Legalization Appeals Unit to adjudicate appeals of denied Legalization and Special Agricultural Worker applications under the Immigration Reform and Control Act of 1986. Id. In 1994, the two units were consolidated to create the AAO. Id. The duties of the INS were taken over by the Department of Homeland Security on March 1, 2003, pursuant to the Homeland Security Act of 2002, 6 U.S.C. §§ 251, 252, 271, 29Í. Now, the AAO is within USCIS, within the Department of Homeland Security. See http://www.usds. gov/about-us/directorates-and-programs-appeals-office-aao/administrative-appeals-office-aao. Some legal sources still refer to the "AAO,” but this Order uses the acronym AAO since it is more current.
. Defendants also argue that Harris has failed to state a claim under, the Mandamus Act. ECF No. 27 at 9. In his Amended Complaint, however, Harris withdrew all claims brought under the Mandamus Act. See ECF No. 19. Accordingly, the Court does not address this argument.
. A motion to reopen or reconsider is reviewed by the official who made the latest decision in the proceeding. Thus, the motion would be submitted to the same individual who denied Harris’s N-600, not to the AAO or to any other entity. 8 C.F.R. § 103.5(a)(1)(h). An appeal is also initially reviewed by the official who made the unfavorable decision. Id. § 103.3(a)(2)(ii). But if the reviewing official determines that favorable action is not warranted, the appeal is forwarded to the AAO in Washington, D.C., for consideration. Id. § 103.3(a)(2)(iv). A motion to reopen or reconsider is never automatically forwarded to the AAO.
. Other circuits have reached the same conclusion. See, e.g., Escaler v. United States Citizenship and Immigration Servs., 582 F.3d 288, 292 (2d Cir.2009); Aparicio v. Blakeway, 302 F.3d 437 (5th Cir.2002).
. Harris brings his equal-protection claim under 42 U.S.C. § 1983 and the Fifth and Fourteenth Amendments, but the Fourteenth Amendment applies only to state action. See Bolling v. Sharpe, 347 U.S. 497, 498, 74 S.Ct. 693, 98 L.Ed. 884 (1954), supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). Harris's Complaint is brought against federal agencies but not against any state agency. Similarly, a § 1983 claim is properly brought against only those who act under color of state, not federal, law. See Spaulding v. Poitier, 548 Fed.Appx. 587, 593-94 (11th Cir.2013) (quoting Wilson v. Blankenship, 163 F.3d 1284, 1288 (11th Cir.1998)) (“[A] Bivens case challenges the constitutionality of federal officials’ conduct, while § 1983 challenges the constitutionality of state officials’ conduct.”). Unlike the Fourteenth Amendment or § 1983, the Fifth Amendment does apply to actions of the federal government and, while it contains no equal-protection clause, courts construe its due-process clause as "forbid[ding] discrimination that is ‘so unjustifiable as to be viola-tive of due process.’ ” Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (citing Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Bolling, 347 U.S. at 499, 74 S.Ct. 693). "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (citing Weinberger, 420 U.S. at 638 n. 2, 95 S.Ct. 1225).
. Not all circuits have reached the same conclusion as the Eleventh Circuit. See, e.g., Colaianni v. INS, 490 F.3d 185 (2d Cir.2007) (holding that the court had jurisdiction to consider the plaintiffs equal-protection claim under the Immigration and Nationality Act, even though the plaintiff had not first exhausted his administrative remedies). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217082/ | MEMORANDUM**
Orland Birdsong appeals the 30-month sentence imposed following his guilty plea conviction for conspiracy to unlawfully use identification, and use of means of identification of another person to commit a felony, violations of 18 U.S.C. §§ 1028(f) and 1028(a)(7).
We dismiss the appeal for lack of jurisdiction because prior to his guilty plea conviction, Birdsong entered into a negotiated plea agreement in which he knowingly and voluntarily waived his right to appeal or collaterally attack his conviction and sentence. See United States v. Nguyen, 235 F.3d 1179, 1182-83 (9th Cir.2000) (recognizing that courts will enforce waiver of appeal rights if waiver is knowingly and voluntarily made).
Birdsong’s “Renewed Motion for Release Pending Appeal” is denied.
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217083/ | MEMORANDUM**
Reginald P. Burgess appeals pro se the district court’s judgment dismissing with prejudice his action challenging a state court order appointing a probate conservator. Burgess contends the district court erred by vacating his notice of voluntary dismissal under Fed.R.Civ.P. 41(a)(l)(i). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo whether the district court may vacate a voluntary dismissal. Amer. Soccer Co. v. Score First Enters., 187 F.3d 1108, 1109-10 (9th Cir.1999). We reverse and remand.
Because Burgess filed a notice of voluntary dismissal before defendants filed an answer or moved for summary judgment, he had an “absolute right” to a dismissal without prejudice and without judicial involvement. See id. at 1110. Therefore, we reverse the judgment dismissing with prejudice and order the case dismissed without prejudice. See id. at 1112.
Burgess’s request for judicial notice is denied.
Each party shall bear its own costs on appeal.
VACATED AND REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217090/ | MEMORANDUM**
Homestead Insurance Company appeals the district court’s sua sponte order abstaining from exercising jurisdiction over this breach of contract action and remanding it to state court. We have jurisdiction under 28 U.S.C. § 1291.1 “We review de novo whether the requirements for abstention have been met[,]” City of Tucson v. U.S. W. Communications, Inc., 284 F.3d 1128, 1132 (9th Cir.2002), and we reverse and remand.
*467Because the plaintiffs in this breach of contract action seek only compensatory damages, the district court erred by dismissing the action on the basis of abstention and remanding it to state court. See Quackenbush, 517 U.S. at 731 (“federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary”). Accordingly, we reverse the district court’s abstention order and remand for further proceedings.
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. A district court order remanding a case on the basis of abstention is an appealable collateral order under 28 U.S.C. § 1291. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712-14, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217087/ | MEMORANDUM**
Robert Edward Maxfield appeals his 18-month sentence imposed following the revocation of his supervised release. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
Maxfield contends that the district court erred by doubling the recommended guideline sentence based on facts proven by a preponderance of evidence as opposed to clear and convincing evidence. Maxfield’s reliance on United States v. Jordan, 256 F.3d 922, 928-29 (9th Cir.2001), does not disturb the Supreme Court’s holding in United States v. Johnson, 529 U.S. 694, 700, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), that the preponderance of the evidence standard applies in revocation proceedings. Because the supervised release policy statements are recommendations and not mandatory sentences, the district court does not “depart” by imposing a sentence outside the suggested range. See 18 U.S.C. § 3583(e)(3); United States v. Tadeo, 222 F.3d 623, 626 (9th Cir.2000). Accordingly, the district court did not abuse its discretion by rejecting the policy statements in favor of a sentence authorized by § 3583(e)(3). See id. at 625.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217088/ | MEMORANDUM**
Cheryl Bookrum appeals the district court’s judgment dismissing her action seeking to recover, based on California’s community property law, proceeds of a life insurance policy issued to her husband, under which she is not a beneficiary. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 (9th Cir.2002), and we affirm.
The policy at issue here is governed by federal law under the Servicemembers’ Group Life Insurance Act of 1965. See 38 U.S.C. §§ 1965—1980. The Supreme Court held in both Wissner v. Wissner, 338 U.S. 665, 70 S.Ct. 413, 94 L.Ed. 439 (1950), and Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49, 70 L.Ed.2d 39 (1981), that the servicemember’s designation of beneficiaries determines to whom the proceeds of the insurance should be paid, notwithstanding any contrary provisions of state law. The district court properly relied on these cases despite Bookrum’s contention that they were wrongly decided.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts „of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217089/ | MEMORANDUM**
Matthew Hooker appeals pro se the district court’s orders dismissing all causes of action in his second amended complaint *466with prejudice and without leave to amend. Although the district court did not enter final judgment, we have jurisdiction pursuant to 28 U.S.C. § 1291 because the district court made clear its intent to terminate the action. See Spurlock v. F.B.I., 69 F.3d 1010, 1015 (9th Cir.1995). We review de novo, Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam), and we affirm.
Hooker alleged that airline employees either drugged him to steal his possessions or allowed others to do so, and that these events led to his developing a hernia. The district court properly determined that Hooker’s action was governed by the Warsaw Convention, see Carey v. United Airlines, 255 F.3d 1044, 1048 (9th Cir.2001), and that the second amended complaint failed to state actionable Warsaw Convention claims for fraud, property loss, or personal injury or common law claims for negligent or intentional torts, see Fed. R.Civ.P. 9(b) & 12(b)(6).
Hooker’s remaining contentions lack merit.
All pending motions are denied.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217095/ | MEMORANDUM**
Pablo Loanzon De Los Reyes, a native and citizen of the Philippines, petitions pro se for review of the decision of the Board of Immigration Appeals (“BIA”) affirming the immigration judge’s denial of his application for suspension of deportation for failure to establish extreme hardship. We dismiss the petition for review for lack of jurisdiction. See Sanchez-Cruz v. INS, 255 F.3d 775, 778 (9th Cir.2001) (“Under the transitional rules, we lack jurisdiction to review the discretionary determination whether an alien seeking suspension of deportation under section 244 has met the statutory eligibility requirement of ‘extreme hardship.’ ”).
The court sua sponte changes the docket to reflect that John Ashcroft, Attorney General, is the proper respondent. The Clerk shall amend the docket to reflect the above caption.
PETITION DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217091/ | MEMORANDUM**
Thomas Ray Kennedy, III appeals pro se the district court’s dismissal of his 28 U.S.C. § 2241 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988), we affirm.
Kennedy seeks to raise a claim under Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). He contends that he may do this via § 2241 because he has already filed one 28 U.S.C. § 2255 motion, and he cannot raise a Richardson claim in a successive § 2255 motion. However, a federal prisoner seeking to challenge his conviction generally must do so by way of a § 2255 motion filed in the sentencing court. See Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir.2000). Kennedy has failed to demonstrate that § 2255 is “inadequate or ineffective” to test the legality of his detention due to either the restrictions on the filing of second or successive motions, id., or his actual innocence, id. at 954 (declining to decide whether federal prisoners who are actually innocent may resort to § 2241 when relief is not available under § 2255 because the petitioner had not shown actual innocence) (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). The district court therefore properly dismissed Kennedy’s petition. See id. *468at 956.1
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the *468courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. We do not address Kennedy’s Suspension Clause argument because it is not included in the certificate of appealability. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217093/ | MEMORANDUM**
Michael Myers appeals pro se the district court’s summary judgment for the Commissioner in his action seeking review of the Notice of Determination approving collection actions against him for his 1998 employment tax liability. We have jurisdiction under 28 U.S.C. § 1291. After de novo review, Hansen v. United States, 7 F.3d 137, 138 (9th Cir.1993) (per curiam), we affirm.
Myers’s contention that the compensation he paid to his employees was not taxable as gross income is without merit. See 26 U.S.C. § 61 (gross income includes “all income from whatever source derived”). Furthermore, contrary to Myers’s contention, the Commissioner “was entitled to collect by levy the unpaid taxes,” and timely did so “within three years from the date the tax return was filed.” Brookhurst, Inc. v. United States, 931 F.2d 554, 557 (9th Cir.1991); see also 26 U.S.C. § 6204(a) (Commissioner may “make a supplemental assessment whenever it is ascertained that any assessment is imperfect or incomplete”); id. § 6501(a) (Commissioner may make tax assessment within three years after return filed). In addition, Myers failed to raise a genuine issue of material fact as to whether the Form 4340 Certificate of Assessments and Payments was inaccurate. See Hansen, 7 F.3d at 138.
Myers contends that the Appeals Officer at the Collection Due Process Hearing and the district court failed to consider his arguments, denied him due process, and violated his First Amendment rights. These contentions are not supported by the record.
Myers’s remaining contentions are also without merit.
The Commissioner moves for sanctions pursuant to Fed. R.App. P. 38 and 28 U.S.C. § 1912. “This appeal is frivolous because the result is obvious and the arguments of error are wholly without merit.” Gattuso v. Pecorella, 733 F.2d 709, 710 (9th Cir.1984) (per curiam). Accordingly, we impose a sanction of $4,000.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217094/ | MEMORANDUM***
Jose Arturo Miguel-Miguel, a native and citizen of Guatemala, petitions pro se for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an immigration judge’s order denying his application for withholding of removal and request for relief under the United Nations Convention Against Torture (the “Convention”). We have jurisdiction pursuant to 8 U.S.C. § 1252(b). See Castro-Espinosa v. Ashcroft, 257 F.3d 1130, 1131 n. 1 (9th Cir.2001) (order). We deny the petition.
We review the BIA’s factual findings for substantial evidence, and we uphold the BIA ruling unless the evidence compels a contrary result. Hakeem, v. INS, 273 F.3d 812, 816 (9th Cir.2001).
The evidence does not compel the conclusion that Miguel would more likely than not be persecuted upon return to Guatemala because he participated in the military’s exhumation of mass graves and then deserted the military four years later. See 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(2); Lim v. INS, 224 F.3d 929, 938 (9th Cir.2000). Accordingly, Miguel failed to establish eligibility for withholding of removal. See id. (upholding BIA’s denial of application for withholding of deportation because “we cannot say that such persecution will happen, in the sense of being more likely than not” (emphasis in original)).
Substantial evidence supports the BIA’s conclusion that Miguel is not entitled to relief under the Convention because he did not demonstrate that it was “more likely than not” that he would be subjected to an “extreme form of cruel and inhuman treatment” if returned to Guatemala. See 8 C.F.R. § 208.18(a)(1); Li v. Ashcroft, 312 F.3d 1094, 1103 (9th Cir.2002).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217111/ | MEMORANDUM**
Simon Salgado-Castillo appeals his guilty-plea conviction and 57-month sentence for unlawful reentry following deportation, in violation of 8 U.S.C. § 1326(a).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Salgado-Castillo has filed a brief stating that there are no meritorious issues for review, and a motion to withdraw as counsel of record. SalgadoCastillo has not filed a pro se supplemental brief.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no further issues for review. Counsel’s motion to withdraw is GRANTED and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217096/ | MEMORANDUM**
Robert Lee, Jr. appeals pro se the tax court’s decision upholding the Commission*472er of Internal Revenue’s determination of federal income tax deficiencies for the years 1995, 1996, 1997 and 1998. We have jurisdiction pursuant to 26 U.S.C. § 7482. We review de novo the tax court’s conclusions of law, and its findings of fact for clear error. DHL Corp. v. Comm’r, 285 F.3d 1210, 1216 (9th Cir.2002). We affirm.
The tax court did not err in upholding the Commissioner’s deficiency assessments. Although the Commissioner proffered numerous documents evincing Lee’s income during the years in question, Lee’s sole evidence was his bare denial of receipt of income and his objection to the Commissioner’s evidence on Fifth Amendment grounds. Under these circumstances, the tax court properly found that the Commissioner had established that Lee had received the income assessed. See United States v. Rylander, 460 U.S. 752, 758, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983) (noting that assertion of Fifth Amendment privilege is not “a substitute for evidence that would assist in meeting a burden of production”).
Lee contends that the tax court erred by admitting third party records that were hearsay and lacked authentication. We review for abuse of discretion the tax court’s evidentiary rulings. Hudspeth v. Comm’r, 914 F.2d 1207, 1213 (9th Cir.1990).
The tax court properly applied Tax Court Rule 91(f) and properly determined that the third party records were self-authenticating, see Fed.R.Evid. 902(1), and exempted from the hearsay rule, see Fed. R.Evid. 803(10); United States v. Neff, 615 F.2d 1235, 1241 (9th Cir.1980). The tax court also properly determined that these rulings did not present a real and appreciable danger of self-incrimination to Lee, see McCoy v. Comm’r, 696 F.2d 1234, 1236 (9th Cir.1983), or violate Lee’s Sixth Amendment right to confrontation of witnesses, see Neff, 615 F.2d at 1241-1242 (holding that admission of documents under Rule 803(10) does not violate right to confrontation).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217097/ | ORDER
The Memorandum disposition filed February 12, 2003, is amended. The Amended Memorandum disposition will be filed contemporaneously with this Order.
With this amendment, the petition for rehearing is DENIED. No further petitions for rehearing may be filed.
AMENDED MEMORANDUM**
Forces Action Project, a smokers’ rights organization, and individual smokers filed this action against the Attorney General of the State of California and four major cigarette manufacturers. Plaintiffs seek to invalidate the Master Settlement Agreement (MSA), in which 46 states and several U.S. territories agreed to settle their claims against the cigarette manufacturers for recovery of smoking-related healthcare costs. Plaintiffs sought leave from the district court to file an amended complaint alleging that, through the MSA, Defendants are operating an output cartel and controlling cigarette prices in violation of the Sherman Anti-Trust Act, 15 U.S.C. §§ 1-7. The district court denied Plaintiffs’ motion to amend.
Plaintiffs assert that the district court committed an error of law by relying on undue delay alone as justification for denying their motion to amend. See Bowles v. Reade, 198 F.3d 752, 758 (9th Cir.1999) (“Undue delay by itself ... is insufficient to justify denying a motion to amend.”). However, we also have held that, even if a district court provides an insufficient explanation for denying a motion to amend, we may affirm if a satisfactory ground for denial is “readily apparent” from the record. Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.1989).
*474It is readily apparent from this record that Defendants will suffer prejudice if Plaintiffs are allowed to amend their complaint. See Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 (9th Cir.1999) (citing prejudice to the opposing party as a ground for denial of leave to amend). Because dismissal of the entire action would be warranted if Plaintiffs had not belatedly sought to allege antitrust violations, Defendants will incur additional litigation expenses if Plaintiffs’ amendment is allowed. See Ascon Props., 866 F.2d at 1161 (“To put [the defendant] through the time and expense of continued litigation on a new theory, with the possibility of additional discovery, would cause undue prejudice.” (citation and internal quotation marks omitted)).
Additionally, we note that Plaintiffs presented no new facts, but only new theories, and provided no satisfactory explanation for their failure to develop all theories earlier. See Allen v. City of Beverly Hills, 911 F.2d 367 (9th Cir.1990) (affirming denial of leave to amend under that standard). In the circumstances, the district court did not abuse its discretion.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217098/ | MEMORANDUM ***
Ronaldo Quinonez-Colop (“Quinonez-Colop”), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“Board”) decision denying his application for asylum and withholding of deportation. Quinonez-Colop also seeks to be “repapered.” Quinonez-Colop contends that substantial evidence does not support the Board’s finding that he did not establish past persecution or a well-founded fear of future persecution “on account of’ his political opinion. Because the record does not show that Quinonez-Colop’s alleged persecution was “on account of’ a political belief, we affirm the Board’s dismissal of the asylum and withholding application.
To be eligible for asylum, an applicant must show that he is “unwilling or unable” to return to his home country “because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INS v. Elias-Zacarias, 502 U.S. 478, 482-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1991).
Quinonez-Colop argues that he was eligible for asylum on account of an imputed political opinion—the political opinion of neutrality towards the guerrillas in Guatemala. Thus, in order for him to establish eligibility for asylum, Quinonez-Colop must demonstrate that he was persecuted or had a well-founded fear of future persecution based on his political neutrality. Even accepting Quinonez-Colop’s claim of imputed political opinion as true, his claim for asylum must fail, because substantial evidence supports the Board’s finding that “there was no basis for concluding that the guerillas were interested in persecuting the applicant because his political beliefs were antithetical to theirs.” In re Quinonez-Colop, A70 803 772 at 2 (Bd.Imm.Ap. Nov. 29, 2001).
Quinonez-Colop also requests that he be “repapered.” Section 309(c)(3) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIR-IRA”) grants the Attorney General the discretion “to terminate [deportation] proceedings in which there has not been a final administrative decision and to reinitiate [removal] proceedings under [IIRIRA].” Pub. Law No. 104-208, 110 Stat 3009 (1996). This procedure is commonly referred to as “repapering.” As the Board indicated, Quinonez-Colop does not qualify for repapering, because that procedure applies to respondents in deportation or removal proceedings, and Quinonez was placed in an exclusion proceeding. See In re G-A-C, Interim Dec. (BIA 1998).
Therefore, the Board’s decision is affirmed.
PETITION DENIED.
This Disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R.36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217099/ | MEMORANDUM**
Jose Martinez challenges his sentence of twenty-four months for importation of marijuana in violation of 21 U.S.C. § 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Martinez waived his right to appeal the district court’s two-point sentence enhancement under U.S. Sentencing Guideline § 3B1.4 by failing to raise it in his opening brief. ‘We ‘will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.’ ”1 We conclude that the circumstances of this case do not warrant deviating from this general rule.2
Although Martinez did not waive his right to challenge the constitutionality of 21 U.S.C. § 960,3 United States v. Mendoza-Paz4 forecloses his argument.5
His final argument, that § 960 requires knowledge of the type and quantity of the controlled substance at issue, fails as well. When drug quantity and type expose a defendant to a higher statutory maximum sentence than he would otherwise receive, knowledge and quantity must be charged and proved.6 In circumstances such as these, however, when drug quantity and type did not expose a defendant to a higher maximum sentence, no such requirement applies.7
Therefore, we AFFIRM.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
. United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992) (quoting Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir.1986)).
. See id. (describing exceptions to general rule).
. See United States v. Caperell, 938 F.2d 975, 977 (9th Cir.1991) (stating that a guilty plea does not waive jurisdictional challenges, such as challenges to a statute’s constitutionalily).
. 286 F.3d 1104 (9th Cir.), cert. denied - U.S. -, 123 S.Ct. 573, 154 L.Ed.2d 459 (2002).
. Id. at 1109-10.
. See United States v. Minore, 292 F.3d 1109, 1117 (9th Cir.2002), cert. denied - U.S. -, 123 S.Ct. 948, 154 L.Ed.2d 848 (2003).
. See id.; see also United States v. Carranza, 289 F.3d 634, 644 (9th Cir.), cert. denied - U.S. -, 123 S.Ct. 572, 154 L.Ed.2d 458 (2002). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217152/ | PER CURIAM.
Eugene J. Carter appeals from a decision of the Merit Systems Protection Board (“the Board”), No. SF-0752-00-0053-B-l (Jan. 22, 2002), which affirmed the agency’s dismissal of Carter from his position as a supervisory border patrol agent. Because this court lacks jurisdiction, we dismiss.
This court does not have jurisdiction to review a final Board decision in some “situations in which the employee is challenging judicially the board’s determinations of both the discrimination and nondiscrimination issues.” Williams v. Dep’t of the Army, 715 F.2d 1485, 1491 (Fed.Cir.1983) (en banc). This court can, however, exercise jurisdiction in an otherwise appropriate case if a petitioner expressly states that the issue of discrimination will not be pursued and is abandoned. Daniels v. United States Postal Serv., 726 F.2d 723, 724 (Fed.Cir.1984). Following his removal, Carter alleged that the agency discriminated against him on the basis of a handicapping condition. He specifically contended that the agency could have temporarily reassigned him to a light duty position. At the Board, Carter identified three disputed sub-issues relating to his discrimination claim: (1) whether he was disabled under the definition set forth at 29 C.F.R. § 1630.2, (2) whether he was substantially limited in major life activities other than working, and (3) whether he was limited in the major life activity of working. On appeal to this court, Carter filed a Federal Circuit Rule 15(c) “Statement Concerning Discrimination” and indicated that “any claim of discrimination ... has been abandoned or will not be raised or continued in this court or any other court.”
Notwithstanding his Rule 15(c) statement, Carter presents to us an argument based entirely on his allegations of discrimination by the agency. The arguments in his opening informal brief cite the Americans with Disabilities Act and the Federal Rehabilitation Act. In his response brief, he argues whether he was able to *704perform certain positions within the agency. On October 31, 2002, the agency moved to dismiss Carter’s appeal for lack of jurisdiction because the only issue raised was whether Carter failed to prove his claim of discrimination before the Board. A single judge panel of this court denied the motion to dismiss, finding that “Carter may be able to present arguments concerning the agency’s refusal to assign him to a light duty position without asserting any discrimination claims.” We have since reviewed Carter’s submissions to this court, including those filed after the agency’s motion to dismiss, and the record before the Board. Carter has not presented any arguments that are divorced from his discrimination claim. Because we lack jurisdiction to hear such claims, we must dismiss the appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217154/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
*705AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217101/ | MEMORANDUM**
Juan Bautista Higuera-Ceeena appeals his conviction for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960, and for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841. Higuera-Ceeena raises three claims on appeal: (1) his Sixth Amendment and due process rights were violated by the district court’s refusal to permit evidence that the customs agent, in an unrelated case, used lies to obtain an involuntary confession; (2) the agent’s lies to Higuera-Ceeena rendered his confession involuntary; and (3) 21 U.S.C. §§ 841 and 960 are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court is affirmed.
The district court did not abuse its discretion by excluding, pursuant to Fed. R.Evid. 403, evidence of the custom agent’s lies to a different defendant in an unrelated case. United States v. Ross, 206 F.3d 896, 898 (9th Cir.2000). While the district court improperly limited Higuera-Cecena’s cross-examination of the agent, such error was harmless in light of the testimony Higuera-Ceeena elicited regarding the agent’s deceptive interview techniques, and any such limitation did not contribute to the jury’s verdict. See Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 1832-33, 144 L.Ed.2d 35 (1999). Furthermore, considering the totality of the circumstances, we conclude that Higuera-Cecena’s confession was voluntary, despite the agent’s lies. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 494-95 (9th Cir.1997). Finally, Higuera-Cecena’s challenge to the constitutionality of 21 U.S.C. §§ 841 and 960 is foreclosed by United States v. Hernandez, 314 F.3d 430, 437 (9th Cir.2002).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
Subsets and Splits